JUDGMENT S.S. Dhavan, J. - This is a landlords appeal from the decree of the Second Additional Civil Judge, Dehradun declaring the rent of premises known as the Empire Cinema to be payable at the rate of Rs. 375/- per month from 2nd February, 1955 and dismissing his suit for the recovery of Rs. 27,375/- as arrears of rent at the rate of Rs. 1,000'-per month with pendente lite and future interest, or in the alternative, for Rs. 26,741/67 as damages or compensation for use and occupation. The relevant fact3 are these. The Plaintiff-Appellant Lala Krishan Chand Jain is the owner and landlord of a building No. 13A Rajpur Road, Dehradun a portion of which is a cinema house and another portion a skating rink. The dispute relates to the portion used as a cinema which is on the ground floor. The building was constructed before the Second World War, about the year 1935, though the exact year is not known. The present tenant of the Cinema house (here inafter called the Cinema or the Empire Cinema) is the Defendant Respondent Ganga Dhar Juyal. The circumstances in which he became the tenant are somewhat peculiar. Previously the Cinema was let out to one Nitya Nand Khanna on Rs. 550/-per month exclusive of certain taxes. He defaulted in payment of rent and the landlord (the Appellant before us) obtained a decree for his ejectment. However, there was a compromise in the execution proceedings under which Nitya Nand Khanna was permitted to occupy the Cinema for five years provided he paid Rs. 850/- every month as mesne profits for use and occupation plus certain taxes; and also satisfied the decree for arrears of rent before 15th March, 1950. The decree for ejectment was to remain pending but in abeyance during the period of occupation by Nitya Nand Khanna. This agreement was accepted by the court. The agreement lasted till 1954 when Nitya Nand Khanna found himself unable to make the payment under the compromise agreement. At this stage the Defendant Respondent Ganga Dhar Juyal entered the scene. He made an offer to Nitya Nand Khanna to run the Cinema on terms which were accepted by Khanna and incorporated in a deed of agreement dated 31st March 1954 (Ex 50). The consent of the landlord to this agreement that he was still the decree holder was obtained by the Defendant Ganga Dhar Juyal. He made an offer to Nitya Nand Khanna to run the Cinema on terms which were accepted by Khanna and incorporated in a deed of agreement dated 31st March 1954 (Ex 50). The consent of the landlord to this agreement that he was still the decree holder was obtained by the Defendant Ganga Dhar Juyal. Very briefly, the Defendant agreed to pay Rs. 877/8/- per month as "rent" to the owner of the building "on behalf of Khanna", a further sum of Rs. 550/-every month as hire of the machinery equipment out of which Rs. 400/- was to be paid to the landlord towards the payment of the decree for rent against Khanna and the balance of Rs. 150/-direct to Khanna. The Defendant paid the rent for three months and then defaulted. Consequently, there was a default in the payment of the decretal amount due to the landlord who became entitled to enforce the decree for ejectment under the compromise agreement. It was argued in this appeal that Juyal deliberately defaulted to bring about the ejectment of Khanna so that the accommodation became vacant and he could obtain an allotment order in his own name, and then repudiate his obligation to pay the agreed rent. The landlord (Appellant before us) applied for ejectment and obtained possession on 16th November, 1954. After this, two applications were filed before the Rent Control and Eviction Officer (hereinafter called the RG and EO) one by the landlord for the release of the building in his favour and the other by the Defendant Juyal for its allotment to him. The District Magistrate without deciding the landlord's application passed on allotment order in favour of Juyal while the landlords' application under Rule 6 was still pending before the RC and EO. This order was quashed by this Court on a petition by the landlord under Article 226 of the Constitution. On remand, however, the RC and EO rejected the landlords' prayer for release under Rule 6 and the Cinema was again allotted to the Respondent by an order dated 14thJanuary 1958 which was to take effect from 2nd February 1955 the date on which the Defendant Juyal had obtained possession with police aid by virtue of the first allotment order. 2. From this stage the dispute between the landlord and the tenant over the rate of rent commenced. 2. From this stage the dispute between the landlord and the tenant over the rate of rent commenced. The first shot was fired by the Respondent Juyal on 31.1 1958 when he sent the Appellant an account of the "rent payable from 11th November, 1955 till 31st January 1958 at the rate of Rs. 375/37 n.p. per month plus 25 per cent, making a total of Rs. 8,186/28 n. p; but he deducted a sum of Rs. 7,662/56 n. p. which he claimed as due to him as costs of repairs, furnitures, electric fittings, fire fighting equipment and other items and sent the Appellant a cheque for Rs. 523/72 n. p. as balance due to you". Juyal offered rent from the date of the second allotment order, 11th November 1955 but none for the period between 2nd February and 11th November 1955 when he occupied the Cinema under the first allotment order. He did not even mention this period in his letter. The Appellant sent a reply on the 11th March 1958, rejecting the rate of Rs. 375.37 n. p. per month based on the Municipal Assessment of 1942, as most inadequate, and returned the cheque for Rs. 523.72. He pointed out that he had already applied for the determination of the annual reasonable rent and gave the Defendant notice that after this determination he would take necessary action against him in accordance with law for recovery of proper and fair arrears of rent. He denied that the Respondent had spent any amount on repairs and other items or has right to adjust this amount against rent. 3. The Appellant having already moved the RC and EO u/s 3A of the UP Control of Rent and Eviction Act (hereinafter called the Act) for determining the reasonable annual rent of the Cinema house, that officer, by his order dated March 14, 1958 (Ex A 3), fixed the reasonable annual rent of the Cinema at Rs. 375/-per month cr Rs. 4500/- per annum. The Appellants next step was to serve notice on the Respondent (Ex 98, dated 8.5.1958) that the rent fixed by the RC and EO was most inadequate "and he intended to file a suit u/s 5(4) of the Act for the fixation of rent but meanwhile, without prejudice to his rights", he fixed the rent at Rs. 375/-per month from the date of the tenancy. 