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2000 DIGILAW 1426 (RAJ)

Laxmi Hardware Store v. Madhu Sudan

2000-12-04

N.P.GUPTA

body2000
JUDGMENT 1. - Pursuant to the order dated 13.11.2000, the revision petition comes up today for final disposal.By the impugned order, the learned trial court has ordered the counter claim filed by the plaintiff non petitioner to be taken on record and fixed the case for framing of amended issues. 2. The brief facts relevant for the present controversy are that on 17.11.1988 the plaintiff non petitioner has filed a suit for eviction inter-alia on the ground of reasonable and bona fide necessity, alleging the agreed rent of the suit premises to be As. 650/- per month. To this suit, the defendant petitioner filed a written statement on 25.7.90 contesting the suit for eviction and also raised a counter claim seeking determination of standard rent of the suit premises. In that counter claim of course it was contended that the standard rent be declared at Rs. 350/- per month. To this counter claim of the petitioner, the plaintiff non petitioner filed a rejoinder on 20.3.1993 denying the counter claim and contended that the agreed rent was voluntarily agreed, and for the circumstances pleaded in the rejoinder it was claimed that the agreed rent is not required to be scaled down. 3. It may be mentioned here that the basis of the counter claim as lodged by the defendant petitioner was Section 6(2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act'. However, thereafter, came to be passed a judgement by a Division Bench of this Court in Khem Chand v. State of Rajasthan reported in 1999(2) All India Rent Control Journal p. 438 , whereby the provisions of Section 6(2) of the Act were struck down as ultravires and unconstitutional. It is after this judgement that the defendant filed application for amendment of written statement cum counter claim, seeking to add para 12 in the written statement, wherein maintaining the counter claim for fixing of Standard Rent, the defendant sought to claim the standard rent on the parameters laid down in Section 6(3) of the Act and of course maintained the claim for the standard rent to be As. 350/- per month. After this amendment, the plaintiff non petitioner sought to file rejoinder and in this rejoinder the plaintiff sought to lodge a counter claim to counter claim, seeking to claim that the standard rent of the premises be fixed at As. 350/- per month. After this amendment, the plaintiff non petitioner sought to file rejoinder and in this rejoinder the plaintiff sought to lodge a counter claim to counter claim, seeking to claim that the standard rent of the premises be fixed at As. 6000/- per month. For this claim, the plaintiff also relied upon the parameters of Section 6(3) of the Act. It is this counter claim of the plaintiff, seeking to claim determination of standard rent Rs. 6000/- per month, which has been taken on record by the impugned order and that precisely is subject matter of controversy in this revision before me. 4. The contention raised by the learned counsel for the petitioner is that according to Order 8 Rule 6-A, the defendant could of course make a counter claim, which the petitioner made, seeking to claim determination of standard rent, but to such counter claim the plaintiff cannot be permitted to lodge a counter claim to such counter claim and therefore, the impugned order is bad. 5. Replying the submission, it was contended on behalf of the non petitioner that according to Sub Rule (2) of Rule 6-A, the counter claim of the defendant is to have the same effect as a cross suit, according to Sub Rule (3) the plaintiff is at liberty to file a written statement in answer to the counter claim of the defendant, and according to Sub Rule (4) the counter claim (of the defendant) is to be treated as a plaint, and is governed by the rules applicable to the plaints, therefore, the plaintiff was very much entitled to file a written statement to the defendant's counter claim, and per force of the language of Order 8 Rule 6-A (1), the plaintiff while filing a written statement to the defendant's counter claim could very well lodge a counter claim and therefore, the learned trial court was right in taking it on record. 6. To support this contention, the learned counsel has placed reliance on a Single Bench judgement of Bombay High Court in The Nav Samaj Ltd., Nagpur v. Shamrao Tukaramji, Patle, reported in AIR 1984 Bombay, p. 23 . 7. Having carefully considered the submissions, and with due respect to the learned Judge, I am not inclined to subscribe to the view taken by the Bombay High Court. 