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  • K.C.Pandit
  • C.L.Puri
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  • Chowdhry, J.C
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Smart Summary

Structured Summary of the Opinion (Revision No. — V.R.B.)

Factual and Procedural Background

The matter arises from a defendant's (tenant's) application for revision of a judgment and decree dated 11-6-1951 of the learned District Judge of Mahasu and Sirmur. On 27-9-1950 the plaintiff-respondent (landlord) filed two separate suits in the Court of the Subordinate Judge of Solan for arrears of rent in respect of a shop: one suit (No. 87/1 of 1950) for Rs. 125 for the period 1-1-1948 to 31-12-1948, and the other suit (No. 88/1 of 1950) for Rs. 500 for the period 1-1-1949 to 31-12-1950 (rent agreed at Rs. 250 per annum under an agreement dated 22-3-1948).

While the suits were pending, the defendants applied to the Rent Controller for fixation of fair rent under Section 4 of the East Punjab Urban Rent Restriction Act (III of 1949) and the suits were stayed. The Controller fixed the fair rent at Rs. 130 per annum on 28-2-1951; the District Judge acting as appellate authority under Section 15 modified that fixation to Rs. 137/8/- per annum on 22-5-1951.

On 17-3-1951 (after the Controller's order but before the appellate authority's order) the Subordinate Judge disposed of both rent suits: he decreed suit No. 87/1 for Rs. 21/4/- on the basis of the Controller's fixation but dismissed suit No. 88/1 as barred under Order 2, Rule 2(2) of the Civil Procedure Code (CPC). The Subordinate Judge of Solan had pecuniary jurisdiction up to Rs. 500 only.

The plaintiff-respondent appealed: one appeal in the Court of the Senior Subordinate Judge against the judgment in suit No. 87/1 and the other in the District Judge's Court against the judgment in suit No. 88/1. The District Judge transferred the first appeal to his own Court and, by a single judgment dated 11-6-1951, disposed of both appeals, decreeing each suit in full. The District Judge held (a) that the plaintiff was entitled to recover rent at the agreed rate because the Controller's decision had no retrospective effect, and (b) that the second suit was not barred under O.2 R.2(2) CPC because the suits were filed simultaneously.

The defendant (tenant) filed the present revision against the District Judge's judgment. The plaintiff-respondent raised a preliminary objection that the revision was not competent. The High Court (V.R.B.) considers two legal questions which underlie the District Judge's decision and ultimately rejects the revision as incompetent.

Legal Issues Presented

  1. Whether the second suit (No. 88/1 of 1950 for Rs. 500) was barred by Order 2, Rule 2(2) of the Civil Procedure Code because the plaintiff had split his claim into two suits.
  2. Whether the Rent Controller's fixation of fair rent under Section 4 of the East Punjab Urban Rent Restriction Act could have retrospective effect, thereby precluding the landlord from claiming or recovering rent in excess of the fair rent fixed by the Controller (and rendering agreements for excess rent void) for periods antecedent to the Controller's order.

Arguments of the Parties

Defendant (Petitioner) — as reported in the opinion

  • The petitioner's counsel cited authorities (notably Sher Ali Mridha v. Torap Ali) on the meaning of "cause of action" in the context of Order 2, Rule 2 to support the contention that successive arrears of rent constitute successive claims arising under the same obligation and therefore cannot be split into separate suits.
  • The petitioner's position (reflected in the Court's analysis) was that the landlord's splitting of the rent claim into two suits was barred by O.2 R.2(2) CPC and that the Controller's fixation of fair rent prevented recovery of rent in excess of that fair rent (including for earlier periods) under Sections 6 and 8 of the Rent Restriction Act.

