MILAP CHAND JAIN, J. - (1.) THIS appeal has been filed under Section 22, Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called the Act') against the order of the learned Additional District Judge No. 2 Udaipur dated April 15, 1989 by which he has held that the arrears of provisional rent determined under Section 7 of the Act may be recovered from the defendant on an execution moved under Order 21, C.P.C.
(2.) IT has been contended by the learned counsel for the defendant-appellant that an order determining provisional rent is simply a declaratory order, on its basis the arrears of provisional rent cannot be realised straight away by the landlord and he has to file a suit for the recovery of the same. He relied upon Ghewar Chand v. Goswami Shri Brijbhusanlalji Maharaj, 1982(1) Rent Control Journal 682 (Raj.). He also contended that the relationship of landlord and tenant in between the parties does not exist and in its absence provisional rent under Section 7 of the Act could not be determined. He lastly contended that the defendant-appellant is regularly paying rent to the Waqf Board in compliance with the order of this Court dated February 24, 1982, passed in an appeal arising out of the suit No. 7 of 1964 in which the title of the plaintiff's vendors was challenged and a tenant cannot be directed to make double payment. In reply, it has been contended by the learned counsel for the plaintiff-respondent that is clearly provided in sub-section (4) of Section 7 of the Act that all sums due from the tenant as such rent shall be recoverable from him as if the order under sub-section (1) were a decree of the Court in a suit for periodical payments and as such it is not necessary for the landlord to file a suit for the recovery of arrears of provisional rent. He relied upon Smt. Manohar Devi v. Kundanlal, 1970 Rent Control Journal 102 (Raj.): 1969 RCR 980. He also contended that the order determining provisional rent has become final and the defendant-appellant cannot escape his liability on the ground that he is regularly paying rent to the Waqf Board.
(3.) IT is the admitted case of the parties that the plaintiff-respondent has filed a suit under Section 6 of the Act for the fixation of standard rent against the defendant-appellant, provisional rent has been fixed under Section 7 of the Act @ Rs. 150/- per month. Appeal No. 219/82 was filed in this Court and it was dismissed on October 12, 1982 so far the order fixing provisional rent @ Rs. 150/- per month was concerned. As such this order of fixing provisional rent @ 150/- per month in the suit in between the parties stands concluded. It is not now open to the defendant-appellant to contend that the provisional rent could not be fixed in the suit of the plaintiff as the relationship of landlord and tenant is under dispute. The fact that the appellant is regularly paying rent to the Waqf Board in compliance with the order of this Court dated February 24, 1982 in an appeal arising out of the suit No. 7 of 1964 in which the title of the plaintiff's vendor was challenged cannot go to deprive the plaintiff-respondent to claim provisional rent @ Rs. 150/- per month from the defendant. Sub-section (5) of Section 7 of the Act provides that all amounts paid as provisional rent shall be adjusted towards the payment of the standard rent finally decreed. If the suit filed under Section 6 is dismissed on the ground that the relationship of landlord and tenant does not exist in between the parties, the defendant-appellant can well recover the entire amount paid by him as provisional rent to the plaintiff-respondent. Sub-section (4) of Section 7 of the Act runs as under :- "(4) Any failure to pay the provisional rent for any month by the fifteenth day of the next month shall render the tenant liable to eviction under clause (a) of sub-section (1) of Section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub-section (1) were a decree of the Court in a suit for periodical payments." ;