375/-per month from the date of the tenancy. A week later he sent another notice (Ex 99, dated 16.5.58) in which, without prejudice to his own right to file a suit for fixation of rent u/s 5(4), he gave the Respondent the choice of two alternatives either to pay a sum of Rs. 14,625/- as rent from 2nd February 1955 till 1st May 1958 at the rate of Rs. 375/- per month, or, if the Respondent wanted the tenancy to commence from the date of the allotment order (4.1.58) to pay mesne profits at the rate of Rs. 1000/- per month for use and occupation for the earlier period of 3 years and rent for the rest of the period at the rate of Rs. 375/- per month making a total of Rs. 39,230/-. Obviously the Appellant did not seriously expect the Respondent to pay him Rs. 39,230/- and must have written the letter to force the issue of the date of the commencement of tenancy and compel the Respondent to declare his stand on this question. The Respondent sent him a reply on 17th June 1958 (Ex 10) enclosing a cheque for Rs. 14,625/- as rent upto date at the rate of Rs. 375/- per month under protest, and intimated that he intended to take legal steps for the reduction of the rent- In his letter he again made a counterclaim for certain expenses for repairs, costs of electric fittings, and other items. The Appellant countered this reply with a notice dated 23rd Tune 1958 (Ex 100), calling upon the Respondent to agree within a week to pay Rs. 1000/- per month as rent with effect from 2nd February 1955 and intimated that if the Respondent failed to agree, a suit for fixation of rent and allied reliefs would be filed against him. As the Respondent sent no reply, the Appellant filed the present suit on 11th July 1958. He had already accepted without prejudice the sum of Rs. 14,625/-which was tendered by the Respondent under protest and also without prejudice to his right to get the rent reduced. The tender and acceptance being without prejudice they do not affect any rights of the parties in this suit and no argument was based on this payment. 4. He had already accepted without prejudice the sum of Rs. 14,625/-which was tendered by the Respondent under protest and also without prejudice to his right to get the rent reduced. The tender and acceptance being without prejudice they do not affect any rights of the parties in this suit and no argument was based on this payment. 4. In his plaint, the Appellant narrated the facts which resulted in the allotment of the Cinema house to the Respondent and stated that to avoid further litigation he accepted the Defendant as tenant with retrospective effect and the Defendant also agreed to be a tenant with retrospective effect but no rate of rent could be agreed upon and the Appellant moved the RC and EO to declare the annual reasonable rent as defined u/s 2(f) of the Act. He stated that that officer fixed it at Rs. 375/- per month which, the Appellant submitted, was grossly inadequate. He claimed that the fair rent of the Cinema should not be less than Rs. 1000/- per mensem, taking into consideration its previous rent, the prevailing rent on the date of the suit for similar accommodation in the locality, and the good situation and the quality of the building. The other material circumstances alleged by the Appellant were (1) that the Cinema was let furnished-a privilege not enjoyed by the tenant of any other Cinema in Dehradun; (2) that the Defendant himself had rented this very Cinema at a rent of Rs. 877/8/- under the agreement of 31st March 1954 with Khanna; and (3) the Defendant was using and occupying two boxes, each with 10 seats, which were not included in the tenancy of the previous tenants. 5. It is very important to note that fixation of rent was not the only relief claimed by (he Appellant. He asked for five reliefs: (a) that the rent of the Cinema be fixed at Rs. 1000/-per month payable from 2nd February, 1955; (b) either a decree for Rs. 27,375/-as rent with pending and future interest, or, a decree for Rs. 267,41.67 as partly compensation for use and occupation or mesne profits for the period from 2nd February 1955 to 14th January 1958 and partly rent for the period from 15th January 1958 to 13th July 1958; (c) a decree for Rs. 27,375/-as rent with pending and future interest, or, a decree for Rs. 267,41.67 as partly compensation for use and occupation or mesne profits for the period from 2nd February 1955 to 14th January 1958 and partly rent for the period from 15th January 1958 to 13th July 1958; (c) a decree for Rs. 25/- being the cost of notices served on the Defendant; (d) a decree for the full costs of the suit; and (e) any other relief which might appear to the Court tit and proper. Under relief (b) the prayer for a decree for Rs. 267,41.67 as partly compensation and partly rent was demanded as an alternative to a decree for Rs. 273,75/as rent, presumably as a safeguard against the Defendant not admitting that the tenancy commenced from February 1955 or the court holding that in law the allotment order could not create a tenancy with retrospective effect. 6. The Defendant Respondent resisted the suit and contended that the Cinema house was "in a rotten condition'', and its rent should not be more than Rs 375/- per month as fixed by the RG and EO. He also claimed the right to adjust against the rent a sum of Rs. 7662.56 spent by him on purchase of furniture and fire fighting equipment; cost of electric fittings; of repairs of the building and whitewashing, and other items. 7. Both sides led evidence oral and documentary. The Appellant produced six witnesses and the Respondent three including the party in each case. The Appellant deposed that his Cinema house was situate on Rajpur road which he claimed to be a very good locality and the main fashionable centre of Dehradun; that three other Cinemas Odion, Orient and Digvijai, were on this road; that his Cinema house had the biggest hall in Dehra Dun; that it had a pucca building and the main gate was on the Rajpur road; that the previous tenant Khanna agreed to pay Rs. 550/- per month under the Compromise; that later the Defendant himself made an arrangement with Khanna taking over the Cinema at Rs. 877/8/- per month; and that the Cinema house could be let out on a rent higher than Rs. 1000/- per month. In cross examination he admitted that the Cinema was ready in the year 1935, that its rent (including the furniture) before the war was Rs. 877/8/- per month; and that the Cinema house could be let out on a rent higher than Rs. 1000/- per month. In cross examination he admitted