Plaintiff-Respondent — as reported in the opinion

  • The plaintiff-respondent raised a preliminary objection that the revision itself was not competent and therefore should be rejected.
  • Before the District Judge the plaintiff argued (and the District Judge held) that (a) the two suits were filed simultaneously and so did not infringe O.2 R.2(2), and (b) the Rent Controller's decision had no retrospective effect so that the landlord was entitled to recover rent at the agreed rate. The District Judge relied upon an unreported Punjab High Court decision (Shiv Shanker v. G.D. Khanna & Sons) for the latter proposition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
AIR (2) 1915 Mad 319 Penalty for non-compliance with the rule to include whole claim; connection between Explanation IV to S.11 and O.2 R.2 CPC. Referenced as authority for the penal aspect of failing to include the whole claim in one suit when practicable.
Sher Ali Mridha v. Torap Ali, AIR (29) 1942 Cal 407 Interpretation of the words "cause of action". Noted as cited by petitioner's counsel; Court observed that reliance on it was unnecessary given the Explanation to O.2 R.2.
Phani Bhusan v. Rajendra Nandan, AIR (34) 1947 Cal 11 Successive claims arising under same obligation amount to one cause of action (rent arrears example). Used to support the conclusion that splitting rent arrears into multiple suits is barred by O.2 R.2(2).
Jiban Krishna v. Santimoyee Devi, AIR (35) 1948 Cal 366 Same proposition: successive claims under same obligation form one cause of action. Quoted as additional support for the prohibition on splitting claims for arrears of rent.
Narbadeshwari Prasad v. Sahib Singh, AIR (38) 1951 All 561 Same proposition on successive claims and bar under O.2 R.2(2). Relied upon to confirm that omission to sue for a portion of a claim will bar a subsequent suit.
Ganesh Ramchandra v. Gopal Lakshman, AIR (30) 1943 Bom 12 Held that suits filed simultaneously might not attract the penalty of O.2 R.2(2) and could be consolidated; practical treatment as one suit. Considered by the lower appellate Court; High Court distinguished it because in that case the Court had jurisdiction to try the consolidated claim, whereas here consolidation would have produced a suit beyond the Subordinate Judge's pecuniary jurisdiction.
Qazi Syed Muhammad Afzar v. Man Kumar, 1 Pat 669 Courts have inherent jurisdiction to consolidate suits. Referenced as authority for consolidation power (as noted in the Bom. decision), but the High Court held consolidation was not applicable given pecuniary-jurisdiction limits here.
Rayalu Ayyar v. Ramudu Ayyar, AIR (13) 1926 Mad 934 Where numbering of suits is prima facie evidence of admission order, it does not conclusively determine which suit was "afterwards" instituted; plaintiff may elect which suit to treat as barred if simultaneity is proved. The Court discussed the Madras view and held that proof of simultaneous presentation should be required; in absence of such proof the presumption of numbering order applies.
Murti v. Bhola Ram, 16 All 165 (Full Bench, Allahabad) Where two suits are filed on the same day the presumption is they were presented and admitted in the order of their numbers. The High Court applied this presumption in the absence of proof to the facts here, holding the later-numbered suit to be "afterwards" and therefore barred by O.2 R.2(2).
Standard Electric & Motor Works v. Picture Palace, AIR (11) 1924 Rang 161 Followed the Allahabad view on presumption based on suit numbering (though in that case consolidation affected applicability of O.2 R.2). Mentioned as another decision following the Allahabad approach; Court noted consolidation was not available here.
Chandra Narain v. D.N. Dhawan, AIR (37) 1950 Ajmer 78 Interpretation of corresponding provisions in local Rent Restriction legislation regarding effect of fair rent fixation. Quoted as supporting authority that fixation of fair rent and provisions similar to S.6 and S.8 can affect recovery of past excess rent.
Dr. G.V. Subba Rao v. Deviji Govindji, AIR (37) 1950 Mad 555 Interpretation of corresponding provisions in Rent Restriction legislation. Relied upon as supporting decisions interpreting analogous statutory provisions to reach similar conclusions about the effect of fair rent fixation.
Dulhanmal Rizumal v. Abdul Kadar, AIR (37) 1950 Madh. B. 8 Interpretation of corresponding provisions in Rent Restriction legislation. One of the decisions cited to support the proposition that landlord may be obliged to disgorge rent received in excess of fair rent fixed by the Controller.
Shiv Shanker v. G.D. Khanna & Sons, Civil Revision No. 340 of 1948 (Punjab High Court, unreported) Purportedly held that the Rent Controller could not give retrospective effect to his order; in that case enhanced rent was held to apply prospectively only. The District Judge relied on this unreported ruling. The High Court (V.R.B.) reviewed it, agreed that the Controller does not itself "give" a retrospective date but disagreed with any broad proposition that a Controller's order can never have retrospective effect when Ss.6 and 8 are applied in subsequent suits.
Venkatagiri v. H.R.E. Board Madras, AIR (36) 1949 P.C. 156 Principles regarding revisional jurisdiction and when a higher court may interfere for errors of law. Relied upon (by the plaintiff) and reviewed; used to support the proposition that erroneous conclusions of law do not automatically furnish ground for revisional interference.
Beg Ram v. Charan Das, AIR (38) 1951 Him Pr 16 Review of Privy Council rulings on revisional jurisdiction and interference for errors of law. The Court referred to this decision (of the same Bench) to reinforce the view that wrong conclusions alone do not constitute material irregularity permitting revision.
Abdul Majid v. Daleep Singh, AIR (36) 1949 All 744 Arriving at a conclusion or decision is a mental operation; a mere wrong conclusion does not constitute acting with material irregularity in exercise of jurisdiction. Applied to hold that the District Judge's erroneous conclusions of law did not amount to material irregularity that would make the revision competent.

