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2008 DIGILAW 1938 (RAJ)

Praveen Kumar Tater v. Anil Kumar .

2008-08-14

VINEET KOTHARI

body2008
JUDGMENT : 1. - This review petition is filed against the order and judgment dated 21st January, 2008 dismissing the second appeal No.354/2007. The said second appeal arose out of a suit relating to fixation of standard rent under the old Rent Control Act, 1950. The trial court had fixed the standard rent under the old law at Rs.2,000/- per month as the rent agreed by the parties at Rs.200/- per month in the original rent agreement. 2. The judgment under review referring to the judgment of Division Bench in Kamal Kishore & 16 Others v. State of Rajasthan, 2008(1) WLC (Raj.) 29 relied upon by the learned counsel for the petitioner held that in the opinion of this Court no substantial question of law arose in the matter and the appeal had no merit. 3. This review petition has been filed by the appellant tenant on the ground that in view of the binding precedent of the Division Bench in the case of Kamal Kishore (supra) which held that the old law stood repealed by the new Rent Control Act, 2001 and, therefore, the standard rent could not be fixed under the provisions of Old Rent Control Act, 1950, therefore, the judgment under review deserves to be recalled and reviewed. 4. The learned counsel for the review petitioner has relied upon the judgments of the Hon'ble Supreme Court in Commissioner of Sales Tax, J & K . v. Pine Chemicals Ltd. . - (1995) 1 SCC 58 , Uma Addhya . v. Biren Mondal . - AIR 2006 Calcutta 200 and Board of Control for Cricket, India & Anr. v. Netaji Cricket Club and Ors - AIR 2005 SCC 592 . Relying upon these judgments, he has submitted that since the standard rent could not be fixed under the provisions of old Rent Control Act, 1950, therefore, the second appeal filed by the appellant-tenant deserved to be allowed and the judgment under review deserves to be recalled and reviewed. 5. On the side opposite, Mr. N.R. Choudhary relying on the judgment of Hon'ble Supreme Court in Haridas v. Smt. Usha Rani Banik . - 2006 (3) RLW 1877 wherein the Hon'ble Supreme Court held that scope of review of judgment and order passed in Second appeal is limited and the same cannot be confused with the appellate power. 5. On the side opposite, Mr. N.R. Choudhary relying on the judgment of Hon'ble Supreme Court in Haridas v. Smt. Usha Rani Banik . - 2006 (3) RLW 1877 wherein the Hon'ble Supreme Court held that scope of review of judgment and order passed in Second appeal is limited and the same cannot be confused with the appellate power. In exercise of review jurisdiction, it is not permissible by an erroneous decision to rehear and correct. 6. Having heard learned counsels, this Court is of the opinion that the position about the review jurisdiction under Order 47 Rule 1 Civil Procedure Code. is well settled and it does not require any case laws to be cited. The said scope is limited and limited to the extent of correcting apparent errors, whether the error of law would fall in the scope of term "apparent error on the face of judgment" is itself a debatable question. As far as reliance placed on the Division Bench judgment of Kamal Kishore is concerned, suffice it to say that the said view of the Division Bench has been referred to the Larger Bench recently by a judgment of learned Single Judge in case of Bhag Chand v. Addl. Distt. Judge No.5, Kota . - 2008(2) WLC 776 decided on 25.4.2008. 7. It would be relevant to quote para 8 and para 18 of the said judgment:- "8. It also appears that three judgments of three separate single benches of this Court, wherein it was held that all the applications and suits etc. filed under the Old Act pending on the date the New Act came into force, will be governed by the provisions of the Old Act, were also not brought to the notice of the Division Bench and, therefore, the same could not be considered while deciding Kamal Kishore's case (supra), which are as under:- (1) Balbeer Kumar Jain and Another v. Tripti Kumar Kothari - 2003(4) WLC (Raj.) 790 (By Hon'ble Mr. Justice A.C. Goyal); (2) Ugam Raj v. Civil Judge (SD), Sojat City - 2005(2) DNJ (Raj.)1136 (by Hon'ble Mr. Justice Govind Mathur); (3) Heera Lal v. M/s. Uttam Chand Deshraj - 2005 WLC (Raj.) UC 759 (By Hon'ble Mr. Justice J.R. Goyal)... 