that the Cinema was ready in the year 1935, that its rent (including the furniture) before the war was Rs. 315/- per month, that in 1937 it had been let out to one Ram Chandra Chopra on this rent and that Khanna too had paid the same rent in the beginning. Another important witness of the Plaintiff was Amar Chand P.W. 2 a karinda of Rai Bahadur Ugra Sen a leading Cinema owner of the town. He deposed that his employer owned three Cinemas in Dehra Dun, Orient, Prabhat and Lakshmi Talkies, of which the rent was Rs. 525/-, Rs. 500/- and Rs. 550/- per month respectively, that the floor area of the Cinema hall of Orient was 3000 square feet, of Prabhat 2,800 square feet, and of the New Empire (the Cinema in suit) was 4,800 square feet; that the situation of the New Empire was as good as that of the Orient but much better than that of Lakshmi and Prabhat; and that in all the three Cinemas owned by R.B. Ugra Sen the furniture, fans, exhaust fans and the Cinema machines were provided by the tenants. Another witness was Satyanand Khanna P.W. 3, the brother of Nityanand Khanna, who was the tenant of this very Cinema and from whom the Respondent Juval took over under the agreement of 1954 (Ex.50). He deposed that the Defendant willingly agreed to take over the Cinema House on Rs. 877/ per month plus Rs. 550/- as the hire of the projector machine part of which was to be paid every month towards the decree obtained by the landlord. He stated that the New Empire "is the best of all Cinemas as regards building and space", and had the largest parking place and the biggest lobby which facilitated the purchase of tickets. He corroborated the Plaintiff's statement that the situation of the New Empire on Rajpur Road is very good and in fact much better than that of Lakshmi, Prabhat or Orient. In cross examination he admitted that in 1940 this very Cinema was let out on Rs. 340/-per month. He corroborated the Plaintiff's statement that the situation of the New Empire on Rajpur Road is very good and in fact much better than that of Lakshmi, Prabhat or Orient. In cross examination he admitted that in 1940 this very Cinema was let out on Rs. 340/-per month. He also explained that he made the agreement with Juyal (Ex 50) because "the Defendant (Juyal) had offered very good terms." Another witness was Kirpa Ram Jauli, P.W. 1, a building designer who deposed that he had inspected the Cinema House and made a plan of the building which he produced before the court. In cross-examination, he admitted that the building of Cinema was not situate on the main road but 100 or 110 feet behind it, and that some portion of it was not visible from the main road while the rest was visible. Another witness was Ram Lai Narang, P.W. 5, an engineer who deposed that he had renovated the building of another Cinema, Dig Vijai Talkies, and had seen the buildings of Dig Vijai, Orient, Lakshmi, Prabhat, Odien and the New Empire. He stated tnat the back wall of New Empire was lined with Celotax which had the advantage that sound did not reverberate, while no other Cinema had Cilotax on its back walls. He stated that the building of the New Empire was pucca and the cost of its construction today (at the time when he gave evidence) would be Rs. 250000/. In cross examination he admitted that the entire building needed repairs. 8. The Defendant Respondent Ganga Dhar Juyal deposed that the building of the Cinema needed repairs, its roof leaked in 3 or 4 places, and the floor was broken at several spots. He also stated that the terms of his tenancy did not include the right to let out the stalls and the Cycle stands as in the case of other Cinemas. In cross-examination he admitted that he had made the agreement with Nitya Nand Khanna for taking over the Cinema on Rs. 877/8/. p.m. of his own freewill. His other two Witnesses were Narain Singh D.W. 2 and Ram Bharosey D.W. 3. The former deposed that he had been running the Cycle stand of this Cinema since January 1935 and did not pay anything to the Cinema people for this privilege. 877/8/. p.m. of his own freewill. His other two Witnesses were Narain Singh D.W. 2 and Ram Bharosey D.W. 3. The former deposed that he had been running the Cycle stand of this Cinema since January 1935 and did not pay anything to the Cinema people for this privilege. The latter stated that he kept a tea stall in the Cinema and did not pay anything to the Cinema people for this privilege. Evidently these witnesses were produced in support of the Defendants case that, his tenancy did not include the right to sublet the stalls and the Cycle stand, 9. The learned Civil Judge framed six issues of which the most vital in this appeal is the third: "What is the fair rent of the premises in suit?" After discussing the procedure prescribed in Section 6(1)(a) of the Act for determining the fair rent of any accommodation constructed before 1st July 1946, he rejected the Plaintiffs evidence of the prevailing rents of the other Cinema Houses on various grounds. He was also of the opinion that the agreement between Nitya Nand Khanna and the Plaintiff fixing the rent of the Cinema at Rs. 877/8/ as rent could not be an index of fair rent as the circumstances under which that agreement was executed were rather abnormal because "the Plaintiff was at that time in a dominant position." He was further of the opinion that the prevailing rent of Dig Vijai Talkies did not afford a fair comparison, because that Cinema was "A class by itself" and "its various advantages were not available to the tenants of the other Cinema buildings.'' He did not discuss the evidence relating to the three Cinemas of Rai Bahadur Ugra Sen-Orient, Prabhat and Lakshmi-but made a general observation that one of the Plaintiffs own witnesses had admitted that "in no other case there is a building between the Cinema building and the road in front of it", and this fact does not diminish very much the value of the building in suit. He also observed that in every other Cinema building there was a period when the rents had gone down but not so "in the case of the Cinema in suit". He took into consideration the fact that the pre war rent of this building (including furniture) was Rs. He also observed that in every other Cinema building there was a period when the rents had gone down but not so "in the case of the Cinema in suit". He took into consideration the fact that the pre war rent of this building (including furniture) was Rs. 315/ p.m. He further observed that the Plaintiff had not supplied any fresh furniture and naturally the condition of the furniture must have been (sic) deterie. rated. He further observed "that all the major and minor repairs in other Cinemas are done by the landlord while in the Cinema in suit the landlord is responsible for only major repairs". Taking these circumstances into consideration he thought that the fair rent of the Cinema would be Rs. 375/-p. m. 10. As regards the prayer for arrears of rent or in the alternative for mesne profits, he held that the Defendant had already paid a sum of Rs. 14,625/- towards rent and was also entitled to adjust a portion of the amounts spent by him on repairs, which he as. sessed at Rs. 3,112.95 nP. After taking into consideration the amount paid and spent on repairs he found that nothing was due to the Plaintiff. Accordingly he awarded the Appellant a simple declaration that "the rent is payable at the rate of Rs. 375/- p.m. from 2nd February 1955 but dismissed the suit of the rent, and ordered the Plaintiff to pay the costs of the Defendant. Against this decision the Plaintiff has come to this Court in appeal. 