Court's Reasoning and Analysis

The High Court framed two primary legal questions: (1) whether the second suit was barred by O.2 R.2(2) CPC because the plaintiff had split his claim; and (2) whether the Rent Controller's fixation of fair rent under S.4 of the East Punjab Urban Rent Restriction Act could have retrospective effect so as to preclude the landlord from recovering rent in excess of the fair rent for earlier periods.

On Order 2, Rule 2(2) CPC and the second suit:

  1. The Court reproduced the text of O.2 R.2 and emphasized that the rule penalises splitting of claims where the cause of action is one and the same (or where successive claims arise under the same obligation as stated in the Explanation).
  2. The Court concluded that arrears of rent for successive periods up to the suit date amount to successive claims arising under the same obligation and thus constitute a single cause of action for the purposes of the Explanation to O.2 R.2.
  3. On that basis, omission to sue for a portion of the claim will bar a subsequent suit under sub-rule (2). The Court cited several Calcutta and All-India decisions to reinforce that principle.
  4. The lower appellate Court's reliance on the Bombay Full Bench decision (Ganesh Ramchandra) was examined. The High Court distinguished that decision because, unlike the present case, the Bombay suits could have been consolidated in a court of competent pecuniary jurisdiction; by contrast, consolidating the two suits here would have produced a suit beyond the Subordinate Judge's pecuniary jurisdiction.
  5. The Court analysed conflicting views on the effect of simultaneous filing. It noted the Madras approach (which treats simultaneity as creating an election for the plaintiff) but preferred the view (followed by the Allahabad Full Bench and the Rangoon High Court) that, absent proof that the plaints were presented simultaneously, the presumption must be that the suits were presented and admitted in the order in which their numbers appear in the Register of Civil Suits. The burden of proving true simultaneity lies on the plaintiff who asserts it.
  6. Applying that presumption to the present case (no evidence of simultaneity was produced), the later-numbered suit (No. 88/1 for Rs. 500) must be treated as having been instituted "afterwards" and is therefore barred by O.2 R.2(2).
  7. The Court also observed the policy rationale: allowing such splitting would permit deliberate evasion of procedural and jurisdictional limits (the Subordinate Judge's pecuniary limit being Rs. 500), and would frustrate the purpose of O.2 R.2 and related provisions.

