Narain Lal Nirjhar and Others vs Chhagan Lal (dead) through his L.Rs..

Hon''ble Ms. Justice Bela M. Trivedi

The present appeal has been filed by the appellants-defendants u/s 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as the "said Act") challenging the order dated 15.4.2011 passed by the Addl. District Judge, Fast Track, Bandikui, Dausa (hereinafter referred as the "trial court") in Civil Suit No. 32 of 2000, whereby the trial court has determined the provisional rent of the suit premises at the rate of Rs. 1500/- per month u/s 13(3) of the said Act. It has been sought to be submitted by leaned Sr. counsel Mr. JP Goyal for the appellants that the impugned order passed by the trial court suffers from illegality inasmuch as the trial court has determined the rent at the rate of Rs. 1500/- per month without any material on record. According to him, in absence of any material on record, the trial court was expected to direct the parties to lead evidence under Order X of CPC and then determine the provisional rent. Mr. Goyal also submitted that the appellants-defendants had made the counter claim for fixation of the standard rent u/s 6 of the said Act and the trial court without determining the provisional rent u/s 7 of the said Act proceeded to determine the provisional rent u/s 13(3) of the said Act, which is not permissible. Mr. Goyal further submitted that not only the provisional rent fixed by the trial court is on very higher side but the calculation of the rent at the rate of Rs. 1500/- per month from 1.10.1997 also is illegal inasmuch as the appellants could not be directed to deposit the arrears of rent for more than three years prior to the filing of the suit.

Learned Counsel Mr. Saransh Saini for the respondent-plaintiff however submitted that the trial court has decided only the provisional rent considering the prima facie evidence on record and the said amount of provisional rent shall be adjusted against the rent that may be finally determined by the trial court in view of section 13(8) of the said Act. Mr. Saini has fairly admitted that the appellants are required to deposit the rent from the date i.e. 13.11.1997 and not from the date of 1.10.1997, as the suit was filed on 13.11.2000.

Having regard to the submissions made by Learned Counsel for the parties and to the impugned order passed by the trial court, it appears that the respondent-plaintiff has filed the suit against the appellants-defendants seeking their eviction from the suit premises on various grounds including on the ground of having committed default in making payment of rent. It has been alleged in the suit by the respondent-plaintiff that the last paid rent was Rs. 1500/- per month by the appellants-defendants and that the appellants defendants had failed to pay the same since 1.10.1997. The appellants-defendants in their written statements have denied the said allegations and further submitted that the last paid rent was only Rs. 150/-per month and not Rs. 1500/- per month. The appellants-defendants has also made counter claim for fixation of the standard rent of the suit premises u/s 6 of the said Act. The trial court considering the material on record and after hearing the Learned Counsel for the parties determined the provisional rent u/s 13 (3) of the said Act, at the rate of Rs. 1500/- per month and directed the appellants-defendants to deposit the entire arrears of rent at the said rate from 1.10.1997 with interest at the rate of 6% per annum.

In the instant case, it appears that it is not disputed that the appellants are the tenants of the respondents in respect of the suit premises and that there was no written rent note executed between the parties. It also appears that neither the appellants nor the respondents had produced any documentary evidence to show as to what was the last rent paid by the appellants. Under the circumstances, the trial court has taken into consideration the rent notes and other documents of other premises which were produced on record and decided the provisional rent at the rate of Rs. 1500/- per month. It is true that in absence of any material on record to show as to what was the last paid rent in respect of the suit premises, the trial court should record evidence under Order X of CPC. However, if such procedure was not followed, it cannot be said that there was material irregularity or illegality committed by the trial court.

It is also pertinent to note that the rent fixed by the trial court is only provisional rent u/s 13(3) of the said Act and such rent would be adjusted against the rent that may be finally decided in the suit, as contemplated u/s 13(8) of the said Act. As such, there being no gross irregularly or illegality much less perversity pointed out in the impugned order, this Court is not inclined to interfere with the same. However, as rightly pointed out by the learned Sr. counsel Mr. Goyal, the trial court could not have directed the appellants to pay arrears of rent for the period of more three years prior to filing of the suit. The said position has not been disputed by the Learned Counsel for the respondent. Under the circumstances, the impugned order is required to be modified to the extent that the appellants-defendants shall deposit the arrears of rent at the rate of Rs. 1500/- per month towards the provisional rent from 13.11.1997 and not from 1.10.1997 with interest at the rate of Rs. 6% per annum. It is also clarified that if the provisional rent fixed by the trial court is found to be excessive at the time of final decision of the suit, the respondent-plaintiff shall refund the amount which is found to be excessive, with interest at the rate of Rs. 6% per annum to the appellants-defendants. The appellants shall deposit the entire arrears as directed within a period of two months from today i.e. on or before 7.11.2012 before the trial court. Appeal stands partly allowed accordingly.