11. The Appellant has also filed a revision against the order u/s 115 Code of Civil Procedure. Learned Counsel for the Appellant explained that the Appellant has filed an appeal and a revision because this Court has held in another case that a suit for fixation of rent and for recovery of arrears of rent is not a suit u/s 5(1) of the Act and therefore a decree in that suit is appealable, Section 6(2) being not applicable to such a suit. The Appellant for abundant caution had filed a revision as well as an appeal and paid a heavy court fee of Rs. 467 7.50 nP. on the appeal. Both the appeal and the revision were connected and heard by us together and are being disposed of by a single judgment. 12. Mr. The Appellant for abundant caution had filed a revision as well as an appeal and paid a heavy court fee of Rs. 467 7.50 nP. on the appeal. Both the appeal and the revision were connected and heard by us together and are being disposed of by a single judgment. 12. Mr. R.C. Ghatak for the Defendant-Respondent has raised a preliminary objection that an appeal does not lie. Learned Counsel contended that the decision of Brij Mohan Lal, J. in Civil Revision No. 329 of 1951 holding that a suit containing a combined relief for fixation of rent and for a decree for rent is not a suit strictly u/s 5(4) of the Act is erroneous and should be overruled by us. On the other hand, it is argued by Mr. Ambika Prasad for the Appellant that the view taken by the learned Judge is correct. We have to decide whether an appeal lies in this case. It was conceded by Mr. Ghatak that if an appeal does not lie, a revision would, though he contended that the present case does not fall within the scope of Section 115 Code of Civil Procedure. We have to decide whether an appeal or revision lies, because we cannot give the Appellant any relief without deciding it. If an appeal lies, we can pass no order in revision, and vice versa. 13. Section 6(2) enjoins that "no appeal shall lie against any order or decree passed in a suit filed u/s 5(4)". The question is: What is a suit filed u/s 5(4)? 14. Section 5(4) and Section 5(5) which confer a right to file a suit for fixation of rent, run thus: Section 5(4). If the landlord or the tenant claims that the annual reasonable rent of any accommodation to which the Act applies is inadequate or excessive, or that the reasonable annual rent declared by the District Magistrate u/s 3A is not correct or if the tenant claims that the agreed rent is higher than the annual reasonable rent, he may institute a suit for declaration or, as the case may be, for fixation of rent in the Court of the Munsiff hawing territorial jurisdiction, if the annual rent claimed or payable is Rs. 500 or less, and in the Court of Civil Judge having territorial jurisdiction if it exceeds Rs. 500 or less, and in the Court of Civil Judge having territorial jurisdiction if it exceeds Rs. 500, provided that the Court shall not vary the agreed rent unless it is satisfied that the transaction was unfair, and in the case of lease for a fixed term made before April 1, 1942, that the term has expired. (5) Notwithstanding anything contained in Sub-section (1) to (3), the rent fixed by the Court under Sub-section (4) shall, so long as this Act remains in force, be payable by the tenant and from such date as the Court may direct. Section 6 which prescribes the procedure in such suits, runs thus: Section 6-PROCEDURE IN SUIT: (1) In determining the amount of annual or monthly rent in any suit u/s 5 the Court shall take into account. (a) In the case of accommodation constructed before July 1, 1946, the pre war rent the reasonable annual or monthly rent, the prevailing rent on the date of the suit for similar accommodation in the locality, the cost of maintenance and repairs of such a commodation and any material circumstances proved by the Plaintiff or the Defendant. (b).... (2) No appeal shall lie from any decree or order of the Munsiff or the Civil Judge in a suit brougnt under Sub-section(4) of Section 5: Provided that except as regards the rate of rent but no further the decree or order so passed shall not operate as resjudicata between the parties or their representatives in interest in any suit or proceeding under any other law. 15. Reading the two sections together, Section 5(4) confers a right upon the landlord and the tenant to file a suit for a fixation of rent in the Civil Court and Section 6(2) enjoins that any decree or order of a court in a suit filed u/s 5(4) shall be non-appealable. The question before us is whether a suit which is not simply for fixation of rent but also for a decree for arrears of rent and other reliefs is a suit u/s 5(4). Brij Mohan Lal, J. in the Civil Revision referred to above took the view that such a suit is not strictly u/s 5(4) because that section does not contemplate a claim for arrears of rent. Brij Mohan Lal, J. in the Civil Revision referred to above took the view that such a suit is not strictly u/s 5(4) because that section does not contemplate a claim for arrears of rent. He pointed out that it is always open to a Plaintiff to combine in one suit several causes of action against the same Defendant, and if in the exercise of this power the Plaintiff adds a claim for arrears of rent in a suit u/s 5(4) that suit ceases to be one purely u/s 5(4) and the bar imposed by Section 6(2) will not operate. The learned Judge reasoned that "Section 6(2) bars an appeal against a decision in a suit brought under Sub-section (4) of Section 5" and therefore does not apply to a suit for fixation of rent plus a decree for recovery of arrears of rent. Mr. Ghatak contended that the view of the learned Judge is erroneous. According to learned Counsel, a suit filed u/s 5(4) means any suit in which a relief u/s 5(4) is claimed, and it is immaterial whether any additional or consequential relief is claimed in that suit. Mr. Ghatak centended that a suit for fixation of rent u/s 5(4) is none the less a suit filed u/s 5(4) because other reliefs are added to a prayer for fixation of rent. Learned Counsel contended that the entire decision is nonappealable including the findings on reliefs which are not claimed u/s 5(4). 