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Madhya Pradesh High Court · body

2011 DIGILAW 134 (MP)

Triveni Bai v. Vimla Devi

2011-02-01

A.M.NAIK

body2011
ORDER 1. This civil revision has been preferred by the revisionist for setting aside the impugned order dated 16.1.2008 passed by the Sub-Divisional Officer, Vidisha in Case No. 2/A-90/07-08. 2. Briefly stated relevant facts are that Dr. Chiranjilal, predecessor of respondents No.1 to 6 submitted an application under section 10 (4) of the M. P. Accommodation Control Act, 1961 for fixation of standard rent against the revisionist in respect of the premises occupied by the latter. The Rent Controlling Authority-cum-Sub Divisional Officer, Vidisha vide his order dated 26.8.1989 made the fixation @ Rs. 75/- p.m. per room and Rs. 50/p.m. for Varanda. Revisionist, who was in occupation of three rooms and one Varanda was held liable to pay the rent in all to the tune of Rs. 275/- p.m. with effect from 16.8.1984. The Rent Controlling Authority issued a letter to the Court of Civil Judge Class-I Vidisha for execution of the said order. Execution proceeding No. 5 x 86 x 87 x 90 was initiated by the said Court. Said proceedings were stayed in Civil Revision No. 465/2001 by this Court. It was finally held by this Court vide order dated 3.1.2003 that the Civil Court has no jurisdiction to execute the order passed by the RCA. The Court of Civil Judge Class-I, Vidisha while dismissing the execution case in pursuance of this Court's order dated 3.1.2003 granted a liberty vide his order dated 3.2.2003 to the respondent to move an appropriate application before the RCA for recovery of the arrears of rent as per earlier order dated 26.8.1989 passed by the RCA. Pursuant thereto, the respondent submitted an application before the Sub Divisional Officer for execution of the order dated 26.8.1989. Learned SDO passed an order on 16.1.2008 directing thereby the revisionist to deposit the rent or submit receipts in case if he has already deposited the rent. The revisionist has challenged the order dated 16.1.2008 as without jurisdiction and against the law. 3. It has been contended on behalf of the revisionist that the order of fixation of rent passed under section 10 of the M.P. Accommodation Control Act is not executable. The revisionist has challenged the order dated 16.1.2008 as without jurisdiction and against the law. 3. It has been contended on behalf of the revisionist that the order of fixation of rent passed under section 10 of the M.P. Accommodation Control Act is not executable. The afores2id has been countered on behalf of the respondents on the ground that by virtue of the powers available to the Rent Controlling Authority under section 35 of the said Act, the Rent Controlling Authority-cum-Sub-Divisional Officer, Vidisha has rightly passed the impugned order and no interference is warranted in the present revision. 4. Considered the arguments and perused the record. 5. It may be seen that Rent Controlling Authority vide his earlier order' dated 26.8.1989 made fixation of rent at the rate of Rs. 275/- p.m. in respect of the premises in question. The revisionist was found liable to pay rent, in all, to the tune of Rs. 275/- p.m. with effect from 16.8.1984. A letter was issued by the Rent Controlling Authority-cum-Sub Divisional Officer, Vidisha to the Civil Judge, Class- II, Vidisha for execution of the said order. Execution proceedings were initiated by the Civil Court vide Case No. 5 x 86 x 87 x 90. These proceedings were challenged in Civil Revision No. 465/2001 before this Court. This Court allowed revision application vide order dated 3.1.2003, holding that the order fixing the standard rent cannot be executed as a decree. The Civil Court was found to have acted without jurisdiction. I may prefer to quote paragraph 4 of the said order : "4. A bare reading of the said section will make it clear that the interpretation made by the learned Judge of the said section is on the face of it erroneous, firstly because section 35 applies to the orders passed under Chapter III-A of the Act, which deals with the application for ejectment. Moreover, the said section provides that the orders passed by the Rent Controlling Authority are executable as a decree of the civil Court. No procedure is laid down under the Act, which empowers the Civil Court to execute the orders passed by the Rent Controlling Authority. Moreover, the said section provides that the orders passed by the Rent Controlling Authority are executable as a decree of the civil Court. No procedure is laid down under the Act, which empowers the Civil Court to execute the orders passed by the Rent Controlling Authority. The only remedy available to the landlord in such cases for recovery of the rent fixed by the Rent Controlling Authority is to file a civil suit for arrears of rent on the basis or rent fixed by the Rent Controlling authority. The order fixing the standard rent cannot be executed as a decree." The aforesaid order was passed in favour of the revisionist against the respondents, which was not further challenged before the Apex Court, Thus, it was allowed to attained finality and would obviously operate as resjudicata. 