18. Justice A.C. Goyal); (2) Ugam Raj v. Civil Judge (SD), Sojat City - 2005(2) DNJ (Raj.)1136 (by Hon'ble Mr. Justice Govind Mathur); (3) Heera Lal v. M/s. Uttam Chand Deshraj - 2005 WLC (Raj.) UC 759 (By Hon'ble Mr. Justice J.R. Goyal)... 18. As already referred above, I find that in Kamal Kishore's case (supra)the learned Division Bench, in Para 31 and 44 of its judgment, has relied upon the judgment of the Hon'ble Supreme Court in Northern India Caterers (Pvt.) Ltd. v. State of Punjab, reported in AIR 1967 SC 1581 , whereas the said judgment had already been overruled by a Larger Bench of the Hon'ble Supreme Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others - AIR 1974 SC 2099 and this fact appears to have not been brought to the notice of the Division Bench; and further three judgments, as referred above, of three different Single Benches of this Court, wherein it was held that all applications and suits filed under the Old Act will be governed by the provisions of the Old Act by virtue of Section 32(3)(a), have also not been considered by the Division Bench while deciding Kamal Kishore's case (supra). Therefore, in my view, the correct interpretation of Section 32(3) (a) read with Section 29 of the New Act is that all applications, suit or other proceedings under the Act of 1950 pending on the date of commencement of the Act of 2001 before any Court shall be continued and disposed of in accordance with the provisions of the Act of 1950 as if the Act of 1950 had continued in force and the Act of 2001 had not been enacted. The present writ petition can be disposed of in the light of my above finding but, instead of deciding the writ petition finally, I think it fit and proper that, to avoid any conflict in the decisions and further that large number of cases, involving the same question of law, are pending in this Court and trial courts, the matter may be placed before Hon'ble the Chief Justice to constitute an appropriate Bench to decide the following questions of law:- (1) Whether Section 29 of the Rajasthan Rent Control Act, 2001 has its overriding effect on Section 32(3) of the Rajasthan Rent Control Act, 2001; (2) Whether the suits, applications and other proceedings relating to fixation of standard or provisional rent under Section 6 and 7 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, which have been saved by Section 32(3)(a)of the Rajasthan Rent Control Act, 2001, will be governed by the provisions of the Old Act of 1950, after coming into force of the New Act of 2001 or will be governed by the provisions of the New Act of 2001 as Section 6 and 7 of the Act of 1950, having been impliedly repealed, by virtue o Section 29 of the New Act of 2001 as held by the Division Bench in Kamal Kishore's case (Supra)?" 8. Thus, as far as the view of the Division Bench in Kamal Kishore (supra) is concerned, the matter has been referred to Hon'ble C.J. For constitution of the Larger Bench and awaits its decision. 9. As far as the question whether the provisions of old Act would govern the fixation of standard rent or not the four different Coordinate Benches of this Court have taken the view that such application application would continue to be governed by old Act of 1950. This Court had no reason to take a different view than this. 10. In view of this, the submission of learned counsel for the petitioner that the judgment under review deserves to be recalled in view of the precedent laid down by the Division Bench in Kamal Kishore's case does not impress this Court. It cannot be said to be an apparent error, if this Court found that no substantial question of law arose, if the standard rent has been fixed by the trial court following the provisions of old Act 1950. It cannot be said to be an apparent error, if this Court found that no substantial question of law arose, if the standard rent has been fixed by the trial court following the provisions of old Act 1950. Therefore, this Court does not find it to be a fit case to be reviewed in the narrow scope of review jurisdiction under Order 47 Rule 1 Civil Procedure Code. discussed time and again in the judgments of the Apex court including the judgments cited at the Bar. 11. Therefore, this review petition is dismissed.Petition Dismissed. *******