On the Rent Controller's fixation and retrospective effect of orders under the East Punjab Urban Rent Restriction Act:

  1. The Court set out the statutory scheme: Section 4 provides for fixation of fair rent by the Controller; Section 5 restricts certain increases; Section 6 bars the landlord from claiming or receiving rent in excess of fair rent and declares agreements for excess rent to be null and void; Section 8 enables restitution by a landlord of sums paid which are irrecoverable by reason of the Act.
  2. The Court reasoned that once the Controller has fixed fair rent the landlord is debarred under S.6 from receiving any sum in excess of that fair rent, and may be required (subject to limitation) under S.8 to disgorge sums previously received in excess of fair rent.
  3. Because S.6 and S.8 can relate to periods antecedent to the Controller's determination, the fixation of fair rent by the Controller under S.4 is capable of having a retrospective effect in the sense that it gives rise to statutory liabilities and rights in respect of earlier periods once fixed.
  4. The Court disapproved the District Judge's reliance on an unreported Punjab High Court ruling (Shiv Shanker) to the extent that it purported to hold that a Rent Controller cannot (in any circumstances) give retrospective effect to an order. The High Court clarified that while the Controller is not the tribunal that "fixes a retrospective date" as a discretionary act, the legal consequences of a Controller's fixation (under S.6 and S.8) can be applied to earlier periods in subsequent proceedings between landlord and tenant.
  5. The High Court cited several State decisions construing analogous provisions to support the proposition that a landlord may be obliged to restore sums paid in excess of the fair rent once the fair rent is determined.

On revisional competence and final disposition:

Although the High Court found that the District Judge had erred on both legal questions set out above, it considered whether such erroneous conclusions justified interference by way of revision. The Court reviewed Privy Council authority (Venkatagiri) and related rulings (as discussed in Beg Ram v. Charan Das) and relied upon the principle stated in Abdul Majid v. Daleep Singh that arriving at a conclusion is a mental operation and a mere wrong conclusion does not amount to acting with material irregularity in the exercise of jurisdiction. Consequently, the Court held that the erroneous conclusions of law reached by the District Judge did not constitute material irregularity warranting the exercise of revisional jurisdiction.

On that basis the Court allowed the plaintiff-respondent's preliminary objection and held the revision to be incompetent; therefore it rejected the revision application despite disagreeing with the District Judge's legal conclusions.

Holding and Implications

Holding: The Court dismissed the defendant's revision application and held that the revision was incompetent. Revision dismissed.

Implications and immediate effects:

  • The District Judge's judgment dated 11-6-1951 (which had decreed both suits in toto) remains in place because the revision was dismissed.
  • Substantively, the High Court expressed clear views (noted as potentially obiter dicta in relation to these suits) that: (a) splitting rent-arrear claims into multiple suits is barred by O.2 R.2(2) CPC where successive claims arise under the same obligation and no proof of true simultaneity is produced; and (b) the fixation of fair rent by a Rent Controller under S.4 can have legal consequences for prior periods under S.6 and S.8, potentially precluding recovery of rent in excess of the fair rent and permitting restitution for past excesses.
  • The Court nonetheless concluded that the District Judge's erroneous rulings on those legal points did not amount to material irregularity that would permit the High Court to interfere in revision; accordingly no relief was granted to the defendant in revision.
  • No order as to costs of the revision was made by the High Court.

Note: The Court characterized its discussion of the two central legal questions as potentially obiter dicta insofar as the present revision is concerned, but explained that definitive statements on those points were desirable for guidance of the Courts in the State.

