HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.889 of 2002 Date: 23-9-2011 Between Nanik Ram … Petitioner and Bavarlal (Died) per L.Rs., Pukka Raj and 3 and others … Respondents HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.889 of 2002 Order: Aggrieved by the judgment and decree dated 27-11-2001 in R.C.A.No.70 of 1996 passed by the Rent Control Appellate Authority cum Principal Senior Civil Judge, Visakhapatnam, Visakhapatnam district, the present civil revision petition is filed. 2. The petitioner herein is the tenant and the 1st respondent is the deceased original owner of the petition schedule premises, who filed the appeal R.C.A.No.70 of 1996 on the file of the first appellate Court against the order and decree dated 25-9-1996 in R.C.C.No.127 of 1995 on the file of the Rent Controller, Visakhapatnam. The respondents 2 to 5 are the legal representatives of the deceased 1st respondent. 3. For the sake of convenience, the parties herein are referred to as they are arrayed in the first appellate Court. 4. The brief facts of the case are that the deceased original owner filed R.C.C.No.127 of 1995 on the file of the lower tribunal for eviction of the tenant from the petition schedule premises on the ground of default in payment of rents and the said R.C.C., was dismissed. Being aggrieved, the deceased original owner filed R.C.A.No.70 of 1996 on the file of the first appellate Court and the same was dismissed, confirming the order and decree in R.C.C.No.127 of 1995, but, however, the first appellate Court fixed the fair rent though there is no prayer in the appeal. Being aggrieved, the present civil revision petition is filed by the tenant. 5. Now, the point for consideration is: Whether the impugned judgment passed by the Rent Control Appellate Authority in R.C.A.No.70 of 1996 fixing fair rent is sustainable ? 6. Point:- As seen from the impugned judgment in R.C.A.No.70 of 1996, the first appellate Court, while agreeing with the finding of the lower tribunal that the owner of the petition schedule property was failed to prove that there was delay in payment of rents and also required the premises for bona fide requirement, enhanced the rent on the petition schedule premises from Rs.900/- to Rs.2,100/- per month placing reliance on a judgment of the Hon’ble Supreme Court in Punjab National Bank v. Arjun Dev Arora (AIR 1987 SC 148). 7. The learned counsel appearing for the appellant-tenant mainly urged that the first appellate Court erred in fixing the fair rent as Rs.2,100/- per month from the month of November, 2001, contrary to the provision of G.O.Ms.No.636, dated 29-12-1983, even though the landlord has not urged for fixing fair rent. He also urged that the landlord filed another case in R.C.C.No.98 of 1999 before the Rent Controller for fixation of fair rent and the same is pending for the same relief and therefore, fixing the fair rent in the appeal R.C.A.No.70 of 1996, which was filed against the order and decree in R.C.C.No.127 of 1995, does not arise. 8. It is an admitted fact that the petitioner herein is the tenant in the petition schedule property. R.C.A.No.70 of 1996 was filed by the deceased original land owner before the first appellate Court against the order and decree in R.C.C.No.127 of 1995 on the file of the Rent Controller, Visakhapatnam. As seen from the record, the deceased original land owner leased out the petition schedule premises to the tenant under a registered lease deed dated 01-10-1984 and after the expiry of the lease period, he asked the tenant to vacate the petition schedule premises to start his own business, but in vain. 9. Whereas, the contention of the tenant is that he has been carrying on cloth business by paying rents regularly to the deceased original land owner and in the month of December, 1979, the land owner demanded him to enhance the rent from Rs.400/- to Rs.1,000/- per month, for which he refused. Then the land owner filed R.C.C.No.13 of 1980, which was ended in compromise on the terms of payment of rent of Rs.900/- per month and a registered lease deed was also executed on 15-9-1984 and just before expiry of the lease, the deceased original land owner again demanded the tenant to enhance the rent to Rs.1,500/- per month, for which he did not agree, resulting the land owner filed the R.C.C for eviction. 10. In the lower tribunal, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked on behalf of the deceased original land owner, and R.Ws.1 and 2 were examined and Exs.B-1 and B-2 were marked on behalf of the tenant. 11. After due enquiry, the lower tribunal negatived the contentions of the land owner and dismissed the R.C.C. Aggrieved by the said order, the deceased original land owner filed an appeal R.C.A and the first appellate Court, while agreeing with the finding of the lower tribunal that there are no bona fides on the part of the land owner, dismissed the said appeal confirming the order of the lower tribunal, however, fixed the fair rent by following the judgment of the Hon’ble Supreme Court in D.C.Oswal v. V.K.Subbiah (AIR 1992 SC 184). 12. From a perusal of the aforesaid judgment in D.C.Oswal’s case (supra), it appears that the Hon’ble Supreme Court in its wisdom, fixed the fair rent in the set of circumstances stated in the said judgment. Following the principles laid down by the Hon’ble Supreme Court in the said judgment, the finding of the first appellate Court, in any view of the matter, is not sustainable, the reason being that the deceased original land owner did not plead either in appeal grounds or at the time of arguments that he is entitled for fixation of fair rent and also for enhancement of rent. The granting of enhancement of rent is beyond the purview of the appeal filed by the land owner. 13. It is also brought to the notice of this Court that the deceased original land owner also filed another case in R.C.C.No.98 of 1999 before the Rent Controller for fixation of fair rent. When the said R.C.C is filed and pending between the same parties, fixation of fair rent in the impugned judgment, in my view, is erroneous and beyond the scope of the appeal. Accordingly, the finding of the first appellate Court fixing the fair rent is not sustainable. 14. In the result, the civil revision petition is allowed, setting aside the judgment under revision. No costs. ___________________ K.S.APPA RAO, J. 23rd September, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.889 of 2002 23rd September, 2011. (Ak)