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2002 DIGILAW 749 (RAJ)

Shantilal v. Chhagan Lal

2002-04-10

S.K.KESHOTE

body2002
JUDGMENT 1. :- Both the revision petitions arises from two different suits, but the plaintiffs in these two suits are common though the defendants are different persons, but the points involved for consideration of this Court in these matters are identical and as such the same are taken up together for hearing and are being decided by this common order. 2. The facts of these cases are taken for deciding these revision petitions from S.B. Civil Revision Petition No. 1599/99. 3. The plaintiff petitioner filed a suit for eviction of the defendant non-petitioners No. 1 from the suit shop on the ground of default in payment of rent. Other grounds for eviction have also been taken i.e. reasonable and bonafide necessity of the suit premises and the material alteration made in the premises. The defendant non-petitioners have come up with the case that though originally the premises were taken on rent, but the plaintiff petitioner on 9.10.1993 executed an agreement to sale the suit premises or tenanted premises in favour of defendant non-petitioner No. 2. The defendant No. 1 has handed over the possession to the defendant No. 2. The relation-ship of landlord and tenant has come to an end. Learned trial Court under its order dated 19.8.1998 held that the plaintiff petitioner has already entered into an agreement to sale with defendant non-petitioner No. 2 and as such rent could not be determined. Appeal has been filed by the plaintiff petitioner which came to be rejected by the appellate Court under order dated 3.8.1999, hence this revision petition. 4. Learned counsel for the plaintiff petitioner submitted that the execution of the alleged agreement to sale the tenanted premises has been denied by the plaintiff petitioner and as such it could not have been taken into consideration to the extent of declining to determine the provisional rent. It has next been contended by the learned counsel for the plaintiff petitioner that the agreement to sale otherwise also does not pass right, title or interest in the suit premises in favour of alleged vendee. So long as the agreement to sale is not finalised and culminated in the sale-deed, the tenant continues to be the tenant of the plaintiff-petitioner and the rent has to be determined under Section 13(3) of the Act. So long as the agreement to sale is not finalised and culminated in the sale-deed, the tenant continues to be the tenant of the plaintiff-petitioner and the rent has to be determined under Section 13(3) of the Act. Lastly, it is contended that for determination of the rent under Section 13(3) of the Act, the Court is not required to go on all these questions of fact. It is a provisional determination of rent and it is for the benefit of the tenant. If he (tenant) considers that the relationship of landlord and tenant has come to an end, he may not deposit the rent and face the consequences. 5. On the other hand learned counsel for the defendant respondent No. 2 contended that under Section 13(3) of the Act before the Court to determine the rent has to go on the question of relationship of landlord and tenant and on being satisfied that no such relationship exists, the Courts are perfectly legal and justified to decline to make provisional determination of the rent. 6. In has next been contended that both the Courts have concurrently held that the relation of landlord and tenant does not exist between the parties and declined to determine the rent under Section 13(3) of the Act, this Court may not interfere in the matter. 7. Having heard learned counsel for the parties and perusing the orders of the Courts below, I am satisfied that the trial Court cannot decline to determine the provisional rent under Section 13(3) of the Act in a suit filed on the ground of default in payment of rent. Section 54 of the Transfer of Property Act is very clear that merely by execution of the agreement to sale no title, right or interest in the suit premises passes to the alleged vendee. 8. Both the Courts below on the basis of the agreement to sale and further that full consideration thereof has not been paid has taken it to be the case where relation of landlord and tenant comes to an end between the parties which is clearly erroneous on the face of it. The plaintiff petitioner has disputed this agreement. This question has to be gone into in the suit. The plaintiff petitioner has disputed this agreement. This question has to be gone into in the suit. But so far the sale-deed is not executed, it cannot be taken as if the plaintiff petitioner even where agreement is to be taken to have been prima facie proved has been divested of right, title and interest in the disputed premises. Be that as it may, otherwise also under Section 13(3) of the Act only provisional determination of rent is made. This provision is for the benefit of tenant with respect to the eviction on the ground of default in payment of rent. In case ultimately the default is proved and benefit of this provision is taken then the defendant tenant cannot be evicted from the suit premises on this ground. In view of this provision, if the defendant tenant is confident that the relationship of tenant and landlord does not exist between the parties, instead of contesting this application, he would have said that the Court may pass the order and he may not comply with it and face the consequences. While considering the application under Section 13(3) of the Act, the Court has not to go on this point in deep. In the eviction suit where ground of default is there, the rule is to determine the rent and all other disputes and differences are to be left for decision in the suit. This provision is for the benefit of the tenant. He may or may not comply with the order passed under Section 13(3) of the Act. In a given case where the Court is prima facie satisfied that no relationship of landlord and tenant exists between the parties, the Court is not to decline to determine the rent but to safeguard and protect the tenant an order may be passed that he may comply with the order made by the Court under Section 13(3) of the Act and further to go on depositing regularly monthly rent in Court and landlord may not be permitted to withdraw this amount. But this blanket order passed by the Courts below not to determine the rent under Section 13(3) of the Act in the manner in the matter cannot be allowed to stand. The Court in such matter to keep in mind and to proceed to balance the equities between the parties rather to go one sided only. But this blanket order passed by the Courts below not to determine the rent under Section 13(3) of the Act in the manner in the matter cannot be allowed to stand. The Court in such matter to keep in mind and to proceed to balance the equities between the parties rather to go one sided only. In case the orders of the Courts below are allowed to stand, it will certainly occasion failure of justice to the plaintiff petitioner. 9. The revision petitions succeed and the same are allowed. The learned trial Court is directed to determine provisional rent under Section 13(3) of the Act within a period of one month from the date of receipt of a certified copy of this order. However, the trial Court is free to consider and to balance the equities between the parties may order for deposit of the amount of rent determined every month regularly in the Court and not to permit the withdrawal thereof by the plaintiff-petitioner. The deposit shall be subject to the final decision in the suit. No order as to costs.Revision Petition Allowed. *******