RAJIV SAHAI ENDLAW, J.

1. CM (M) 48/2011 under Article 227 of the Constitution of India is preferred impugning the order dated 25th October, 2010 of the Civil Judge dismissing the suit filed by the petitioners therein as barred by the provisions of the Delhi Rent Control Act, 1958. Though technically speaking, a CM(M) Petition under Article 227 of the Constitution of India against such dismissal of suit does not lie, the remedy of first appeal being available there against, but notice thereof was issued. After notice the Learned Single Judge before whom the said CM(M) 48/2011 came up for hearing, being in doubt as to the correctness of the view taken by the another Single Judge of this Court in M/s. Pearey Lal Workshop Pvt. Ltd. v. Raghunandan Saran Ashok Saran 155 (2008) DLT 145 (Pearey Lal) and being of the view that the same required looking into by a Larger Bench, vide order dated 12th May, 2011 referred the CM(M) Petition to a Larger Bench. That is how the same is before us.

2. RSA 116/2011 has been preferred impugning the judgment dated 9th April, 2010 of the Civil Judge rejecting the plaint in the suit preferred by the appellant as well as the judgment dated 4th March, 2011 of the Learned Additional District Judge dismissing the first appeal preferred by the appellant. The said RSA 116/2011 came up for consideration before the same Learned Single Judge of this Court, who had made the reference aforesaid; finding the legal issue entailed therein to be the same as in CM(M) 48/2011, the said RSA 116/2011 was also directed to be listed before us.

3. Needless to mention, the reference to us is of the legal question. However since the reference order does not frame the said legal question, before framing the same, it is deemed expedient to set out the background facts.

4. The suit subject matter of CM(M) 48/2011 was filed for recovery of possession of immovable property and for arrears of and future damages for use and occupation. It was the case of the petitioners/plaintiffs in the plaint that the said immovable property had been let out to the respondent/defendant therein on 3rd November, 1987 at a monthly rent of Rs.150/-; that the respondent/defendant had not paid rent w.e.f. 1st July, 2009; that they as landlords had determined the tenancy of the respondent/defendant vide notice dated 5th January, 2010; that the respondent/defendant w.e.f. 1st February, 2010 was liable to pay damages for use and occupation of the premises @ Rs.10,000/-per month. Para 5 of the plaint is significant and is set out herein below:-

“5. That the Defendant has lost protection of the provisions of DRC Act, 1958 with regard to suit premises after taking into account the inflation, fall in value of rupees, charges (sic changes) in the wholesale price index since 1987 till date. If the value of Rs.150/-is considered in this context, this amount would not be less than Rs. 10,000/-. The MCD has started claiming house tax as per the basis of Unit Area System instead of rent received by the landlord. The provisions of Sections 4,6&9 of DRC Act were declared unconstitutional in 1992 RLR 149.”

5. The respondent/defendant in CM(M) 48/2011 inter alia pleaded that the suit as framed was barred by the provisions of the Delhi Rent Act. Accordingly a preliminary issue to the said effect was framed. The petitioners/plaintiffs, to contend that the suit was not so barred, relied on Pearey Lal (supra).

6. The Learned Civil Judge in the judgment impugned in CM(M) 48/2011 held the judgment of the Learned Single Judge of this Court in Pearey Lal to be not coming to the rescue of the petitioner/plaintiff since there were no allegations of sub-tenancy in the present case as found in Pearey Lal. It was further held that Pearey Lal itself had observed the need for a mechanism to balance the interest of the tenant and the landlord and for the landlord to claim increase in rent keeping in view the price index; that the Courts could not assume the role of the legis