Manoj Agarwal vs Geeta Singhal

Sheel Nagu, J.—Learned counsel for the rival parties are heard on the question of admission.

This petition under Article 227 of the Constitution of India assails interlocutory order dated 10/12/2014 (Annexure P-1) passed by 2nd Additional Civil Judge, Class-1 to the Court of 1st Additional Civil Judge, Class-1, Gwalior, whereby, an application under section 13(2) of M.P. Accommodation Control Act, 1961 (for brevity ''Act of 1961'') fixing the provisional rent as Rs. 5,000/- per month w.e.f. October, 2011 and allowing another application of the landlord/respondent herein preferred under Order VII Rule 14(3) of CPC by taking certain documents on record.

It is contended by learned counsel for the petitioner/tenant that rent note vouching for payment of receipt of rent to the tune of Rs. 5,000/- per month is a forged document and, therefore, could not have been taken on record under Order VII Rule 14(3) of CPC. Learned counsel for the petitioner further contends that order impugned is contrary to provisions of Order VII Rule 14(3) of CPC.

As regards application under Order VII Rule 14(3) of CPC, it is seen from record that plaintiff contended that oral tenancy was arrived at between the parties for rent of Rs. 10,000/- per month. On the other hand, tenant /petitioner has averred before the Court that initially the tenancy was for rent of Rs. 2,000/- per month which is presently enhanced to Rs. 3,000/- per month. However, plaintiff/landlord obtained certain documents under Right to Information Act. These documents included registration certificate of the firm owned by the tenant which was being run in the tenanted shop and also other connected documents including the application made by the tenant for obtaining the said registration certificate which was accompanied by rent receipt vouching for the fact that tenancy was of Rs. 5,000/- per month.

The trial court has allowed this application by treating the documents sought to be produced by the landlord since the same had bearing upon the issue involved in the case. No illegality or irregularity can be found in this finding of the trial court by allowing the application for production of documents applied for by the landlord/respondent.

As regards other application under section 13(2) of Act of 1961 is concerned, it is seen from the record that claim of the landlord was that provisional rent of Rs. 10,000/- per month ought to be fixed which was disbelieved by the trial court, in the absence of any documentary evidence in that regard. On the other hand, tenant/defendant admitted that tenancy was for Rs. 3,000/- per month. The trial court further found that one of the document taken on record under Order VII Rule 14(3) of CPC, the application filed by the landlord, was a rent receipt accompanying this application of the tenant made for obtaining registration certificate of his firm whose business was being run in the tenanted shop. This rent receipt shows that rent of Rs. 5,000/- per month was being paid by tenant to the landlord. The trial court on the basis of this prima facie evidence exercised its discretionary powers under section 13(2) of Act of 1961 fixed Rs. 5,000/- per month as provisional rent w.e.f. October, 2011.

Considering the material placed on record and the submission made by learned counsel for the rival parties, this Court is of the considered view that dispute of fixing provisional rent of Rs. 5,000/- per month has been arrived at on reasonable basis which is founded upon cogent prima facie evidence especially the rent receipt of Rs. 5,000/- which is a document found annexed with application made by the tenant for registration of his firm.

Thus prima facie decision of the trial court on arriving at quantum of provisional rent as Rs. 5,000/- per month cannot be found fault with, especially in the limited supervisory jurisdiction of this Court in the absence of trial court having committed any transgression of its power prescribed by law in that regard.

At this juncture, it is pertinent to consider the other ground raised by learned counsel for the petitioner/tenant that provisional rent u/S 13(2) of Act of 1961 could not have been fixed retrospectively i.e. w.e.f. October, 2011.

The trial court by allowing the application u/S 13(2) of Act of 1961 has fixed the provisional rent @ Rs. 5,000/- and has directed the tenant / defendant to deposit the same with the Court w.e.f. October, 2011 after appropriating the rent already deposited. Further directions have been issued that the tenant / defendant should continue paying rent to the landlord prospectively at the said rate on 15th of every month.

Section 13(2) of Act of 1961 is invokable when dispute exists regarding amount of rent payable by the tenant during pendency of suit or appeal.

The Apex Court in the case of Jamnalal and Others Vs. Radheshyam, has authoritatively held that the term "amount of rent" in section 13(2) of Act of 1961 includes within its ambit the quantum of arrears as well as rate of rent.

Thus the Court is vested with the power to fix "reasonable provisional rent" in relation to the accommodation in question. This reasonable provisional rent is relatable to the rent contemplated in sub section (1) of section 13 of Act of 1961. Thus section 13(2) of Act of 1961 makes it incumbent upon the Court to derive strength from section 13(1) of Act of 1961 for the purpose of computing exact quantum of arrears of reasonable provisional rent.

For convenience and ready reference provisions of section 13(1) and 13(2) of Act of 1961 are reproduced herein below:-

When tenant can get benefit of protection against eviction :- (1) On a suit or any other proceeding being instituted by a landlord on any of the grounds referred to in section 12 or in any appeal or any other proceeding by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be.

(2) If in any suit or proceeding referred to in sub section (I) there is any dispute as to the amount of rent payable by the tenant, the Court shall, on a plea made either by landlord or tenant in that behalf which shall be taken at the earliest opportunity during such suit or proceeding, fix a reasonable provisional rent, in relation to the accommodation, to be deposited or paid in accordance with the provisions of sub-section (i) and no Court shall, save for reasons to be recorded in writing, entertain any plea on this account at any subsequent stage.

(emphasis supplied)

Bare perusal of terminology employed in section 13(1) of Act of 1961 elucidates especially the under lined portion, that to arrive at the quantum of reasonable provisional rent u/S 13(2) of Act of 1961 two different periods in time are provided to be taken into account which are as follows:-

(i) The period for which the tenant has already defaulted in depositing the rent, and;

(ii) the period subsequent to the above period till the end of the month previous to that in which the deposit or payment is made.

Thus while computing reasonable provisional rent u/s 13(2) of Act of 1961 comprises of the calculation of the aforesaid two different periods are to be kept in mind. First being the previous period which relates to the events which have already taken place till termination of tenancy, while the second period is the period subsequent thereto till the tenant deposits the total amount of reasonable provisional rent fixed by the Court. Therefore, "reasonable provisional rent" includes retrospective as well as prospective element.

On the basis of above said anvil of interpretation of sections 13(1) and 13(2) of Act of 1961, it does not appear that the trial court has committed any error of jurisdiction to pass the impugned order which is accordingly upheld.

Accordingly, this petition deserves to be and is therefore, dismissed.