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2001 DIGILAW 1405 (RAJ)

Hari Ram S/o Keshav Dass Ji v. C. P. Chawla

2001-09-04

PRAKASH TATIA

body2001
JUDGMENT 1. - Heard learned counsel for the parties. Perused the impugned order dated 18.10.2000. 2. Learned counsel for the appellant submitted that the trial Court has committed serious illegality in determining rent from 1.7.1998 instead of determining rent from three years before filing of the suit. According to learned counsel for the appellant the suit of the plaintiff is not barred by Order 2, Rule 2 CPC because the earlier suit No. 135/95 was for a rent of different period and the present suit is for rent of different period. 3. I perused the order. The trial Court has not refused to determine the rent on the ground that suit of the plaintiff is barred by under Order 2, Rule 2 CPC. It appears from the order that trial Court was of the view that rent in this case is to be determined from 2.7.1998 when the other suit No. 135/95 filed by the plaintiff was finally decided and the trial Court also mentioned the fact that it will be convenient and with the consent of both the parties rent is determined from 1.7.1998. Learned counsel for the appellant vehemently submitted that this fact is wrongly recorded and the appellant gave only consent with respect to the calculation of the rent and not for determination of the rent from 1.7.1998 for which learned counsel for the appellant submitted that in preceding para of the order it is clearly mentioned that after hearing the arguments the trial Court held that in this case it will be equitable to determine the rent from 2.7.1998. This shows that there was agreement for determination of rent from 1.7.1998. 4. I am unable to accept this submission of learned counsel for the appellant in view of the fact that the trial Court observed in the order that in the opinion of the Court it will be just and proper to determine rent from 2.7.1998 but from the subsequent part it is clear that the consent was given for determination of the rent from even 1.7.1998 and the Court has not determined the rent from 2.7.1998 as observed in preceding para of the order. Therefore, when fact is recorded in the order its correctness is to be presumed and is conclusive and cannot be challenged in appeal unless it was challenged before the same learned Judge. Therefore, when fact is recorded in the order its correctness is to be presumed and is conclusive and cannot be challenged in appeal unless it was challenged before the same learned Judge. Even appellant has not mentioned that he has not given any consent or the consent has wrongly been recorded in the order. 5. Therefore, there is no force in this appeal and the same is hereby dismissed.Appeal dismissed. *******