Naresh Kumar And Others vs Mahendra Kumar Jain And Others

Atul Sreedharan, J

The present petitions have been filed by parties who are aggrieved by the order dated 27.12.2021 passed by the Ld. Civil Judge, Bhopal whereby the applications filed by both the tenant and the landlord gave rise to the present case. M.P. No. 235/2022 has been filed by the tenant and M.P. No. 479/2022 has been filed by the landlord. The tenant is aggrieved by the impugned order that provisional rent that has been fixed by the Ld. Trial Court under Section 13(2) of the M.P. Accommodation Control Act of 1961 (hereinafter referred to the Act of 1961) has been arrived at arbitrarily, without due application of mind or without any adherence to the procedure.

The Ld. Trial Court arrived at the provisional rent to be paid by the petitioner quantified at Rs.4,000/- per month. Section 13(2) of the Act of 1961 reads as under :-

(2) If in any suit or proceeding referred to in sub-Section

(1), 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 (1) and no Court shall, save for reasons to be recorded in writing, entertain any plea on this account at any subsequent stage].

A bare reading of the said provision reflects that where there is a dispute regarding the amount of rent which is payable by the tenant, the Court on a plea, either by the landlord or the tenant, taken at the earliest opportunity to the proceedings, is authorised to fix a “ reasonable provisional rent” in relation to the accommodation to be deposited or paid in accordance with the provisions of 13(1) of the Act of 1961.

Ld. counsel for the petitioner has submitted that the phrase “ reasonable provisional rent” would require the application of mind and an enquiry, though summary in nature, which must be embarked upon by the Ld. Trial Court in order to objectively access the quantum of provisional rent. In his endeavour to strengthen his submission, Ld. counsel for the petitioner has relied upon the judgment of the Division Bench of this Court in Firm Ganeshram Harvilas, Morena Vs. Ramchandra Rao reported in 1972 ILR 1056. In the said judgment, the Division Bench of this Court has held that the enquiry must be preliminary and immediate and it’s disposal as expeditious as possible and that the same must be summary in nature.

As regards the extent and scope of such an enquiry, the Ld. Division Bench held that it would depend upon the nature of the dispute and the material available before the Court on the date on which it is called upon to make such an order under Section 13(2) of the Act of 1961. By illustration, the Division Bench held that documents from which a reasonable provisional rent may be assessed could be a rent note, receipts of rent paid or the rent due from the tenant. It further held that even documentary material present at the stage before the Court may be enough to guide the Ld. Trial Court in passing an order but held categorically that at this stage, when the Court is called upon to fix provisional rent, it should not enter into a full-dressed trial or any elaborate enquiry. Thereafter, it concludes on page No. 1066 that every kind of dispute with regard to the amount of rent payable by the tenant is within Section 13(2) and it may be raised either by the landlord or the tenant and the attention of the Court must be invited specifically to the said dispute and thereafter, the Court must be requested to fix a reasonable provisional rent. It further held that as soon as such a dispute under Sub- Section 2 is raised, the Court must fix a reasonable provisional rent expeditiously as far as practicable and the same cannot be deferred . It further held that as the provisional rent has to be reasonable, the Court has to apply its mind and satisfy itself prima facie what provisional rent would be reasonable. It further held that the enquiry will be summary in nature.

The Ld. DB further held that if the provisional rent is not fixed expeditiously so as to enable the tenant to deposit or pay the arrears of rent within one month from the service of a writ of summonses on him, the court will only be exercising its discretion judicially if the time under sub-section (1) of section 13 is extended suitably.

Section 13(2), as stated earlier herein above, does not prescribe any procedure. But, however, sufficient guidance is given in the judgment of the Ld. Division Bench of this court, which has been referred and discussed herein above. This court cannot lose sight of the fact that it is deciding this petition by exercise of its jurisdiction under Article 227 of the Constitution and, therefore, merely because a better opinion is possible than the one given by the Ld. Trial Court in the impugned order, is inadequate to set aside the impugned order. The reasons that have been given by the Ld. Trial Court have been gone into by this court. On the basis of material that was available before the Ld. Trial Court while deciding the said application under section 13(2) of the Act of 1961, its reasonings are commensurate. It has arrived at the provisional rent fixed at Rs.4,000/- per month inter alia on the basis of the location of the property. The trial court being situated locally where the suit property is located is in a better position to arrive at this finding than any other Court. The fixation of the provisional rent at Rs.4,000/- per month may not be one to which mathematical precision may be accorded to but at the same time the reasonings given therein are extremely plausible and, therefore cannot be said to be arbitrary, unjust, or unconscionable requiring interference of this court. Under the circumstances, this court does not find adequate reason to interfere with the impugned order passed by the Ld. Trial Court dismissing the application of the petitioners in M.P. 235/2022 under section 13(2) of the Act of 1961 and therefore, the petition is dismissed.

M.P. No.479/2022 has been preferred by the landlords who are aggrieved by the dismissal of their applications under section 13(6) of the Act of 1961 whereby they had sought an order striking down the defence of the respondent (tenant) on account of not depositing the rent as required under section 13(1) of the Act of 1961 before the Ld. Trial Court.

Ld. counsel for the petitioners has argued that once the suit was filed by the petitioners, deposit of the rent thereafter before the rent controller under section 25 of the Act of 1961, was a sufficient cause to strike the defence of the respondent. It was submitted before this Court that under section 13(1) of the Act of 1961, deposit of rent after the institution of the suit was to be made in the Trial Court and not before the Rent Controller. In order to buttress his arguments, Ld. counsel for the petitioners has relied upon the judgment of the Supreme Court reported in AIR 1965 SC 1909 (Kaluram Onkarmal and another v. Baidyanath Gorain). In that case, the Supreme Court was examining the amplitude of section 17(1) of the West Bengal Premises Tenancy Act, 1956 which according to the Ld. counsel for the petitioners is in pari materia with section 13(1) of the Act of 1961. According to him, in this judgment the Supreme Court had held that once the suit was filed for eviction, the rent had to be deposited with the trial court or directly paid to the landlord and not deposited before the rent controller under section 22 of that Act which is in pari materia with section 25 of the Act of 1961.

Ld. counsel for the respondent has drawn the attention of this court to the reasonings given by the Ld. Trial Court while dismissing the application under section 13(6) of the Act of 1961 moved by the petitioners herein. The Ld. Trial Court has held that as the process of affixing the provisional rent under section 13(2) of the Act of 1961 was in progress, the requirement to deposit the rent before the court was obviated. It further held that once the provisional rent was assessed at Rs.4,000/- per month and thereafter if the tenant defaults in making payments then in such a situation the petitioners would have the right to file afresh under section 13(6) of the Act of 1961 for striking out the defence of the tenant. It was on that ground that the said application was dismissed.

Once again, this court is unable to hold that the reasonings given by the Ld. Trial Court are unacceptable or arbitrary and deserve to be set aside. Therefore, M.P. No.479/2022 sans merit is also dismissed. However, as the suit before the Ld. Trial Court is pending since the year 2016, it is requested to try and conclude the same as expeditiously as possible. This court makes it absolutely clear that the observations made by this court are only restricted for the purpose of disposing of the present M.Ps before it and the Ld. Trial Court ought not to be influenced by it in any manner while trying the case and that the same should be tried strictly in accordance with law uninfluenced by the observations made in this order on factual and legal aspects.