V.R.B
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    Lalla Ram v. Naresh Chand

    1. This is a defendant's application for revision of the judgment and decree dated 11-6-1951 of the learned District Judge of Mahasu and Sirmur. The plaintiff-respondent filed two suits on one and the same date, 27-9-1950, in the Court of the Subordinate Judge of Solan for recovery of sums of money due as arrears of rent in respect of a shop, one for Rs. 125/- for the period 1-1-1948 to 31-12-1948, and the other for Rs. 500/- for the period 1-1-1949 to 31-12-1950, at Rs. 250/- per annum, on foot of an agreement dated 22-3-1948. The former was registered as suit No. 87/1 and the latter as suit No. 88/1 of 1950 in the Register of Civil Suits of that Court. During the pendency of the two suits the defendants, the tenants of the shop, filed an application before the Controller for determination of fair rent of the shop under Section 4 of the East Punjab Urban Rent Restriction Act (III)(3) of 1949), and the suits were stayed. The Controller decided the tenants' aforesaid applications on 28-2-1951 and fixed Rs. 130/- per annum as the fair rent of the shop, and this amount was modified to Rs. 137/8/- per annum on 22-5-1951 by the District Judge acting as appellate authority under S. 15 of the said Act. On 17-3-1951, i.e after the disposal of the aforesaid application by the Rent Controller on 28-2-1951 but before the decision of the appellate authority dated 22-5-1951, the Subordinate Judge disposed of the two rent suits, decreeing the first one for Rs. 21/4/- on the basis of the fair rent fixed by the Controller but dismissing the second as barred under Order 2, Rule 2(2) of the CPC. It may be stated here that the Subordinate Judge of Solan had pecuniary jurisdiction to try suits upto Rs. 500/- only. The plaintiff filed two appeals, one in the Court of the Senior Subordinate Judge against the judgment and decree of the Subordinate Judge in suit No. 87/1, and the other in the Court of the District Judge against the judgment and decree a suit No. 88/1. The District Judge transferred the former appeal to his own Court and disposed of both the appeals by a single judgment dated 11-6-1951, against which the present revision has been filed. The learned District Judge decreed each of the two suits ‘in toto’ holding that the plaintiff was entitled to recover the rent at the agreed rate as the Controller's decision had no retrospective effect, and that the second suit was not barred under O. 2 Rule 2(2) of the CPC, since the two suits had been filed simultaneously.

    2. There was a preliminary objection taken by the learned counsel for the plaintiff-respondent that the revision was not competent. In order to understand the true import of this objection it is necessary to dispose of the afore said two questions of law which form the basis of the decision of the lower appellate Court. I have therefore to follow this course even though in the result my views on the aforesaid questions of law might amount merely to ‘obiter dicta’. I am inclined all the more to express my views on the said question of law, even though those views be ‘obiter dicta’ so far as the present suits are concerned, because as authoritative pronouncement on those questions, especially on the one under the East Punjab Urban Rent Restriction Act, for the guidance of the Courts in this State is urgently called for to obviate mistakes in future.

    3. I would take up first the question whether the second suit was barred under O. 2 R. 2(2) of the CPC, Order 2 contains rules relating to the frame of Suit. The first rule is that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. And, as held in ‘AIR (2) 1915 Mad 319 (sic.),’ the penalty for non-compliance with this rule is provided partly by Explanation IV to S. 11, and partly by O. 2 R. 2 of the CPC. In the present case we are concerned with the latter provision, which runs as follows:

    “R. 2.(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

    (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

    (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.

    Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

    4. This rule penalises two ways of transgression of the aforesaid first rule where cause of action is one and the same, one by splitting of claims and the other by splitting of reliefs. The present case is concerned with only the splitting of claim since, as already seen, the plaintiff filed two suits in respect of the arrears of rent that had fallen due to him upto the suit date. The gist of the relevant law, contained in sub-rules (1) and (2) of this rule, is that, except that a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court, every suit shall include the whole of the claim which he is entitled to make in respect of a cause of action, and that intentional omission to sue for a portion of such a claim debars him from afterwards doing so. The learned counsel for the petitioner cited ‘Sher Ali Mridha v. Torap Ali’ AIR (29) 1942 Cal 407, for determination of the meaning of the words “cause of action” in this rule. This was, however, wholly unnecessary inasmuch as this was a case of “successive claims arising under the same obligation” and therefore constituting but one cause of action under the Explanation to the said ride. That sums due as arrears of rent for successive periods upto the suit date amount to successive claims arising under the same obligation, and that therefore omission to sue in respect of a portion of the claim will bar a subsequent suit for its recovery, has been further clarified by the illustration appended to the rule. The point is so clear that it hardly needs any support from authorities, but reference may be made to ‘Phani Bhusan v. Rajendra Nandan’ AIR (34) 1947 Cal 11, ‘Jiban Krishna v. Santimoyee Devi’, AIR (35) 1948 Cal 366 and ‘Narbadeshwari Prasad v. Sahib Singh’, AIR (38) 1951 All 561. It follows therefore that the plaintiff-respondent was not entitled to split his claim, and that his second suit for recovery of Rs. 500/- was barred under O. 2 R. 2(2).