16. The words "a suit filed u/s 5(4)" include a suit praying for a decree for arrears of rent and other reliefs in addition to a demand for fixation of rent u/s 5(4). Suit has ;been defined as a prosecution or pursuit of some claim, demand, or request in Courts of justice-Cohen v. Virginia (1) (6 Wheat US 264:5 L. Ed. 257). The American Courts have regarded the term suit as very comprehensive in its scope and applied it to any proceedings in a court of justice by which an individual pursues in that court any remedy which the law affords him. The modes of proceedings may by various but if a right is litigated between the parties in a court of justice the proceedings by which the decision of the Court is made is a suit. Kohl v. United States (2) (91 US 367:23 L. Ed. The modes of proceedings may by various but if a right is litigated between the parties in a court of justice the proceedings by which the decision of the Court is made is a suit. Kohl v. United States (2) (91 US 367:23 L. Ed. 449); Ex parte Millgan (3) (4 Wall (US) 18 L. Ed. 281); Holmes v. Jennison (4) (14 Pet (US; 540: 10 L. Ed. 579). 17. A suit arises under the law that creates the cause of action. American Wall Works Co. v. Leyne B. Co. (5) (241 US 267: 60 L. Ed. 987). In that case the Plaintiff company sued the Defendant company for libel or slander, alleging that it owned, manufactured, and sold a certain pump for which it had or applied for a patent under a federal law and its pump was known as the best in the market; but the Defendant company had falsely and maliciously libelled as slandered the Plaintiffs title by stating that the pump and its certain parts were infringements upon the Defendants pump and had brought suits against certain parties who were using the Plaintiffs' pump and were threatening suits against all others who were using it. The question was whether the suit was filed under the patent laws of the United States or the law of defamation. If under the former, the federal court had jurisdiction; if under the latter, the State Court. The Supreme Court held that the suit being one for recovery of damages for libel and slander arose under the laws of State and the federal courts had No. jurisdiction to entertain it. Mr. Justice Holmes, who delivered the opinion of the Court rejected the Defendants argument that as the suit raised the question of the Plaintiffs infringement of the patent laws of the United States, it arose under the federal laws, and observed that a suit arises under the law that creates the cause of the action and a suit for damages to business caused by a threat to sue under the present law is not itself a suit under the patent law even though the Plaintiff claimed a right under the patent law and the Defendant too claimed that it had a patent which had been infringed. The Supreme Court held that the fact that the justification may involve the validity and infringement of a patent is no more material to the question under what law the suit is brought than it would be in an action of contract. These American ' decisions were brought to the notice of counsel for both parties. 18. The present suit was filed under the law which created the cause of action. The term "cause of action" has been defined-the definition is based on judicial authority-in Mulla's CPC as a "bundle of essential facts which it is necessary for the Plaintiff to prove before he can succeed in the suit". It is further stated that the cause of action does not "depend upon the character of the relief prayed for." 12th Ed. p. 120. 19. A suit may include several reliefs or claims the cause of action for each being created by a different law. Such a suit cannot be said to have been filed under any one law. This suit is for fixation of rent and also for a decree for Rs. 27,3/5/ as arrears of rent or in the alternative for Rs. 26,741.57 nP. as partly compensation for use and occupation and partly rent. The cause of action in a suit for recovery of rent by the landlord is founded on a contract of tenancy. The Defendants' obligation to pay rent arises from the agreement of tenancy and not u/s 5(4) of the Control of Rent and Eviction Act. This is clear from Section 5(1) which says that the rent payable shall be such "as may be agreed upon between the parties", subject to the other provisions of the Act. These other provisions confer no right on the land-lord to demand rent; on the contrary they restrict his existing rights and prevent him from increasing rent beyond a certain limit. Even the right to file a suit u/s 5(4) for the fixation of rent, is essentially a restriction, or to be more accurate, a partial relaxation of the restriction imposed by the earlier sub clauses on his right to enhance the rent. But a restriction confers no right, and the right to recover rent is founded on the contract of tenancy itself. But a restriction confers no right, and the right to recover rent is founded on the contract of tenancy itself. If the Act had not been passed, or if it is repealed, the landlord would still have the right to recover rent from the tenants which would be unrestricted by any decision fixing a, fair rent. The position is some what analogous to the landlord's right to evict the tenant. Section 3(1) (a) of the Act merely lifts the bar against a suit for eviction but confers no right of ejectment nor creates a cause of action which arises from the notice terminating. 