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Madhya Pradesh High Court · body

2018 DIGILAW 536 (MP)

Kajal Kataria (Smt. ) v. Deepak Arora

2018-06-18

ANAND PATHAK

body2018
ORDER 1. The present petition under Article 227 of the Constitution of India is preferred by the petitioner/defendant/tenant being aggrieved by order dated 4.4.2018 passed by 12th Civil Judge, Class-I, Gwalior in Civil Suit No. 26-A/2016; whereby, the application under section 13(2) of the M.P. Accommodation Control Act, 1961 preferred at the instance of respondent/plaintiff/landlord has been allowed and provisional rent has been fixed at Rs. 12,000/- per month. 2. Precisely stated facts of the case are that respondent/landlord has instituted a suit for eviction and recovery of arrears of rent against the petitioner/tenant. Suit was filed by the respondent on the allegation that disputed property/shop was rented out to the petitioner at monthly rent of Rs. 12,000/- on the basis of lease deed dated 31.5.2011 and petitioner has not paid any amount towards the rent and the disputed shop is required by the respondent for starting business of his son . The allegations of subletting of the shop were also levelled. 3. Petitioner/tenant denied the allegations by filing written statement. 4. It appears that trial Court vide order dated 9.9.2015 had fixed the provisional rent at Rs. 12,000/- per month. Same was challenged by the respondent before this Court by way of filing Writ Petition No. 6750/2015, which was disposed of vide order dated 1.12.2017 with a direction to the trial Court to take into consideration the lease deed dated 31.5.2011 and objection raised by the petitioner in this regard and thereafter, if required conduct an enquiry as per section 13(2) of the M.P. Accommodation Control Act, 1961 (for short “Act of 1961”) and thereafter fix the provisional rent. 5. It is the submission of the petitioner that trial Court after order dated 1.12.2017 conducted enquiry with regard to veracity of competing claim for fixing the provisional rent. 6. According to learned counsel appearing for the petitioner the order impugned is against the order dated 1.12.2017 passed by this Court whereby clear directions have been given to take into consideration the lease deed and objections of the petitioner and if objections are found tenable then conduct an enquiry as provided under section 13(2) of the Act of 1961. Thus, the enquiry held by the Court was not an enquiry under section 13(2) of the Act of 1961 as directed by this Court. Thus, the enquiry held by the Court was not an enquiry under section 13(2) of the Act of 1961 as directed by this Court. It is further submitted that trial Court failed to appreciate that petitioner is disputing the amount stipulated in the lease deed from very beginning. The provisional rent has to be fixed at a reasonable rate. The Tribunal after prima facie accepting the existence of dispute as to amount of rent, instead of conducting enquiry regarding reasonable provisional rent of the premises under section 13(2) of the Act of 1961, proceeded to enquire into the veracity of both the competing claims regarding the agreed rate of rent and decided that rent of Rs. 12,000/- per month as the agreed rent. 7. Learned counsel for the respondent opposed the prayer made by the petitioner and submits that the lease agreement itself indicates that the rate of rent of the premises would be Rs. 12,000/- per month and, therefore, trial Court has rightly fixed the provisional rent at Rs. 12,000/- per month. There is no dispute in respect of rent. A gap crept into para 3 of the lease agreement dated 31.5.2011 is not in respect of rent but is in respect of maintenance amount and same is different from the rent, therefore, trial Court did not err in passing the impugned order after considering the fact situation and the controversy after due enquiry. He prayed for dismissal of the writ petition. 8. Heard learned counsel for the parties. 9. In the earlier round of litigation at the instance of respondent/landlord/plaintiff this Court passed the following directions : “In view of the aforesaid submissions and the law on the issue, it is apparent that trial Court could not have fixed the provisions rent without embarking an enquiry as provided under section 13(2) of the Accommodation Control Act, and therefore, the impugned order is quashed. It is directed that trial Court shall take into consideration the lease deed dated 31.5.2011 and also objection raised by the tenant in regard to such lease deed and if such objections are prima facie found to be tenable, then shall embark upon to conduct an enquiry as stipulated under the provisions of section 13(2) of the Accommodation Control Act and then fix the provisional rent. With the aforesaid, this petition is disposed of.” 10. With the aforesaid, this petition is disposed of.” 10. In pursuance to said order, trial Court considered the rival contentions as well as lease deed dated 31.5.2011. The impugned order reflects that trial Court has considered the aspect that petitioner has accepted his signature over the lease deed, therefore, he accepts the execution of the said lease deed. The nature of such lease deed is to be decided ultimately through evidence because according to petitioner the said lease deed was virtually the sale agreement. 11. Trial Court after considering the fact that in the lease deed, petitioner has categorically admitted the payment of Rs. 12,000/- as rent of the disputed shop. Respondent/plaintiff has filed his affidavit dated 9.9.2015 alongwith the lease deed. Since the lease deed itself contains reference of payment of rent to be paid by the tenant of Rs. 12,000/- per month and execution of the said agreement is accepted by the tenant, therefore, at this juncture for fixing of provisional rent trial Court has adopted right approach in this respect because enquiry under section 13(2) of the Act of 1961 is of a summary nature and that too by affidavits. It is not obligatory to record the oral evidence to supplement the affidavits filed by the parties. This is an enquiry of a summary nature and it is for the party to file the necessary affidavits. In a summary enquiry the parties are not permitted to delay the proceedings, which need immediate disposal according to the desire of the provisions of the Act.(See: Ramnath Mahore v. Dr. Rakesh Kumar Gangil, 1985 MPRCJ 85). 12. The most striking feature of this controversy is the lease deed dated 31.5.2011. Once the petitioner accepted the execution of lease deed then he cannot disown his liability to pay rent reserved under the deed on the ground that the lease deed was obtained by misrepresentation, mistake or collusion. Where a lease is created by a written document between the parties mentioning the rate of rent, a Court trying a suit for ejectment of a tenant cannot fix provisional rent under section 13(2) of the Act of 1961 at a rate lower than the one mentioned in the document. This would amounting the incorporation of subjectivity while replacing the document which provides the exact amount. This would amounting the incorporation of subjectivity while replacing the document which provides the exact amount. This is provisional rent and therefore, no justification exists for fixing the provisional rent of suit shop at a reduced rate. (See: Abhilasha Aankansha Welfare Trust and ors. v. State of M.P. and ors. [1985 MPRCJ 218 (N-105)]. 13. Under the limited scope of Article 227 of the Constitution of India, no jurisdictional error, illegality, impropriety, perversity or procedural irregularity is found in the impugned order. Trial Court rightly passed the impugned order. Petition being devoid of merits, is hereby dismissed.