7. Having carefully considered the submissions, and with due respect to the learned Judge, I am not inclined to subscribe to the view taken by the Bombay High Court. The reason given by the Bombay High Court is that, there is no statutory bar in allowing setting up a counter claim by the plaintiff to the counter claim by the defendant. The Bombay High Court has also considered the aspect of Order 2 Rule 2 CPC. 8. In my view the plaintiff cannot be conceded such a right. The provisions of Order 8 Rule 6-A so also Rule 6-G have to be construed in the logical way. If the contention of the plaintiff were to be accepted, it is likely to result into a situation of absurdity, inasmuch as each of the contesting parties, (plaintiff or the defendant) may continue with the successive chain of counter claims by invoking the same analogy of the counter claim being treated to be plaint and being governed by the rules applicable to plaint. In my view the 'Stop' is inherent in the language of Sub Rule (2) of Rule 6-A, when it provides that 'Such counter claim shall have the same effect, as a cross suit so as to enable the Court to pronounce a final judgement in the same suit, both on original claim and on the counter claim. Thus per force of the language of Sub Rule (2), the counter claim is treated to be a cross suit only for the purpose of enabling the Court to pronounce a final judgement in the same suit. Likewise, in my view, the other provisions of Sub Rule (3) and 4) of Rule 6-A, so also provisions of Rule 6-G, are intended only for the purpose of enabling the plaintiff, to file a reply to the counter claim, as of a right, and without depending on the mercy or discretion of the Court, and thereby becoming entitled to contest the counter claim. This provisions are not required to be interpreted in a way so as to confer a further right on the plaintiff to file a counter claim while giving reply to the defendant's counter claim and then, thereby again permitting the defendant to file a yet further counter claim purporting to file reply to the plaintiff's counter claim and so on. 9. 9. Though the above conclusions are enough to decide the present revision as in view of the above, the impugned order suffers from jurisdictional error. However, there is yet another aspect of the matter, namely that the counter claim in the present case lodged by the defendant in the written statement, is to seek determination of standard rent of the suit premises, though on the basis of Section 6(2), thus by amendment, it is sought to be supported on the basis of parameters of Section 6(3) of the Act, but then the fact remains that the counter claim is for determination of standard rent under Section 6. A look at the language of Section 6 of the Act would show that thereunder for invoking the jurisdiction of the Court for fixation of the standard rent all that is required is that the agreed rent should be claimed either to be low (in case the jurisdiction is invoked by the landlord) or excessive (in case the jurisdiction is invoked by the tenant). A bare reading of Sub Section (2) which has been struck down, so also Sub Section (3) does show that once the jurisdiction of the Court is invoked for fixing of the standard rent, the Court has to hold such inquiry as it may consider just and necessary, but then it has to make determination of standard rent for such premises. For making such determination, earlier the Court was to proceed on the parameters laid down in Sub Section (2) which of course has been struck down and therefore, now the Court is to proceed on the parameters laid down in Sub Section (3) and/or Sub Section (4), but then the fact remains that once the jurisdiction is invoked, the Court is to make an inquiry and thereafter has to make determination of the standard rent at such figure at which it arrives at the conclusion of the inquiry. Obviously therefore, in the scheme of Section 6, it is not required of the landlord or the tenant to claim or prove any specific figure of rent to be the desired standard rent. 10. Obviously therefore, in the scheme of Section 6, it is not required of the landlord or the tenant to claim or prove any specific figure of rent to be the desired standard rent. 10. In this view of the matter also, once the jurisdiction of the learned trial court under Section 6 of the Act is invoked by the defendant by filing a counter claim seeking fixation of standard rent of the suit premises, thereafter it is for the learned trial court to hold an inquiry on the question as to what is to be the standard rent to be fixed, and then at the conclusion of the inquiry it is to fix standard rent at such figure at which it arrives at the conclusion of the inquiry irrespective of any named figure having been claimed by either party. Therefore, the filing or exclusion of the counter claim by the plaintiff is practically academic. 11. In view of what I have held above, the frame of issue No. 6 as it exists, also does not appear to be proper and therefore, issue No. 6 is recast as under : " oknxzLr tk;nkn dk ekud fdjk;k D;k gksuk pkfg;s\ " 12. In the result the revision petition is allowed, the impugned order is set aside. The learned court is directed to proceed with the trial of the suit expeditiously as the suit is of the year 1988, and in that trial it is inherent that the trial court should decide the question as to what should be the standard rent. Parties are left to bear their own costs.Revision Allowed. *******