The bar of five years under the second proviso to Section 21 (8) of the U. P. Act No. XIII of 1972 is applicable only when rent has earlier been revised under the provisions of Section 21 (8) of the Act and not when the parties by mutual agreement have revised the rent.

( 1 ) BY means of this writ petition, the petitioners have prayed for quashing the order dated 7. 6. 1996 passed by the District Judge, Dehradun, respondent No. 1 allowing Rent Appeal No. 93 of 1995 in part which was preferred by the landlord against the order dated 27. 7. 1994 made by the Additional District Magistrate under the delegated powers of the District Magistrate.

( 2 ) IT is not disputed that the petitioners are tenant in the accommodation in question of which respondent No. 2 is the landlord. It is also not disputed that the petitioners were paying rent at the rate of Rs. 1,654 per month. The landlord moved an application under Section 21 (8) of the u. P. Act No. XIII of 1972. (hereinafter referred to as the Act) for enhancement of rent. The reports of valuer from both the sides were filed before the Addl. District Magistrate. The said authority, however, rejected the landlords application mainly on the ground that since rent had already been determined earlier in the year 1989, the application under Section 21 (8) which was moved on 15. 3. 1993 was not maintainable. The appellate authority, however, overruled the said view of the District Magistrate holding that the bar of five years relied upon by the tenant was applicable only when rent has earlier been revised under the provisions of Section 21 (8) of the act and it was not applicable where the parties by mutual agreement have revised the rent. The appellate authority thereafter examined the matter and has determined the market value of the building under the tenancy of the petitioner at Rs. 4. 48,452 and the monthly rent at Rs. 3,737.

( 3 ) LEARNED counsel appearing for the petitioner firstly argued that the application of the landlord for enhancement of rent moved under Section 21 (8) of the Act was not legally maintainable because of the bar contained in second proviso to Section 21 (8) which states that similar application for determination of rent is not maintainable before the expiration of a period of five years from the date of the last order of enhancement. He argued that the District Magistrate in the present case with the mutual agreement of the landlord had fixed the rent at the rate of Rs. 1,654 per month by the order made in the year 1989 and thus the present application moved on 15. 3. 1993 for enhancement of rent was not maintainable. This submission of the learned standing counsel is wholly misconceived. The second proviso to Section 21 18) of the Act reads as under : "provided further that a similar application for further enhancement may be made after the expiration of a period of live years from the date of the last order of enhancement. "

( 4 ) A perusal of the above proviso would show that a similar application for further enhancement of rent can be made only after the expiration of a period of five year from the date of the last order of enhancement. The expression "from the date of the last order of enhancement" obviously refers to an order of enhancement made under Section 21 (8) earlier and not to an order fixing the rate of rent without taking recourse to the provisions of Section 21 (8) of the act.

( 5 ) IN the case of M/s. Tyre Corporation of India Ltd. v. Krishna Lal and others, 1994 (1) ARC 353, a single Judge of this Court took the view that even though there may be an agreement between the parties limiting their rights regarding the rate of rent, still the landlord has a right to move an application under Section 21 (8) of the Act for the enhancement of rent.

( 6 ) IN the present case, it was not the defence of the petitioners before the Courts below that any other application excepting the present application had been moved by the landlord under section 21 (8) of the Act or that the rate of rent had been determined earlier also under Section 21 (8) of the Act. The appellate authority has assigned valid and cogent reasons for rejecting this contention of the petitioners and this Court does not find any sufficient