DEVI DAS Vs. NARAIN DAS

JUDGEMENT

(1.) THIS appeal has been preferred against the order dated 22.5.96 passed by the learned Addl. District Judge No. 4, Jaipur City, Jaipur whereby the appellate court upheld the order dated 22.5.96 of the trial court determining the provisional rent of the property in dispute at the rate of Rs. 1650/ -per month and also the arrears of rent for the period from 1.1.93 to 30.4.96 amounting to Rs. 66,000/ - pending the hearing and final disposal of the appeal. The appellate Court had also directed the appellant to deposit the aforesaid amount towards provisional rent as well as the arrears for the aforesaid period (i.e. for 40 months) and the interest of Rs. 5,909/ - on the aforesaid amount in all amounting to Rs. 71,909/ -. The appellant was further directed to deposit the said amount within 15 days of the said order in the Bank account of the respondent or pay in cash to him or deposit the same with the Court. He was also directed to deposit the further rent at the same rate by 15th of each succeeding month. Aggrieved by the said order, the appellant has preferred this appeal. The appellant has assailed the impugned order on the ground that the primary evidence has not been taken into account as required by Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act'). The appellant has further contended that the trial court had acted in excess of jurisdiction in determining the provisional rent and as such the order of the appellate court is liable to be quashed and set aside. The appellant has further contended that he has not been given any opportunity of cross -examination of the witnesses who had deposed on affidavit in favour of the plaintiff -respondent wherein he had stated that he had paid rent in respect of the suit premises at the rate of Rs. 1250/ - per month. The appellant has also contended that the rent was sent by money orders for 15 months upto November, 1994 but the money order was not accepted by the landlord and instead he had filed a suit for rent and eviction against the appellant. In the memo of appeal, it has been further contended by the learned Counsel for the appellant that the secondary evidence relating to the business being run by the respondent i.e. Income -tax ledger and the documents of House -tax from the municipal records were also not examined and considered by the learned appellate court for determining the rent at the rate of Rs. 1650/ -per month for the disputed period. The appellant has further assailed the impugned order for the reason that the trial court had erroneously placed reliance upon the affidavit of sole witness Shri Kishan Chand who was the previous tenant of the landlord and had been residing in the premises for the last 7 years and was paying the rent of Rs. 1250/ -per month since 1983 to 1988, hence the case of the appellant has been seriously prejudiced since the appellate court has not given any opportunity to the appellant to lead any secondary evidence on the record.

(2.) ON the other hand, learned Counsel for the respondent has controverted the contentions advanced by the learned Counsel for the appellant and has placed reliance upon the judgment of this Court in the matter of Smt. Nirupama Ben v. Devat Singh reported in wherein the similar question had arisen for consideration of this Court. This was a case of oral tenancy and there was no written agreement or the rent receipt executed by the parties. The dispute had arisen regarding the. rate of rent. This Court held that in such like cases, while fixing the provisional rent under Section 13(3) of the Act, there is a mandatory duty cast upon the Court to determine the provisional rent if a suit for eviction is based on any of the grounds setforth under Section 13 of the Act. The Court should calculate the rate of rent at which it was last paid or was payable for the period for which the tenant had made the default. This determination of rent in Sub -section (3) of Section 13 of the Act is provisional subject to final adjustment, correction and modifications subsequently when the suit is finally disposed of and the object of the said provision is to afford protection to the tenant and give him one more opportunity to make the payment of arrears of rent.

(3.) I have heard the learned Counsel for the parties at length and also perused the summoned record. Admittedly, there is no rent -note executed between the parties nor any rent receipt has been placed on the record by the appellant.