6.The Court in the case of State of Madhya Pradesh v. Mulamchand 1973 JLJ 489 = 1973 MPLJ 632 has held in paragrpah 26 : "26. The above discussion leads to the following conclusions :(1) The bar of resjudicata operates also as between two stages in the same litigation. (2) A decision in a writ proceedings operates as res judicata in a subsequent suit based on the same cause of action between the same parties. (3) The principle of resjudicata is based on the need of giving finality to a judicial decision. Once a res judicata, it shall not adjudged again. The underlying principle is that the parties should not be vexed twice over. (4) Even where section 11, Civil Procedure Code, does not apply, the principle of res judicata may apply (or the purpose of achieving finality in litigation. (5) A question of law is as much in issue as a question of fact. The expression "matter in issue" is not confide to issues of fact; it includes issues of law as well. (6) But, for the purposes of the rule of res judicata, the issue of law must be an abstract question of law, it must be one relating to its applicability or non-applicability to the facts and circumstances of the particular case. (7) Even an erroneous decision on an issue of law operates as res judicata. Exceptions to this rule are (i) where by a subsequent legislation, the law, as applied in the earlier decision, is altered. (7) Even an erroneous decision on an issue of law operates as res judicata. Exceptions to this rule are (i) where by a subsequent legislation, the law, as applied in the earlier decision, is altered. However, a different interpretation of the law as given in a subsequent binding proceeding is not the same thing as altering the law. (ii) Where the question of law is one purely relating to the jurisdiction of the Court. (iii) Where the decision of the Court sanctions something which is illegal. 'illegality' in this context refers to an act prohibited by law. (8) As between a decision which operates as res judicata and another which is binding precedent, though not res judicata, the former prevails. (9) A decision of the Supreme Court is binding on all Courts by virtue of Article 141 of the Constitution, but it is not the same thing as to say that a decision of the Supreme Court alters the law. Article 141 does not confer on the Supreme Court any legislative function. The Supreme Court declares the law; it does not alter the existing law, or make a new law." Since it was already held in Civil Revision No. 465/2001 that the only remedy available to the landlord for recovery of the rent fixed by the Rent Controlling Authority was to file a civil suit for arrears of rent on the basis of rent fixed by the Rent Controlling Authority, it is not now open for the respondents to execute the order of fixation of rent. Such a recourse would be barred by the principle of res judicata, in view of Mulamchand's decision (supra) of this Court. 7. Even on merit, this Court is of the opinion that Section 35 of the M.P. Accommodation Control Act, 1961 does not empower civil Court to execute the order of Rent Controlling Authority, fixing thereby standard rent. Section 35 may be reproduced below for convenience :- "35. 7. Even on merit, this Court is of the opinion that Section 35 of the M.P. Accommodation Control Act, 1961 does not empower civil Court to execute the order of Rent Controlling Authority, fixing thereby standard rent. Section 35 may be reproduced below for convenience :- "35. Rent Controlling Authority to exercise powers of Civil Court for execution of other order :- Save as otherwise provided in section 34, an order made by the Rent Controlling Authority or an order passed in appeal under this Chapter or in a revision under Chapter ill-A shall be executable by the Rent Controlling Authority as a decree of a Civil Court and for this purpose, the Rent Controlling Authority shall have all the powers of a Civil Court." Perusal of the aforesaid goes to show that an order made by the Rent Controlling Authority or an order passed in appeal under Chapter V or in a revision under Chapter ill-A shall be executed by the Rent Controlling Authority, as a decree of a Civil Court. The respondents have put the order dated 26.8.1989 passed by the Rent Controlling Authority in exercise of powers under section 10 (4) of the said Act into execution. Section 10 of the Act empowers the Rent Controlling Authority to fix standard rent in respect of any accommodation. Sub-section (4) of it, empowers him to fix such rent, as would be reasonable, having regard to the situation, locality and condition of the accommodation and the amenities provided therein. It merely empowers him to make fixation of rent and not to command the tenant to make payment at such rate of rent, which is fixed by him. This apart, it may be seen that the Rent Controlling Authority, vide his order dated 26.8.1989 fixed the rent at the rate of Rs. 75/- p.m. per room and Rs. 50/- p.m. in respect of the Varanda. He further held that the rent would be payable with effect from 16.8.1984. There was no order to the revisionist to make the payment to respondents at the rate on which the rent was fixed by the Rent Controlling Authority. The said order did not contain any command to the revisionist to make the payment to the present respondents. Excitability of an order is adjudged from the language of the order itself. There was no order to the revisionist to make the payment to respondents at the rate on which the rent was fixed by the Rent Controlling Authority. The said order did not contain any command to the revisionist to make the payment to the present respondents. Excitability of an order is adjudged from the language of the order itself. Order of the Rent Controlling Authority dated 26.8.1989 was merely about fixation of rent and was not executable, in view of the language employed in it. 8. In view of the aforesaid discussion, the impugned order is not found sustainable in law. The same is hereby set aside. The revision petition accordingly stands allowed with no order as to costs.