    5. The lower appellate Court has however held that the said rule had not been contravened because the two suits were filed simultaneously. It further observed that the proper procedure which the trial Court should have followed was to consolidate the two suits and, as the value of the consolidated suits would have exceeded his pecuniary jurisdiction, to have referred the cases to the appellate Court for their transference to a Court of competent jurisdiction. And in support of this view reliance was placed upon ‘Ganesh Ramchandra v. Gopal Lakshman’, AIR (30) 1943 Bom 12. Relying upon an earlier decision of the same Court, it was held in this case that if suits are filed simultaneously there is no contravention of the part of the aforesaid rule which prohibits a plaintiff from afterwards suing for a relief omitted in a former suit. It appears that two suits in respect of immovable properties arising out of the same cause of action, one numbered as suit No. 154 of 1934 and the other as suit No. 155 of 1934, were filed on one and the same day in the same Court. The reasoning upon which the aforesaid decision was made was expressed by Mackhn, J. in the following words:

    “Without going so far as to say that in the case of suits filed simultaneously as these have been the penalty provided by sub-rule (2) should never be applied and one or the other of the suits should never be dismissed merely on that ground, we nevertheless think that in this case the suit ought not to have been dismissed. It would have been possible to consolidate the two suits, as any Court has the power to do in its inherent jurisdiction: see ‘Qazi Syed Muhammud Afzar v. Man Kumar’, 1 Pat 669, and, in fact, they were tried together, and the material issues in the two suits' were the same. For practical purposes, they were treated as only one suit; and I say this in spite of the fact that one of them was triable as a second class suit, and the appeal went to the District Court instead of to the High Court.”

    6. It may be stated here in passing that, unlike the present case, the two suits referred to in the Bombay ruling were filed in the Court of the higher pecuniary jurisdiction which could have disposed of both the suits after consolidating them. The ratio upon which the decision in that case was based does not therefore apply, for the value of the consolidated suits would have exceeded the pecuniary jurisdiction of the Subordinate Judge of Solan. That was why the Subordinate Judge tried them separately. According to the Bombay ruling itself, therefore, the present is not one of those cases in which the penalty provided by sub-rule (2) should not be applied.

