NARESH SACHDEVA Vs. PRITHVIPAL SINGH

JUDGEMENT

(1.) DEFENDANT-appellant seeks to challenge the order dated 12. 1. 1999 of the learned Additional District Judge No. 1 Kota whereby provisional rent u/s. 13 (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Rent Act) has been determined.

(2.) BRIEF re`sume' of the facts is that the plaintiff-respondents (for short the landlord) instituted suit for ejectment and recovery of rent in respect of tenanted property against the defendant-appellant (for short the tenant) on 18. 12. 1997 on the ground of default in payment of rent alleged to be due since 5. 3. 1996 to 30. 11. 1997 on the date of presentation of plaint. It was averred that the tenant agreed to pay Rs. 39,172/-per month as rent and rent deed was executed by him on 16. 11. 1995. The tenant filed written statement on 8. 7. 1998. Learned trial Court vide impugned order determined the rent u/s. 13 (3) of the Rent Act.

(3.) SUB-sections (3), (7) and (8) of Sec. 13 of the Rent Act were substituted by Sec. 8 (1) of the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Ordinance, 1975 Rajasthan Ordinance No. 26 of 1975 ). The detailed procedure for determination of provisional rent has not been provided in sub-sec. (3), but a bare perusal of the sub-section reveals that the Court has to hear the parties before determining provisional rent on the basis of material on record i. e. pleadings and other documents submitted by the parties. Calculation has to be made on the basis of rent last paid and interest will be allowed on arrears of rent at the rate of six per cent per annum. The time barred arrears of rent shall not be taken into considera-tion for such calculation. Clause (b) of SUB-sec. (8) deals with the situation when the amount of rent paid by the tenant as provisionally determined under sub-sec. (3) is in excess of the amount finally decided by the Court. Thus sub-sec. (8) is based on equitable principle that one has paid more than due, must get his money back. The provisional rent if determined in excess of the amount due may be refun-ded back to the tenant. In Brij Mohan vs. Hargun Dass (3), it was indicated that the determination of rent u/s. 13 (3) is only provisional and Sec. 13 (8) of the Act takes sufficient care of the tenants interest in case at the time of decision of the suit, the trial Court finds that the amount determined and deposited or paid under sub-sec. (3) is in excess of the amount of rent finally decided payable by the tenant. In Pra-tibha Mishra vs. Saroj Kumari (4) it was held that final rent is to be determined u/s. 13 (8) (b) at the end of the trial. If the provisional rent is determined on the basis of the record available, no prejudice is caused to the tenant as the final decision will be taken at the end of the trial u/s. 13 (8) (b) of the Rent Act and amount deposited could be adjusted.