NARAIN SINGH Vs. RAM GOPAL

JUDGEMENT

(1.) THIS revision application has been filed by the defendant petitioner in a suit for arrears of rent and for eviction, filed by the plaintiff Ram Gopal. As regards the title of both the parties, there are certain conflicting facts in the background. It is alleged that the property initially belonged to the father of the present petitioner Bhawan Singh, and after the death of his father, his mother acting as a guardian on behalf of the minor Narain Singh, mortgaged the property in favour of Ram Gopal. It was usufructuary mortgage. It was agreed by and between the parties that while the property would remain in mortgage Narain Singh would be paying a rent of Rs. 12/- per month to Ram Gopal. Narain Singh, however, does not admit this position. Be that as it may, Ram Gopal brought a suit for arrears of rent in a previous suit and on account of non-satisfaction of the decree it is alleged by the plaintiff respondent that the right of redemption of Narain Singh in respect of the mortgage property got sold by auction and it was purchased by Ram Sanehi. Narain Singh, however, remained as a tenant in respect of the said property. Narain Singh's contention on the other hand is that his proprietary interest in respect of the mortgaged property still subsists. Ram Sanehi has, however, belatedly filed an application for getting himself impleaded in the suit. It is contended by the respondent Ram Gopal that Narain Singh was also a party to the previous ex parte decree. In this state of conflicting claims it was not proper for the Court of appeal to have rejected the documentary evidence which was filed by Narain Singh before it in the appeal preferred by him in Misc. Appeal No. 19/91. Earlier the trial Court passed an order dated 26.9.1991 in Civil Suit No. 25/91 fixing a provisional rent which was directed to be paid. The trial Court directed present petitioner as a defendant to pay Rs. 7,822.25 (Rs. 6,700/- as principal and Rs. 1,122.25 as interest) against which the appeal was preferred by Narain Singh. It is the contention of the present petitioner by way of filing the present revision against the appellate order which upheld the order of the trial Court that neither of the Courts below could really advert as to the exact nature of dispute inasmuch as the premises was never let out to the petitioner Narain Singh by Ram Gopal and that Ram Gopal was not the owner of the property and that there was a dispute with regard to the ownership of the property. The Courts below ought to have first decided upon on the question of relationship of the parties as regards the petition in between them as landlord and tenant and thereafter the provisional rent ought to have been determined in the proper framework of law, but in the instant case, the Courts below failed to appreciate this aspect of the matter and passed orders taking it to be a simple case of non-payment of rent and eviction filed by a landlord against the tenant. It has further been urged that the provisions of Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, have not been properly appreciated.

(2.) THE petitioner has placed before me a judgment of a learned Single Judge of our Court in Shan Mohd v. Hanif, 1995(1) WLC Raj. 703 : 1996(2) RCR 666(Rajasthan), where it has been given out, inter alia, that provisional rent could only be determined on a prima facie finding about relationship of landlord and tenant and not otherwise. In the facts of the said case it was decided that the Court is entitled to give a prima facie finding about the relationship of landlord and tenant and if the finding is recorded that there exists a relationship as that of landlord and tenant, then provisional rent could be fixed and not otherwise. The High Court in this case rejected the contention on behalf of the landlord that in every case a provisional rent has to be determined by a Court even if the landlord is not able to ex parte establish the relationship of landlord and tenant. What the Court really urged upon is as to have a prima facie finding about the relationship being in existence and thereafter an order for provisional rent has to be made and not otherwise. Another Division Bench judgment was cited before me in Mst. Tulsi v. Sacchanand, 1993(2) RLR 498, where it was decided that Section 13(3) is attracted in a suit for eviction on the ground of default with or without any other ground referred to in Section 13(1) even if existence of relationship of landlord and tenant between the parties is denied by the defendant. The Court is required to act under Section 13(3) on the basis of materials on record and after hearing the parties even on the question of relationship of landlord and tenant it is to make a prima facie finding that there is any relationship of landlord and tenant and thereafter the determination of rent can be made provisionally. In case it prima facie finds that the relationship of landlord and tenant does not exist, no rent is required to be determined under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.