ORAL JUDGMENT: The petitioner-tenant has challenged the order dated 4-2-1994 passed in review, order dated 30-11-1992 passed in appeal and order dated 19-8-1991 passed by the Rent Controller under clause 7 of C.P. and Berar Letting of Houses and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order), determining the fair rent of premises in his occupation at Rs. 3/- per square feet. It is stated by the learned counsel for the petitioner that the petitioner has continued to pay rent at Rs. 3/- per square feet during the pendency of writ petition.

2. I have heard Smt. Dewani, learned counsel for the petitioner, Shri Kankale, learned AGP for respondent No. 1 and Shri Chandurkar, learned counsel for respondent No.2.

3. The learned counsel for the petitioner has stated that in this matter, Rent Controller has not passed a separate order on preliminary point as he has done in other matters. It is argued that clause 4 requires the Rent Controller to first record its satisfaction about insufficiency of existing rent being paid and after that satisfaction is reached, enquiry under clause 5 has to be taken to find out what is fair rent. In this case, Rent Controller has passed a joint order on 19-8-1991 and has first held that existing rent being paid was insufficient and thereafter has proceeded to decide the fair rent. The learned counsel contends that following such procedure, Scheme of Rent Control Order in this respect has been violated and the petitioner has been deprived of a chance to file appeal under clause 4 challenging the finding of Rent Controller about insufficiency or inadequacy of rent being paid. It is also stated that because the petitioner was expecting only an order under clause 4, the petitioner did not examine an Engineer or other tenants to show the position or nature of construction of tenanted premises and to establish comparative rates being received by other landlords for similar structures. It is contended that because of this, a serious prejudice has been caused to the petitioner-tenant. Though this error has been pointed out to appellate authority and thereafter to reviewing authority, the authorities have mechanically brushed it aside. Reliance has been placed upon the judgments of this Court in the case of Forest Development Corporation of Maharashtra Ltd. vs. State of Maharashtra, reported at 1988 (4) Bom.C.R. 228, Oyaldas vs. Shrikant, reported at 1986 Mh.L.J. 706, Shrikisan H. Shop vs. Manaklal, reported at AIR 1953 Nagpur 284. In order to demonstrate prejudice, attention has been invited to factors which are required to be looked into while proceeding further by the Rent Controller under clause 5 by placing reliance upon the judgment reported in the case of Gulabrao vs. Devidas, reported at 1971 MhLJ. 36, NOC 75, and it has also been stated that the application filed did not disclose the year of construction and hence it was liable to be dismissed. Support is sought to be derived from the judgment of this court in the case of Shantilal vs. Secretary, K.U.B.S., reported at 1995(2) MhLJ. 12, for this purpose.

4. Shri Chandurkar, learned counsel for the respondent-landlords contends that orders passed by all three lower authorities are concurrent and findings reached are based upon evidence adduced. He contends that there is no law which requires separate trial under clause 4 and clause 5 of Rent Control Order. He argues that by very nature of proceedings, evidence under clause 4 and evidence under clause 5 is bound to be overlapping and if such a view of separate trial is accepted, it would result in unnecessary duplication of work by the Rent Controller. He argues that none of the judgments on which the petitioner has placed reliance hold that joint trial is not permissible. He further invites attention to the judgment in the case of Randhirsingh vs. Chunnilal, reported at 1972 MhLJ. NOC 28, to point out that while challenging the determination of fair rent under clause 7, the petit

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