RAMESHWAR Vs. SITA RAM

JUDGEMENT

(1.) THIS petition has been filed against the Judgment dt. 22.4.2004 passed by learned Addl. District Judge, Kotputli District Jaipur (hereinafter 'the appellate court') allowing the appeal filed by the respondent plaintiff landlord (hereinafter 'the plaintiff) determining the provisional rent payable by the petitioner defendant tenant (hereinafter 'the defendant') @ Rs. 700/ - p.m. effective 1.12.1999 with interest @ 6% p.a. against Rs. 75/ - p.m. determined by the learned Civil Judge (Jr. Division) Kotputli District Jaipur (hereinafter 'the trial court') vide order dt. 23.5.2003 in the plaintiff's suit for eviction and arrears of rent. Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the Act of 1950') provides that the trial Court may before the framing of issues after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in Court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default. Non -payment of provisional rent so determined would entail striking of the tenant's defence in the eviction petition. Sub -section 7 of Section 13 of the Act of 1950 provides that the Court shall decide the dispute finally with regard to the rent payable at the time of the final judgment in the suit.

(2.) THE provisions of payment of provisional rent and the consequence of non -payment thereof make it evident that the determination of provisional rent is a serious matter as non -payment subsequent to its determination can lead to striking out of the defence of the tenant. Sub -section (3) of Section 13 of the Act of 1950 detailed here -in -above provides for the manner of determination of provisional rent i.e. on the basis of rent last paid or payable for which material on record is to be taken into consideration. The trial Court on consideration of the matter before it came to the conclusion that even though the case set up by the plaintiff on the one hand and the defendant on the other in the proceedings under Sec. 13(3) of the Act of 1950 was not wholly reliable as to the rent paid or payable on the date of the filing of the eviction suit. From the evidence based on documents on record it transpired that admittedly the defendant tenant first paid rent Rs. 50/ - p.m. and thereafter Rs. 75/ - p.m. sometime in 1988. Evidence thereafter was wanting -notwithstanding the fact that both - the plaintiff landlord and the defendant tenant propagated receipts which did not inspire much confidence without being proved in accordance with law. In the circumstances relying upon the last paid rent the trial Court vide its order dt. 23.5.2003 determined the provisional rent @ Rs. 75/ - p.m. Against the aforesaid order of trial Court, the plaintiff preferred an appeal before the appellate Court. The appellate Court vide its Judgment dt. 22.4.2004 primarily on the basis of rent in the vicinity of the tenanted shop in issue and purported rent receipts signed not by the defendant tenant but the plaintiff landlord proceeded to determine the provisional rent @ Rs. 700/ - p.m. effective 1.12.1999 with interest @ 6% p.a. This judgment of the appellate Court passed on 22.4.2004 is under challenge before this Court under Article 227 of the Constitution of India.

(3.) IN my considered opinion within the scope of Section 13(3) of the Act of 1950 the determination of the provisional rent is to be dependant on prima -facie proof of rent last paid in the context of the material before the trial Court. On that test, the trial Court had acted within its jurisdiction under Sec. 13(3) of the Act of 1950 in determining the provisional rent @ Rs. 75/ - p.m. in view of receipts thereof not seriously disputed as of 1988. Indeed there was no material/evidence of clinching worth with regard to the rent paid thereafter, till the filing of the suit. In my considered opinion in the absence of any definitive material before the trial Court with regard to the rent paid after 1988, the trial Court was absolutely right in determining the provisional rent with reference to such rent last paid in the year 1988 evidenced by receipts thereof. The appellate Court however proceeded to exercise its appellate power on considerations not germane to Section 13(3) of the Act of 1950. In as much as it sought to rely upon rent prevailing in the vicinity in the 1990's and purported rent receipts unilaterally signed by the plaintiff landlord -an obviously interested party in higher provisional rent. That to my mind was wholly without jurisdiction, as the rent in the vicinity is not a relevant consideration for determination of the provisional rent under Sec. 13(3) of the Act of 1950. Aside of the above it is an admitted fact that the plaintiff and the defendant have been earlier involved in litigation during the subsistence of the tenancy as a result of which the plaintiff earlier filed a suit for eviction which was subsequently withdrawn. Thereafter the defendant took resort to Section 19A of the Act of 1950 for deposit of the rent with the jurisdictional Court in view of the refusal of the plaintiff to accept the contracted rent.