    7. Interpreting the word ‘afterwards’ in sub-rule (2) it has been held in ‘Rayalu Ayyar v. Ramudu Ayyar’, AIR (13) 1926 Mad 934, that even if the numbering of suits by a Court officer be ‘prima facie’ evidence of the respective dates of admission, that does not determine that the suit bearing the later number was ‘afterwards’ launched within the meaning of O. 2 R. 2, which contemplates a later proceeding in the real sense. In laying down this view the learned Judges of the Madras High Court differed from the view expressed in the Full Bench ruling of the Allahabad High Court reported as ‘Murti v. Bhola Ram’, 16 All 165 (PB). It was held in the Allahabad ruling that where two suits are filed on the same day it must be presumed, until the contrary is proved (which has not been done in the present case), that the suits were presented and admitted in the order in which their numbers appear in the Register of Civil Suits. It was held by the learned Judges of the Madras High Court that it is open to the plaintiff to elect as to which of the two suits instituted by him together on the same day shall be held to be barred by the operation of O. 2 R. 2. In the first place, no such election was made by the plaintiff-respondent in the present case, and, in the next place, the matter should not in my opinion be left to the election of the plaintiff in every case. On the contrary, the matter should be made the subject matter of proof, and, if the plaintiff wishes to show that one of the two suits was filed before the other, the burden must be cast upon him to prove the fact. The question of election should properly arise only where the plaintiff not only alleges but also proves that both the plaints were presented simultaneously. Where, however, there is no evidence forthcoming on the aforesaid points, as is the case here, it must be presumed, as held in the Allahabad case, that the suits were presented and admitted in the order in which their numbers appear in the Register of Civil Suits. On this view the suit for recovery of Rs. 500/- which was given a subsequent number in the Register of Civil Suits, must be held to be a later suit for purposes of sub-rule (2). It may be stated here that the Allahabad view was also followed by the Rangoon High Court in “Standard Electric & Motor Works v. Picture Palace’, AIR (11) 1924 Rang 161 (2), although the bar of O. 2 R. 2 was held not to apply on the ground of consolidation. It has already been seen that the principle of consolidation cannot be applied in the present case.

    8. It may be further observed in this connection that the purpose of filing the two suits, as stated by the lower appellate Court, was to bring the matter within the pecuniary jurisdiction of the Subordinate Judge of Solan. It was observed by the learned Judges of the Allahabad High Court that to allow the plaintiffs to split their claims would be to

    “open the door to deliberate and continual evasion of the provisions and the spirit of Section 43 of the CPC (the corresponding provision in the Code of 1882).”

    9. The present is an illustration in point of such a deliberate evasion, and a plaintiff should not be allowed to take advantage of it. It is to be noted that under sub-rule (1) of rule 2 in order to bring his suit within the jurisdiction of a particular Court the plaintiff has to relinquish a portion of his claim. It would amount to a fraud upon this provision were he be allowed to split his claim and bring more suits than one in respect of the same in a Court of his choice. For all the above reasons, I am clearly of the opinion that the Bombay ruling relied upon by the lower appellate Court has no application to the facts of the present case, and that suit No. 88/1 of 1950 for recovery of Rs. 500/- which, in the absence of any evidence to the contrary, should be held to be the later suit, was barred by Order 2, Rule 2(2) of the CPC.

    10. The decision of the learned District Judge on the other legal question is equally unsustainable. Section 4 of the said Act provides for the fixation of fair rent by the Controller on the application of the tenant or the landlord. Section 5 provides against further increase in such fair rent except under certain conditions specified therein. Section 6 then lays down that, save as provided in S. 5, when the Controller has fixed the fair rent the landlord shall not claim or receive any premium or other like sum or any rent in excess of the fair rent, and that any agreement for the payment of any sum in addition to or of rent in excess of such fair rent shall be null and void. The next relevant provision is contained in S. 8 which lays down that where any sum has, whether before or after the commencement of the Act, been paid which is by reason of its provisions irrecoverable, it shall, within a certain period of limitation, be recoverable by the tenant from the landlord. It follows from these provisions that once the Controller has fixed the fair rent not only is the landlord debarred under S. 6 from receiving any sum in excess of it but he is also liable, subject to the claim being made by the tenant within a certain period of limitation to disgorge any such excess received by him in the past. And since the claim of the landlord referred to in S. 6 and the irrecoverable sum mentioned in S. 8 may relate to a period before the fixation of fair rent by the Controller under S. 4, it is further clear that the determination of fair rent by the Controller under S. 4 is capable of having a retros pectize effect. The position has been further emphasized by the provision under S. 6 already referred to, namely, that any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void. The only condition precedent to the bar against any future recovery of a sum in excess of fair rent, or to the restoration by the landlord of any such excess received by him in the past, is that the determination of fair rent by the Controller under S. 4 should have already been made. This condition has been fulfilled in the present case, as already shown. That being so, the landlord was debarred under S. 6(1)(a) from claiming or even receiving any rent in excess of fair rent. The learned District Judge therefore went clearly against the mandatory provisions of S. 6 by granting to the landlord a decree for receiving rent in excess of the fair rent already fixed by the Controller and by giving effect to an agreement which had become null and void. I am supported in this view, if any support is at all needed in view of the clear provisions of the Act, by the following decisions: ‘Chandra Narain v. D.N Dhawan’, AIR (37) 1950 Ajmer, 78: ‘Dr. Dr. G.V. Subba Rao v. Deviji Govindji’ AIR (37) 1950 Mad 555 and ‘Dulhanmal Rizumal v. Abdul Kadar’, AIR (37) 1950 Madh. B. 8. All these rulings proceeded on an interpretation of corresponding provisions in the Acts applicable to their respective States.

