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2006 DIGILAW 445 (RAJ)

Man Mohan Das Mundra v. Shiv Kunwar

2006-02-08

PREM SHANKAR ASOPA

body2006
Judgment Prem Shanker Asopa, J.-That by this writ petition the Petitioner-defendant No. 1 has challenged the order of provisional determination of rent of the premises in dispute under Section 7 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act of 1950) dated 19.07.2004 passed by Additional District Judge No. 6, Jaipur City, Jaipur, to the tune of Rs. 9,269/-p.m. 2. Briefly stated the facts of the case are that one Shri Ishwar Singh executed a lease-deed in favour of Gaura Devi of the premises on 16.03.1977 at the rate of Rs. 1,600/-p.m. 3. The Respondent Nos. 2 and 3 filed a civil suit for partition against Ishwar Singh and a partition decree was passed and the present disputed premises came in the portion of the Respondent Nos. 1, 2 and 3 and the rent of the same was fixed at the rate of Rs. 843.70 paisa. Smt. Gaura Devi died on 23.03.1998 and presently the premises are in possession of Petitioner No. 1 being a son and successor. 4. The Respondent Nos. 1 to 3 filed an application under Section 6 of the Act of 1950 for determination of standard rent. In the said application they have submitted that as the defendant-petitioner is getting Rs. 9,269/-from the other respondents by way of rent on account of further letting out the premises for parking, and the value of the land has been increased from 10 to 12 times. Presently the total value of the land is Rs. 50 lacs. Therefore, the standard rent be fixed at the rate of Rs. 9,269/-p.m. from the date of filing of civil suit. 5. The petitioner defendant has submitted before the trial Court that he is the Trustee of Manmohandas Moondra Trust, and the said Trust is the tenant of plaintiff respondent and the Trust has not been impleaded as a party. He has further taken the ground that he has made many improvements over the plot and whatever he is getting on account of the facility provided to other respondents, that is not the rent. Therefore, the same is not having any relevancy for the purposes of determination of standard rent. 6. He has further taken the ground that he has made many improvements over the plot and whatever he is getting on account of the facility provided to other respondents, that is not the rent. Therefore, the same is not having any relevancy for the purposes of determination of standard rent. 6. The trial Court has proceeded to determine provisional rent under Section 7 of the Rent Act, 1950 and has considered the fact that from the material on record, more particularly Exhibit-3, and Exhibit-4, receipts of the rent given to Mohandas Moondra, the petitioner-defendant, are in the name of Man Mohandas Moondra, in the capacity of legal representative of late Gaura Devi. Therefore, for the purposes of determination of the rent, it would be justified to hold the petitioner as tenant. 7. As regards the determination of the provisional rent is concerned, the Court has considered the admitted total amount of Rs. 9,269/-per month received by petitioner-defendant from the other defendants, who are the sub-tenants and fixed the same as provisional rent. 8. The submission of the Counsel for the petitioner is that the rent/amount received by the petitioner defendant on account of facility given to him after development of the plot cannot be a relevant consideration for provisional determination of the rent. The Court has acted contrary to the provisions of Sections 6(3) and 7. Therefore, the order of the trial Court is liable to be set-aside. In support of his submissions the Counsel for the petitioner has cited the Judgment reported in Malpe Vishwannath Acharya & Ors. vs. State of Maharastra & Anr., 1999 (2) RLW 254 (SC). 9. The Counsel for the respondents submits that the mother of the petitioner who was given the premises on lease, which are now being possessed by the petitioner-defendant is getting Rs. 9,269/-as rent by letting out the same to other defendants for parking place. Therefore, the said circumstance is the most relevant circumstance for determination of the provisional rent and the trial Court has rightly considered the same. In support of his submissions, he has cited the Judgment of this Court reported in Mahesh Bhatiya & Ors. vs. Saraogi Mansion Estate Pvt. Ltd. & Ors., 2004 (3) DNJ 1047 (Raj.) and the Judgment passed in S.B. Civil Misc. In support of his submissions, he has cited the Judgment of this Court reported in Mahesh Bhatiya & Ors. vs. Saraogi Mansion Estate Pvt. Ltd. & Ors., 2004 (3) DNJ 1047 (Raj.) and the Judgment passed in S.B. Civil Misc. Appeal No. 2075/2004, Vinod Kumar Sharma vs. Sajjanmal Lodha decided on 21.04.2005 and Sohan Lal vs. Badri Narain & Ors., reported in 2000 Western Law Cases (UC) 85 (Raj), wherein it has been held that rent provisionally determined is subject to final determination of rent under Section 6 of the Act, and no interference is called for. 10. I have gone through the record of the writ petition, considered the rival submissions of the parties. 