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S.B. CIVIL REVIEW/RECALL PETITION NO.6/2008
(Praveen Kumar Tater Vs. Anil Kumar & Ors.)
Date of order : 14th August, 2008
PRESENT
HON’BLE DR. JUSTICE VINEET KOTHARI
Mr. S.C. Maloo for the petitioner.
Mr. N.R. Choudhry for the respondents.
——–
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 Vs. 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the old law stood repealed by the new Rent Control Act, 2001 and,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
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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 & Ors. Vs. Pine Chemicals Ltd. & Ors. – (1995)
1 SCC 58, Uma Addhya & Ors. Vs. Biren Mondal & Ors. – AIR
2006 Calcutta 200 and Board of Control for Cricket, India & Anr.
Vs. 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 Vs. Smt. Usha Rani
Banik & Ors. – 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
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Rule 1 C.P.C. 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 Vs. Addl. Distt. Judge No.5, Kota & Ors. – 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 Vs. Tripti
Kumar Kothari – 2003(4) WLC (Raj.) 790 = 2004 (1)
RCR 621 (By Hon’ble Mr. Jusice A.C. Goyal);
(2) Ugam Raj Vs. Civil Judge (SD), Sojat City &
Others – 2005(2) DNJ (Raj.)1136 (by Hon’ble Mr.
Justice Govind Mathur);
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(3) Heera Lal Vs. 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. Vs. 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. Vs. 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 1950had 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
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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 govern3ed 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.
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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. 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 C.P.C. 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.
[ DR. VINEET KOTHARI ], J.
item No.65
babulal/