    11. The learned District Judge purports to have followed an unreported decision of the Punjab High Court in ‘Shiv Shanker v. G.D Khanna & Sons’, Civil Revn No. 340 of 1948. A copy of that judgment has been supplied to me by the learned counsel for the plaintiff-respondent. It appears that in that case an enhanced rent was fixed by the Controller as from a certain date on the landlord's application for determination of fair rent under Section 4 of the Punjab Urban Rent Restriction Act (VI(6) of 1947), and that in a suit filed by him against the tenant for recovery of certain arreas of rent it was held that the Rent Controller could not give retrospective effect to his order and therefore arrears of rent at the enhanced rate could only be calculated from the date of the Controller's order. For reasons recorded above I am unable, with all respect, to agree with the above view. There is no doubt that it is not within the province of the Controller to give effect to his order from any particular date, retrospective or prospective, for all that he is required to do u/s. 4 of the 1949 or the 1947 Act is to determine the fair rent after taking into consideration certain fads mentioned in the section. Once the Controller I has determined the fair rent the question of whether that rent is applicable to any particular period of time can only arise for determination in a suit in respect of rent between the landlord and the tenant, and the question will then be decided on a correct application of Ss. 6 and 8 to the facts of the case. So far therefore as the ruling purports to lay down that a Rent Controller cannot give a retrospective effect to his order I am in agreement with it; but I do not agree that in no case can the Controller's order have a retrospective effect. The learned District Judge therefore fell into an error in basing his decision on this unreported ruling of the Punjab High Court. That the learned District Judge has come to wrong conclusions on both the above questions of law does not, however, help the defendant-petitioner, for the aforesaid preliminary objection taken by the learned counsel for the plaintiff-respondent that the said erroneous decisions do not justify an interference by this Court in exercise of its revisional jurisdiction is well-founded. In support of his objection he cited the Privy Council ruling reported as ‘Venkatagiri v. H.R.E Board Madras’, AIR (36) 1949 P.C 156. This ruling and certain other Privy Council rulings referred to therein were reviewed by me in ‘Beg Ram v. Charan Das,’ AIR (38) 1951 Him Pr 16, and it cannot certainly be held, in accordance with the observations made by me in that case, that in arriving at the said erroneous conclusions of law the learned District Judge merely acted with material irregularity in exercise of his jurisdiction. The reason for this view is, as held in ‘Abdul Majid v. Daleep Singh,’ AIR (36) 1949 All 744, that the arriving at a conclusion or decision is a mental operation and the Court cannot be said to be acting in so coming to a conclusion or decision on a question of law or fact. And so far as arriving at a conclusion or decision is concerned, whether the lower appellate Court decided the questions rightly or wrongly it had jurisdiction to do so, and even if it decided wrongly it cannot be said to have acted with material irregularity in the exercise of its jurisdiction. Allowing the preliminary objection, therefore, I hold that this revision is incompetent, and I hereby reject it. In the particular circumstances of the case, I make no order as to the costs of this revision.

    V.R.B

    12. Revision dismissed.

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    Lalla Ram v. Naresh Chand
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