20. We would some up our conclusions thus: a suit is filed u/s 5(4) it the cause of action is created wholly by that subsection, but not if a part of it is created by another law. The cause of action in a suit for recovery of rent is created by the law of Contract and tenancy and not Section 5(4) of the UP Control of Rent and Eviction Act. Inclusion of a relief for fixation of rent would not make the suit one u/s 5(4) because a part of the cause of action is not created by that subsection. During the arguments a question was raised about the cause of action when a tenant files a suit u/s 5(4) for fixation of rent on the ground that the agreed rent or the annual reasonable rent is excessive. This question does not arise in this appeal and we are not called upon to decide which, law creates the cause of action in a tenant's suit. We have only to decide whether a landlords' suit for fixation and recovery of rent is a suit u/s 5(4) of the Control of Rent and Eviction. Act. 21. Mr. Ghatak's argument that a suit filed u/s 5(4) includes every suit in which one of the reliefs is for fixation of rent, if accepted, will lead to oppressive and absurd results which, could not have been intended by the legislature. Let us take an illustration. Act. 21. Mr. Ghatak's argument that a suit filed u/s 5(4) includes every suit in which one of the reliefs is for fixation of rent, if accepted, will lead to oppressive and absurd results which, could not have been intended by the legislature. Let us take an illustration. Suppose the District Magistrate allots the house to a particular person against the wishes of the landlord who files a suit for a declaration that the order of allotment is illegal the ejectment of the allottee and compensation for illegal use and occupation, or (if the house has not been occupied by the allottee) an injunction restraining him from taking possession of the house; but as an alternative case in the event of the Court holding that the allotment order is not illegal, for fixation of rent at a rate demanded by the landlord. According to Mr. Ghatak's argument the tenant shall, have no, right of appeal against a decree declaring the allotment order illegal and ordering his ejectment from the house or enjoining him from taking possession,, simply because the Plaintiff had asked for a relief for fixation of rent u/s 5(4) of the Act. Or, to take a simpler illustration, a tenant will have no right of appeal against a decree for rent for three years simply because the landlord bad added a relief for fixation of rent u/s 5(4) at a certain rate which was refused. In the very case before us, if the lower court had awarded a decree for compensation for use and occupation at the rate of Rs. 1000/- per month, the Respondent would have had no right of appeal because a relief for fixation, of rent had been added in the plaint.. We are not prepared to assume, in the absence of any express words to that effect, that the legislature intended to, take away the Defendants' existing right of appeal in such cases. There is a right of appeal against a decree for ejectment or injunction or recovery of rent (in a suit not cognizable by the Small Cause Court) and if the State legislature intended to take away a right conferred by the Central Legislature, it would have said so expressly. The right of appeal is a substantive,, not a procedural right and the Court will not assume that a state was. The right of appeal is a substantive,, not a procedural right and the Court will not assume that a state was. intended to take away existing rights, unless it contains express words abolishing them or such an intention is clearly implied. Colonial Sugar Refining Co. Ltd. v. Iring (6) (1905. AG 369). In that case a question was whether an act taking away a right of appeal had retrospective effect and the suggestion was rejected, but the observations of the Privy Council will apply with equal force against a suggestion that a statute creating a new cause of action without the right of appeal was intended to abolish existing rights of appeal in other classes of suits. A right of appeal being the creature of statute can neither be enlarged, nor curtailed la a manner not warranted by the letter of the statute. Viraraghava v. Narsimharao (7) (AIR 1959 Mad. 124) (128). 22. Mr. Ghatak argued that a restricted interpretation will lead to. evasion of the statute. Counsel pointed out that any landlord can make the decision u/s 5 (4) appealable by adding a prayer for recovery of one months' rent. There are two short answers to. this argument. First, there is no question of any evasion of the statute if the law confers upon the Plaintiff the right to ask for an additional relief under the law, and even compels him to do so in some cases. In such cases the only question is whether the Plaintiffs" suit is outside or inside the statute denying the right of appeal in a specified cause of action and this is a pure question of interpretation. The Plaintiff is under no moral obligation to bring his suit within the mis-, chief of the Statute by giving up all the reliefs to. which he is entitled. On the contrary "every man is entitled if he can, to order his affairs" so that his case not fall within the mischief of any particular statute. I.R.C. v. Westimiaater (Duke). (8) (1936 AC. 19). That case involved the scope of a taxing statute, but the principle is. of, universal application. In our view there is no evasion if a Plaintiff asks, for other reliefs which the law permits, or compels him to, ask in addition to a prayer for fixation of rent u/s 5(4) of the Control; of Rent and Eviction. Act. 19). That case involved the scope of a taxing statute, but the principle is. of, universal application. In our view there is no evasion if a Plaintiff asks, for other reliefs which the law permits, or compels him to, ask in addition to a prayer for fixation of rent u/s 5(4) of the Control; of Rent and Eviction. Act. The well known dictum of Lord Cranworth LC is a useful reminder: in the present case: "I never understand what is meant by an evasion of an Act of Parliament: either you ate within the Act or you are not. If you are right; if you are within it, the course is clear." Secondly, Mr. Ghatak's argument about evasion is cancelled out if we consider a reverse case. His extended interpretation will enable any landlord to destroy the tenant's right of appeal against a decree for rent by adding a relief for fixation of rent. In such a cases, even if Court rejects prayer for fixing the rent, at the rate demanded by the landlord as frivolous, the decree for recovery of rent will be nonappealable. Therefore the only sound approach in this case is to interpret the meaning of Section 6(2) according to its plain language. As held above "a suit u/s 5(4) of the Act" means a suit in which the cause of action arises wholly under the Act but not one in which a part of the cause of action is created by another law. Such, a suit is not covered by Section 6(2). 