MODMAL Vs. MAHESHWARI SAMAJ JODHPUR

JUDGEMENT

(1.) THIS is a judgment-debtor's revision directed against an order of the learned Additional Munsif & Judicial Magistrate (1), Jodhpur dated June 1,1985, whereby his objections relating to the non-executability of the decree were disallowed.

(2.) IN order to properly appreciate the contentions raised at the bar, it is necessary to have a brief resume of the relevant facts. The non-petitioner Maheshwari Samaj, Jodhpur (hereinafter to be referred as 'the landlord' or the decree-holder) instituted a suit for recovery of arrears of rent and eviction against the revision-petitioner (hereinafter to be referred as 'the tenant' or the judgment -debtor) in the Court below on August 30,1977 in respect of the shop in dispute. The only ground on which eviction of the tenant was sought was that he had neither paid nor tendered the amount of rent due from him for more than six months. He was, therefore, liable to be evicted on the ground mentioned in section 13 (1) (a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short 'the Act' hereinafter ). The defendant put appearance and contested the suit. He filed written statement on November 25,1980. Issues were framed on March 3, 1982. Thereafter the trial lingered on. The plaintiff was to lead his evidence on September 4,1984. However, on September 4, 1984, the tenant failed to put appearance. The trial was held ex-parte thereafter. The suit for eviction and arrears of rent was decreed against the tenant on January 12, 1985. The landlord decree-holder applied for the execution of the decree. The tenant-judgment-debtor moved an application under sections 47 and 151 of the Code of Civil Procedure and challenged the decree. It was alleged by him that the decree is a nullity and was not capable of execution. The ground urged by him to render the decree a nullity is that the trial Court failed to make a compliance of the mandatory provisions of section 13 (3) of the Act inasmuch as the provisional rent was not determined. Had the provisional rent been determined under section 13 (3) of the Act the tenant would have made the payment and the suit would have been then dismissed. Since no compliance of the provisions of sec. 13 (3) was made by the trial Court during the pendency of the suit, the decree-passed later on is not valid and enforceable. The learned Munsif heard both the parties and by his impugned order disallowed the objections of the tenant relating to the non- executability of the decree. Hence this revision.

(3.) A bare reading of the sub-section makes it abundantly clear that the provisional rent is to be determined either on the first date of hearing or on any other date fixed by the Court for that purpose and in no case after framing of the issues. The stage for determining the provisional rent comes to an end as soon as the issues are framed. After the issues are framed, the stage for determining the provisional rent remains no more.