ORDER Seth, J.
1. The applicant is the owner of certain shops. The opposite party, who was the plaintiff in the Court below, was occupying a shop belonging to the applicant. He instituted a suit purporting to be a suit under Section 5(4), U. P. Ordinance (NO. III [3] :of 1946). He alleged that according to the municipal assessment the rest came to Rs. 6 per month and prayed that a reasonable rent be fixed by the Court. The suit was instituted on 20th November 1946. The U. P. Rent Control Act, III [3] of 1947 came into force with retrospective effect from October 1946. It was, therefore, applicable to the present suit and the present suit may be deemed to be a suit under the Act. It is not, however, necessary to decide whether the suit is to be treated to be a suit under the Ordinance or to be a suit under the Act, for in either view I am of the opinion that the suit was not maintainable.
2. The Ordinance and the Act both provide that the rent payable by a tenant shall be the rent agreed upon between the parties. They both provide for enhancement of rent by the landlord in certain contingencies when the tenant is occupying upon an agreed rent, but neither the Ordinance nor the Act provides for abatement of rent at the instance of the tenant where he is occupying the premises on an agreed rent. In the present case the plaintiff did not aver that there was no agreed rent. The defendant landlord did aver that there was an agreed rent. The Court below has not recorded any finding upon the point. Be that as it may, it appears to me that a suit for abatement of rent could not be maintained without an allegation that the tenant was occupying the premises without any fixation of rent and without proof of such an allegation. The suit purported to be under Section 5 (4) of the Ordinance which corresponds to Section 5 (4) of the Act. That section provides for the fixation of rent where the landlord alleges and proves that the reason-able rent is too inadequate or where the tenant proves that the reasonable rent is excessive. Such a suit is maintainable only where a reasonable rent is payable and is being paid. It is not maintainable when no question of reasonable rent arises. In a case where there is an agreed rent payable by the tenant to the landlord no question of reasonale rent arises. The suit was, therefore,: not maintainable either under the Ordinance or under the Act.
3. Learned counsel for the opposite party has taken a preliminary objection to the hearing of this revision. His contention is that that was not a suit either under the Ordinance or under the Act, but was a regular suit and therefore, the decree of the Munsif was appealable and hence his order is not open to revision under Section 115, Civil P. C. This preliminary objection itself concedes the main point urged by the applicant, namely, that the suit was not maintainable. As regards the maintainability of the revision the suit purported to be under the Ordinance and the Court below has acted under the Act or Ordinance. It has, therefore, exercised jurisdiction not vested in it by law. It has not tried the suit as a regular suit. Its decree was, therefore, not appealable. The revision is directed against an order passed under Section 5 (4) of the Act or the Ordinance as it may be deemed to be. This application in revision is, therefore, maintainable.
4. In the result this application in revision is allowed and the order and the decree of the Court below are set aside and the plaintiff's suit is dismissed with costs to the defendant in all the Courts.