JUDGMENT Anjani Kumar, J.
1. The petitioner, tenant aggrieved by the order passed by the appellate authority dated 1.5.2004 under the provisions of U. P. Act No. 13 of 1972, whereby the appellate authority modified the order of the Rent Control and Eviction Officer under Section 21 (8) of U. P. Act No. 13 of 1972.
2. The facts leading to filing of the writ petition are that the petitioner is a tenant of the accommodation in dispute which is under his tenancy and the contesting respondent-landlady, Omvati filed an application in December, 1981, purported to be an application under Section 21 (8) of the U. P. Act No. 13 of 1972, (hereinafter referred to as the 'Act'), for enhancement of the rent. This application was allowed by the Rent Control and Eviction Officer and the rent was enhanced from Rs. 340 to 600 with effect from the date of application, i.e., December, 1981. Aggrieved thereby the landlady as well as petitioner-tenant, both, preferred appeals before the appellate authority. The appeal of the landlady as well as of the petitioner-tenant was heard together and on appeal filed by the landlady rent was enhanced to Rs. 1,050.85. The appellate authority has decided the matter on 19.11.1987 and thereafter the landlady filed another application dated 12.4.1994, as contemplated under Section 21 (8) of the Act for further enhancement of the rent. During the pendency of this application dated 12.4.1984, the landlady died and since as per assertions made by learned counsel for the petitioner no substitution was permissible under law for bringing the legal heirs on record, the application dated 12.4.1994, filed by Smt. Omvati, landlady stands abated on 31.3.1995, which was registered as Case No. 64 of 1994. The heirs of the landlady who are not disputed to be heirs, filed an application dated 17.11.1995, before the District Magistrate with the assertions that they are the heirs of the landlady and they have stepped into shoes of the landlady. This application filed by the respondent Nos. 3 to 5 (heirs of the landlady) has been objected by the petitioner-tenant firstly, on the ground that second application dated 17.11.1995 is not permissible under law and if permissible, it is only after expiry of five years from the date of last enhancement and secondly since as a consequence of the enhancement by the District Magistrate, the rent was enhanced beyond Rs. 2,000, the provisions of Act do not apply, therefore application under Section 21 (8) of the Act was liable to be dismissed. The District Magistrate by the order dated 24.1.2001, enhanced the rent to Rs. 7,809.50 per month. Aggrieved thereby the petitioner-tenant preferred an appeal being Misc. Appeal No. 102 of 2001 and agitated the same points. By the impugned order the appellate authority dismissed the appeal filed by the petitioner-tenant and appeal filed by the landlady for enhancement of the rent was allowed and the rent was enhanced by the appellate authority to Rs. 11,846.70.
3. Before this Court, it has been contended by learned counsel for the petitioner apart from above two arguments that since the appeal of the landlady was dismissed as abated, therefore, it was not permissible for the heirs of the landlady to file fresh appeal and the principle of res judicata will apply, thus according to learned counsel their appeal was liable to be dismissed.
4. So far as the first argument regarding enhancement of rent beyond Rs. 2,000 therefore, jurisdiction under the Act ceases, learned counsel for the respondent relying upon a decision of this Court in State Bank of India v. District Judge, Lalitpur and others, ARC 1997 (1) 205, has submitted that his case is covered by the aforesaid judgment wherein this Court has held as under :
"So far as the question of application of the Act upon the building in question is concerned at the time of filing of application under Section 21 (8) of the Act, admittedly the rent of building was Rs. 1,600 per month, the application was, therefore, legally maintainable and prescribed authority has the jurisdiction to entertain it. Therefore, the submissions made by the learned counsel for the petitioner cannot be accepted."
5. So far as the another aspect that the appeal having been dismissed as abated, no second application could have been filed for five years, learned counsel for the respondent has relied upon the provisions of second proviso to Section 21 (8) and judgment in State of U. P. through the Superintendent of Police (Regional) Special Branch, Intelligence Department, U. P. at Bareilly v. Har Narain Tandon and others, 2002 (2) ARC 273, this Court has held as under :
"The petitioner-tenant raised further objection on the maintainability of the application filed by the landlord. The Rent Control and Eviction Officer vide its order dated 4.9.1992, rejected the application filed by the landlord stating that the application is not maintainable because the same was filed within"" five years from 1986, thereafter, the respondent-landlord preferred an appeal against the order dated 4.9.1992, wherein the view taken by the Rent Control and Eviction Officer that since five years have not passed after passing of the order in the year 1986, therefore, this application is not maintainable, was assailed on the ground that a perusal of Section 21 (8) proviso would demonstrate that bar of five years is applicable to the situation of the last enhancement but in the present case the last enhancement was made in the year 1983 and not in the year 1986 because in the year 1986, the appeal preferred by the petitioner-tenant was dismissed. So far as the purpose of maintainability of the second application is concerned, it is the last enhancement that has to be taken into consideration in the year 1982 and therefore, the present application, when has been termed as second application in the year 1988, is well within time."
6. In view of the settled principle of law that the appeal is in continuation of original proceedings, the contention regarding maintainability of application deserves to be rejected. So far as the contention that the second application filed by the landlady, which was dismissed as abated is being admitted fact this application could not have been filed for five years from the date of death of the landlady or from the date of its process. From the perusal of the second proviso to Section 21 (8) of U. P. Act No. 13 of 1972 to me it appears that it talks of enhancement of rent after five years from the date of the last order of enhancement and not from any other incident. The application dated 17.11.1995, was filed after five years of last enhancement. Thus, this argument also deserves to be rejected.
7. In this view of the matter, this writ petition has no force and is dismissed.