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2005 DIGILAW 1944 (RAJ)

Sadhna Kabra v. Sushila Devi

2005-07-28

J.R.GOYAL

body2005
Judgment J.R. Goyal, J.-This appeal has been listed in the category of admission but with consent of learned Counsel for both the parties, the appeal has been heard and is being disposed of finally at this stage. 2. This appeal is directed against the order dated 11.03.2003 passed by Additional District Judge No. 2, Jaipur City, Jaipur in a suit for rent and eviction bearing No. 66/2002 whereby the provisional rent of Rs. 3,575/-under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Act of 1950) was determined. 3. Heard learned Counsel for the parties and perused the impugned Judgment and other material available on record. It has been contended on behalf of the appellant-defendant that premises including two rooms, kitchen, latrine, bathroom and open land-55ft.x30ft at plot No.1, Raghusheel Niketan, Sidharth Colony, Opposite Police Station, Ajmer Road, Jaipur was given on rent at the monthly rent of Rs. 1500/-to the appellant-defendant in the month of May, 1987 and thereafter rent was increased to the tune of Rs. 3575/-per month from October, 1996, but in the mid night of 10.04.2000 dishonestly and mala fidely boundary wall was damaged by the respondent-plaintiff in the garb of encroachment removal operation by J.D.A. Municipal Corporation, Jaipur and thereby marbles slabs which were stored in the open place were substantially damaged. On this, suit for injunction was filed by the appellant before the Civil Judge, Jr. Div., in which firstly order of status quo was passed, thereafter, on rejection of the injunction petition appeal was preferred in which mandatory form of injunction was ordered by Additional District Judge No. 5, Jaipur City, Jaipur but thereafter also the appellant was prevented from using the open land, thus, in view of the matter when substantial portion of the rented premises is not being allowed to be used by the respondent-plaintiffs, agreed rent for the entire premises should not have been the basis for determining the provisional rent. It has also been contended that in such a situation doctrine of suspension of rent should have been applied, in the alternate when appellant-defendant was deprived to use substantial portion of the rented premises then on the basis of apportionment of the rent, provisional rent ought to have been determined. It has also been contended that in such a situation doctrine of suspension of rent should have been applied, in the alternate when appellant-defendant was deprived to use substantial portion of the rented premises then on the basis of apportionment of the rent, provisional rent ought to have been determined. In support of the contentions learned Counsel relied on the Judgment delivered in the case of Surendra Nath Bibra vs. Stephen Court Ltd., reported in AIR 1966 Supreme Court 1361, wherein Small Cause Court found that the defendant had not been put into possession of one of the three bed-rooms. Considering this factual position Honble Supreme Court ordered for proportionate rent to be paid to the landlord. He also placed reliance on Nirmalendu Basu & Ors. vs. Smt. Nilima Chatterjee, reported in AIR 1975 Calcutta 418, wherein while deciding this case on merits after recording the evidence, it was found that tenant was dispossessed from the substantial part of the leased property by the landlord and was deprived from the benefit or use of such property. In view of these facts, it was held that tenant so dispossessed shall be entitled to suspension of the entire rent if , he so likes so long as he does not get back the portion from which he is dispossessed. 4. Learned Counsel for the respondent-plaintiffs contended that disputed house comprising of two rooms, kitchen, latrine and bathroom was given on rent to the appellant-defendant in the month of May, 1987 at monthly rent of Rs. 1,500/-and thereafter the rent was enhanced to the tune of Rs. 3,575/-per month from October, 1996. It has also been contended that open portion was never the part of rented premises, thus, the appellant had no right to use the open place in question. It has also been contended that some part of the boundary wall was damaged during the encroachment removal operation by the J.D.A. which was got repaired by the respondent-plaintiffs. It has also been contended that appellant filed a suit for injunction before the Civil Court which was dismissed but later on an injunction of removing the stones from the open place was ordered by the First Appellate Court which was stayed by the High Court. It has also been contended that on the basis of agreed and last paid rent learned Court below determined the provisional rent which is just and proper. 5. It has also been contended that on the basis of agreed and last paid rent learned Court below determined the provisional rent which is just and proper. 5. I have considered the rival contentions advanced on behalf of the parties. It is not disputed that appellant is the tenant of the respondents and rent has been enhanced to the tune of Rs. 3,575/-from the month of October, 1996. It is also not the matter of controversy that from February, 2000 the rent is not being paid. The controversy in between the parties is whether open place adjacent to the constructed portion is also a part of the tenancy. It is significant to note that tenancy commenced from May, 1987 but no rent note was even executed. Now this controversy rests on the evidence to be led by the parties. In these circumstances, it would not be appropriate to appreciate the arguments advanced before me by learned Counsel for the parties on merits as also my findings may affect the case of either party. I am of the opinion that the learned Court below was within its jurisdiction to determine the provisional rent under Section 13(3) of the Act of 1950 on the basis of agreed and last paid rent. Determination of the rent which is provisional in nature does not finally determine the rights of the parties and such provisional rent shall ultimately be subject to the final verdict of the Court while deciding the suit as has also been provided under Section 13(7) of the Act of 1950. 6. In view of the above discussion, the appeal has no merit and the same is hereby dismissed accordingly.