23. Mr. Ghatak argued that unless his interpretation is accepted Section 6(2) will be rendered futile, for any landlord can acquire a right of appeal against that decision by adding a relief for recovery of rent. There are two short answers to this argument. First, it is not correct that the Sub-section will be rendered futile. It will apply to all cases where the only relief is for fixation of rent. It will apply where the tenant asks the Court to fix the rent on the ground that the agreed rent or the annual reasonable rent is excessive, or where the landlord at the very commencement of the tenancy, asks the Court to fix. the rent. It will apply to all cases where the only relief is for fixation of rent. It will apply where the tenant asks the Court to fix the rent on the ground that the agreed rent or the annual reasonable rent is excessive, or where the landlord at the very commencement of the tenancy, asks the Court to fix. the rent. Secondly, in interpreting a statute the Court must not only decide whether a particular interpretation was intended by the legislature but also whether the language used in, the Statute has succeeded in conveying that intention. We think that the legislature did not have the intention imputed to it by Mr. Ghatak; and even if it did, the language of Section 5(4) does not succeed in conveying it. If the legislature had meant to bar the right of appeal in every suit in which a decree for rent is demanded in addition to fixation of rent, it would have used different language. In that case, the words of Section 6(2) would have been "no appeal shall lie from any decree or order of the Munsif or the Civil Judge in a suit in which a relief u/s 5(4) is claimed,'' or their equivalent. The language of Section 6(2) of the Control of Rent & Eviction Act may be contrasted with that of Section 242 of the U.P. Tenancy Act which completely bars the jurisdiction of the Civil Court by providing that " no Court other than a Revenue Court shall take cognizance of any suit or application based on a cause of action in respect of which any relief can be obtained by means of any such suit or application." We are, therefore, entitled to assume that the legislature, in not using the wide language which it employed in Section 242 of the Tenancy Act, intended that Section 6(2) applies only to those cases where the cause of action is created exclusively by Section 5(4) and by no other law. The preliminary objection, therefore, fails and we shall consider the appeal on merits. 24. The cinema house was constructed before July 1, 1946. The preliminary objection, therefore, fails and we shall consider the appeal on merits. 24. The cinema house was constructed before July 1, 1946. u/s 6(1) (a) the Court in fixing the rent of such accommodation must take into consideration (1) the prewar rent, (2) the reasonable annual or monthly rent, (3) the prevailing rent on the date of the suit for similar accommodation in the locality, (4) the cost of maintenance and repairs of such accommodation and (5) any material circumstances proved by the Plaintiff or the Defendant. In the present case the learned Judge considered the prewar rent of the cinema house but rejected the evidence produced by the landlord of the prevailing rent of certain other cinemas, on the ground that the tenants of these cinemas had the right to sublet the shops and the cycle stand whereas the Respondent did not have this valuable right under the tenancy. We think that the learned Judge was in error in rejecting this evidence on the grounds adopted by him. No subtenancy is created when the Cinema owner permits another person to run a tea stall or the cycle stand for the benefit of the visitors to the cinema. The transaction in each case is a licence. The person in charge of the tea stall or the cycle stand is not in exclusive possession of any part of the premises but only permitted for a limited period of the day the use of his premises for a certain purpose. A lessee of a cinema has the right to provide a tea stall or cycle stand for the convenience of the patrons either himself or by a licensee. The learned Judge should have taken into account the rents paid by the tenants of all the three cinemas Orient, Prabhat and Lakshmi talkies which are Rs. 500/-, Rs. 500/- and Rs. 550/-respectively. It is important to note that the area of the hall of the Orient is 3000 sq. feet, of Prabhat 2800 sq. feet while that of the New Empire (the cinema in suit) 4800 sq. feet. Therefore its accommodation is nearly double that of Prabhat (Rs. 500/-) and sixty percent larger than that of Orient (Rs. 500/). Its rent should be proportionately higher. 25. Another important fact completely ignored by the learned Judge is that the Respondent himself agreed to take this very cinema on a rent of Rs. feet. Therefore its accommodation is nearly double that of Prabhat (Rs. 500/-) and sixty percent larger than that of Orient (Rs. 500/). Its rent should be proportionately higher. 25. Another important fact completely ignored by the learned Judge is that the Respondent himself agreed to take this very cinema on a rent of Rs. 877/8/- per month under the agreement with Nityanand Khanna [ Ex. 50 paper No. 3 of list 116(c)]. The learned Judge rejected the deed of agreement as inadmissible on the ground that it was unregistered. He, however, overlooked that there was overwhelming oral evidence of this agreement and the Respondent himself admitted that he had entered into it of his own free will. Moreover the deed of agreement being tendered in evidence for a collateral purpose was admissible. Thus it was established by the Appellant that shortly before obtaining the allotment order the Respondent had taken this very cinema on Rs. 877/8/- per month, and in fact himself offered Nitynand Khanna these terms. Mr. Ghatak attempted to argue that the Respondent had no option but to make this agreement which was obtained from him under pressure. But there is not a particle of evidence to suggest. On the contrary in his letters to the Appellant asking for time to pay the arrears of rent, the Respondent Juyal praised him for having been "generous" and asked for further generosity in the shape of granting the Respondent time for paying the arrears. There is not a hint in this letter that he had made the agreement under pressure or that the agreed rent was excessive. Mr. Ghatak contended that the previous agreement between the Respondent Nitynand Khanna is not a material fact as contemplated in Section 6(a). We do not agree. The phrase "material circumstances" has not been defined in this Section or the Act, and we do not think it is possible or even desirable to give any rigid or narrow definition of it. In our opinion the fact that the tenant before obtaining an allotment order was occupying the same accommodation at Rs. 877/- per month under an agreement made of his own free will is a material circumstance. Even under the Control of Rent and Eviction Act the rent is to be fixed by agreement between the parties subject to the right to have it enhanced or reduced under certain circumstances. 