SANTOSH KUMAR SAHU v. SATYA NARAIN THAKUR

27.8.2004 was set aside by this Court in its order dated

3.1.2005 and the whole issue was remitted back to the court below for deciding the matter afresh. It is not in 2 doubt that the Court below has passed an order dated

5.4.2005 directing the opposite party to pay arrear of rent from December, 2001 to March, 2005 as also month to month current rent at the rate of Rs. 600/- per month. This time, the defendant-petitioner had filed Civil Revision No. 933/2005 which was dismissed as withdrawn on the prayer of the defendant-tenant that he would move the court below by filing a petition for framing issues with regard to the quantum of rent and also that the rent deposited by him in the court could not be allowed to be withdrawn by the plaintiff-petitioner till the disposal of the suit. It appears that thereafter the court below by an order dated 1.9.2005 had directed the defendant-tenant to deposit the amount both arrear and current in the Nazarat which could be withdrawn only on the basis of the final outcome of the suit. It was this order dated 1.9.2005 which triggered the filing of an application by the petitioner on 14.11.2005 seeking permission to withdraw the amount of rent deposited by the defendant-tenant but such prayer was refused by the court on the basis of the earlier order of this Court dated 2.8.2005 (Civil Revision No. 933/2005) and its follow up consequential order dated 1.9.2005. This Court as a matter of fact when it had allowed the defendant-tenant to withdraw his Civil Revision No. 3 933/2005 by only noting the submission of his counsel that the defendant-tenant wanted to file an application for framing of specific issue with respect to the quantum of rent as also for making a prayer that the rent so deposited by him should not be allowed to be withdrawn by the petitioner, did not decide any issue or indicate that the petitioner was not entitled to receive payment of such rent till the final adjudication in the eviction suit. Therefore, at least the order of this Court dated 2.8.2005 could not be made the basis for depriving the petitioner of the amount of rent nor order dated 1.9.2005 could have been passed contrary to the earlier order dated

5.4.2005. Since the order dated 5.4.2005 was in favour of the petitioner and was not interfered in any manner by this Court while dismissing the Civil Revision No. 933/2005, it was not open for the Court to take a different view in his subsequent order dated 1.9.2005. Counsel for the opposite party who has filed counter affidavit however has stressed that the order dated

5.4.2005 had acquired finality and therefore, this Court should not interfere with the impugned order. Miss. Sushmita Mishra has basically urged that the order dated 1.9.2005 was based on an impression of the Court that this Court in its order dated 2.8.2005 had directed the Court below to reconsider the order dated 4

5.4.2005 as with regard to the quantum of rent as also its being allowed to be withdrawn by the petitioner. For explaining this issue, she would refer to the impugned order where the court below has held that the matter relating to depositing of rent and its payment to the petitioner could be decided only by this Court (High Court). This Court would find that neither the order dated 5.4.2005 passed in pursuance of the direction given by this Court in Civil Revision No. 1211/2004 disposed of on 3.1.2005 is on record nor even the order dated 1.9.2005 passed by the court below after withdrawal of Civil Revision No. 933/2005 (disposed of on 2.8.2005) is on record so as to conclusively decide this issue. This much however is clear that earlier an order dated 5.4.2005 was in favour of the petitioner which was recalled/modified on 1.9.2005 by making the order of this Court dated 2.8.2005 in Civil Revision No. 933/2005. In other words, if Civil Revision No. 933/2005 was not filed, the order in favour of the petitioner dated 5.4.2005 had to govern both the parties and since the said order dated 5.4.2005 was in no way disturbed/modified by this Court even subsequent civil revision filed by the defendant-tenant, the Court could not have taken away any benefit which 5 was already restored on the petitioner by strength of the order dated 5.4.2005. In that view of the matter, this Court would require the Court below to reconsider the whole issue afresh and for this purpose, while setting aside the impugned order dated 9.1.2006 would direct the Court below to pass a fresh order keeping in view that if by virtue of the order dated 5.4.2005, the petitioner was entitled for payment of rent both arrear and current, the same could not be refused to him as that order was never interfered by this Court. On the other hand, if by the order dated 5.4.2005, there was no such direction for payment of rent to the petitioner and the Court had merely directed for its being deposited in Nazarat, it would direct the defendant-tenant to keep on depositing payable arrear and current rent in the Nazarat and a decision with regard to its payment would be taken only in terms of the final outcome of the eviction suit. With the aforementioned observations and direction, this civil revision application is disposed of. Rsh (Mihir Kumar Jha, J.)