11. The provisions of Sections 6(1) and 6 (3) of the Act of 1950 are as follow:-“Section 6-Fixation of standard rent.-(1) Where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be (low or) excessive, the landlord or the tenant may institute a suit in the lowest Court of competent jurisdiction for fixation of standard rent for any premises. (3) Wherefor any reason it is not possible to determine the standard rent of any premises on the principles set out in Sub-section (2); the Court shall determine such rent, having due regard to the prevailing rent or standard rent for similar premises in the same locality the various amenities (such as electricity, water connection, sanitary fittings, and the like) attached to the premises, the cost of construction, maintenance and repairs thereof , the special reasons, if any; proved by the plaintiff and other relevant considerations.” 12. Sub-section (2) has been struck down by the Division Bench of this Court in Khem Chand vs. State of Rajasthan & Ors., 1999 (1) RLR 694 . Therefore, the same is not being reproduced. 13. The relevant provisions of Sections 7(1) and 7(5) are as follow:-“Section 7. Fixation of provisional rent.-(1) Upon the institution of a suit under Section 6, the Court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force till a decree fixing the standard rent, therefore, is finally made in such suits. 7(5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed.” 14. 7(5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed.” 14. The Judgment of Honble Supreme Court in Malpe Vishwanath (Supra), cited by Counsel for the petitioner is on fixation of standard rent of Bombay Rent Control Act. By the aforesaid Judgment , the provisions relating to the fixation of the standard rent have been said to be no longer reasonable. The said Judgment is not on the issue of the determination of provisional rent. .15. Per contra the Counsel for the respondent has cited Judgment of this Court reported in Mahesh Bhartiya (Supra), wherein it has been held that as per Sub-section (3) of Section 6, a standard rent is to be determined after having due regard to the prevailing rent or standard rent for similar premises in the same locality and Sub-section (1) of Section 7 of the Act provides fixation of provisional rent upon institution of a suit under Section 6, for fixing provisional rent, the Court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force, till a decree fixing the standard rent, therefore, is finally made in such suits. 16. The relevant portion of Para No. 5 and full Paragraph (6) reads as under:-“(5) Therefore, standard rent can now be fixed in view of the provisions of Sub-section (3) of Section 6 of the Act. According to Sub-section (3) of Section 6 the Court shall determine standard rent having due regard to the prevailing rent or standard rent, for similar premises in the same locality, the various amenities such as electricity, water connection, sanitary fittings and the like, the cost of construction, maintenance and repairs thereof and for other relevant considerations. Sub-section (1) of Section 7 of the Act provides for fixation of provisional rent upon the institution of a suit under Section 6. For fixing provisional rent, the Court shall forthwith make an order fixing in a summary manner provisional rent and such rent shall remain in force till a decree fixing the standard rent is finally made in such suits.” 6. For fixing provisional rent, the Court shall forthwith make an order fixing in a summary manner provisional rent and such rent shall remain in force till a decree fixing the standard rent is finally made in such suits.” 6. In view of the entire discussion made herein above, I find no merit to interfere with the fixation of the provisional rent and the provisional rent shall ultimately be subject to the final determination of the standard rent to be fixed by the Court under Section 6 of the Act.” 17. In two other Judgment s Vinod Kumar Sharma vs. Sajjanmal Lodha, S.B. Civil Misc. Appeal No. 2075/2004 decided on 21.04.2005 and Sohan Lal vs. Badri Narain & Ors., reported in 2000 WLC (UC) 85 (Raj.), the Court has not interfered with the determination of provisional rent as the same is subject to final determination. 18. In my view, in this particular case the same premises have been let out by the Defendant No. 1 to other defendants for parking. Therefore, for the purposes of fixing the provisional rent the amount received by him from the other defendants is the most relevant circumstance and the determination of the provisional rent by the trial Court is just and legal which is subject to final determination under Sub-section 5 of the Section 7. Thus, the trial Court has not committed any kind of error while passing the impugned order. Therefore, no interference is called for under Article 227 of the Constitution of India. 19. Accordingly the writ petition fails and is dismissed alongwith stay application.