877/- per month under an agreement made of his own free will is a material circumstance. Even under the Control of Rent and Eviction Act the rent is to be fixed by agreement between the parties subject to the right to have it enhanced or reduced under certain circumstances. It is true that the agreement under which the Respondent was paying a rent of Rs. 877/8/- was not with the Appellant, but he obtained the consent of the Appellant without which he could not have been admitted to the tenancy. If the agreement had not been broken by him he would have had to pay rent at the rate of Rs. 877/8/- per month, and there is some force in the suggestion of learned Counsel for the Appellant that the Respondent deliberately defaulted in payment of rent to bring about a vacancy in the accommodation so that he could obtain an allotment order on reduced rent. The reasons given in his letter to the Appellant for stopping payment of rent do not make out a convincing excuse for breaking an agreement which he made of his own free will. The U.P. Control of Rent and Eviction Act, in spite of restrictions on the powers of the landlord, preserves the principle of sanctity of agreement. Section 5(4) itself requires that before the agreed rent can be varied it must be shown to be unfair. The agreement having been made by the Respondent of his own free will indicates his assessment of the rent of this Cinema hall and was therefore a material circumstance which should not have been ignored by the learned Judge. 26. Another material fact not considered by the learned Judge is that the cinema house in suit is let furnished whereas every other cinema in the locality (except Digvijaya Talkies) is let unfurnished. This is a valuable right as the cost for furnishing a Cinema hall can be very high. The learned Judge observed "It is also proved that the Plaintiff has not supplied any fresh furnitures and naturally the condition of the furnitures must have been deteriorated." The learned Judge ignored the difference in value between furnished and unfurnished accommodation on a ground which was not relevant, namely that the landlord did not replace the furniture, though was under no obligation to do so. We think that the fact that the Respondent obtained a furnished Cinema house whereas all the other Cinemas in the locality (except Digvijaya ) are let unfurnished is a material circumstance. 27. Another fact regarded by the learned Judge as meterial is that the cinema house in suit is not on the main road but about a 100 or 150 feet away from it. He was of the opinion that this fact considerably reduces the value of the cinema. But there was no evidence to justify this opinion. It was proved that the enterance gate of this cinema is on the main road and a part of the building is also visible from the road. We do not think that the fact that the cinema building itself is a little away from the road reduces its value as a cinema house, if it has a gateway on the road and partly visible from it. 28. For these reasons we are of the opinion that the assessment of the rent of this furnished cinema house at Rs. 375/ per month when other unfurnished nouses with nearly half its accommodation are fetching a rent of Rs. 500/ or Rs. 550/- per month is too low. Hit is permitted to stand the result will be that a Cinema house with the largest hall and the best situation in town will have the lowest rent. 29. We have now to consider what the fair rent should be. It has been proved in evidence that this cinema has the largest hall of all the cinemas in Dehra Dun which normally means that its seating accommodation is the largest. Amar Chand Jain, the Karinda of Rai Bahadur Ugra Sen, de posed that the situation of this Cinema is better than that of Lakshmi and Prabhat. Satya Nand Khanna P.W. 3, who managed this cinema in partnership with his brother Nityanand Khanna deposed that this cinema has the largest parking space. Its lobby is the bigest and thus provides the best facilities for purchasing tickets by providing shelter against sun and rain. The Respondent, very shortly before obtaining the allotment order of 1954, was running this cinema on a rent of Rs. 877/ 8/- per month. Taking all the circumstances into account we are of the opinion that the fair rent of the Cinema house should be Rs. The Respondent, very shortly before obtaining the allotment order of 1954, was running this cinema on a rent of Rs. 877/ 8/- per month. Taking all the circumstances into account we are of the opinion that the fair rent of the Cinema house should be Rs. 750/- per month payble from 2.2.1955 the date of the commencement of the tenancy. The Appellant is also entitled to a decree for rent at this rate, after deducting the amount already paid by the Respondent and the adjustments in respect of repairs and other items allowed by the learned Judge which were not challenged before us. 30. This appeal is allowed and the decree of the learned Judge modified. We declare the rent of the cinema house at Rs. 750/- per month payble with effect from 2.2.1955. We also award the Appellant a decree for arrears of rent which according to our calculation amounts to Rs. 13,762.05 n.p. We also award him interest pending and futute at the rate of 4 1/2 percent per annum. The Appellant shall have his half costs in this Court as well as in court below. 31. The learned Counsel for the Respondent prays that the decree should be made payable in instalments as the arrears will amount to a substantial sum. We are inclined to agree to this request and direct that the decree for arrears of rent shall be payable at the rate of Rs. 750/- p. m. with immediate effect, but in case of default for more than three months this privilege will be forfeited and the balance of arrears will be realisable forthwith. The result is that the Respondent shall pay every month to the Appellant a sum of Rs. 750/- as rent and another sum of Rs. 750/- as arrears making a total of Rs. 1500/-till such time as the arrears are cleared. 32. As we have held that the decree of the learned Judge is appealable, we must hold that no revision u/s 115 CPC lies. We accordingly dismiss the Civil Revision No. 825 of 1959. We would like to observe however that if the decree had not been appealable, the Appellant had established a case for our interference in revision as the learned Judge has not followed the procedure prescribed u/s 6(2) of the Act. There shall be no order for costs in the revision.