DUNGAR SINGH Vs. MUKESH KUMAR

JUDGEMENT

(1.) The service is complete. The matter comes up for consideration of stay petition. However, with the consent of the learned consent for the parties, the revision petition itself is being heard finally.

(2.) According to the petitioner, in the present suit for eviction which is only based on the ground of default, the petitioner lodged a counter claim for determination of standard rent and requested the learned trial court to make determination of provisional rent. A bare Perusal of the impugned order shows that the learned trial court declined to make any determination solely on the ground that the question of determination of standard rent shall be decided by framing appropriate issue and after trial. It has further been observed that since the suit is not based on the question of default, provisional determination under Sec. 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred to as the Act) is not necessary. However, since the learned trial court did not make determination of any provisional rent as contemplated by Sec. 7(1) of the Act, the petitioner filed an appeal before the appellate court under Sec. 22 of the Act, which has been dismissed by simply observing that the determination has rightly been declined under Sec. 13(3), and [hat since the defendant admits to be paying rent at the rate of Rs. 950.00 per month, primafacie standard rent cannot be determined at any lesser figure. With this finding the appeal has been dismissed with Rs. 200.00 as costs.

(3.) Having heard the learned counsel for the parties and having perused the impugned orders, so also the provisions of Sec. 7(1) of the Act, I am satisfied that the learned courts below were in jurisdictional error in not making determination of provisional rent as contemplated by Sec. 7(1) of the Act. When the claim is lodged for determination of standard rent, by the defendant by way of counter claim, if the original suit by the landlord is not based on the ground of default, as contemplated by Sec. 13(1) (a), provisional determination of rent under Sec. 13(3), of course need not be made, but in such case determination of provisional rent under Sec. 7(1) obviously is to be done. This determination of the provisional rent is to be on relevant parameters as laid down under the Act and the learned trial court is to actively exercise its judicial discretion in arriving at an appropriate figure of provisional rent after taking into consideration the relevant considerations. In such circumstances, to decline to make determination of provisional rent, on the part of the learned trial court clearly tantamounts to failure to exercise jurisdiction mandatorily directed to be exercised by Sec. 7(1) of the Act. So far as the appellate court is concerned, at this stage in this appeal the learned appellate court was clearly in error rather jurisdictional error, in giving the finding, obviously without any consideration of relevant parameters, that standard rent cannot be determined at any figure less than the agreed rent. I make it clear that I should not be understood to mean that in every case the determination of provisional rent has to be at a figure lesser than the agreed rent, but then the learned trial court, as observed above, is to exercise its active judicial discretion on relevant parameters and to make determination of provisional rent under Sec. 7(1) of the Act.