MADAN, J. - (1.) BY way of this misc. appeal under Sec. 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short "the Rent Act"), an order dated 7. 9. 2000 passed by the Additional District Judge No. 5, Jaipur City, Jaipur in Civil Suit No. 67/98, whereby rent of the suit premises has provisionally been determined under Sec. 13 (3) of the Rent Act holding it at Rs. 1600/- per month.
(2.) LANDLORD (plaintiff respondent) instituted civil suit for eviction and recovery of arrears of rent against tenant (appellant) on the assertions inter alia that his flat No. 4/569 situated in Jawahar Nagar Housing Board Colony, Jaipur was let out to the tenant on oral agreement that as against monthly rent at Rs. 1600/-, the tenant would deposit monthly instalment of hire purchase to the tune of Rs. 992/- with the Housing Board and pay Rs. 608/- in cash to him with effect from 1. 11. 1990 and further agreed that electricity and water connection installation charges would be deposited by the tenant against adjustment of monthly cash amount of rent payable to him (landlord) and monthly consumption charges of electricity and water bills would regularly be payable and deposited by the tenant. It was the case of the landlord that despite persistent requests the tenant neither gave statement of expenses account either of monthly rent of Rs. 1600/- or of electric and water installation and monthly consumption bills nor paid Rs. 608/- payable in cash to the landlord nor deposited monthly hire purchase instalment of Rs. 992/- towards monthly rent of Rs. 1600/- as agreed to by the tenant with the Housing Board right from inception of tenancy on 1. 11. 90. The decree of eviction was sought on the grounds of (1) bonafide personal need of the plaintiff, (2) default in payment of monthly rent and (3) arrears of rent for the period of 1. 11. 90 to 30. 6. 1998, which was alleged but recovery of rent (excluding the time barred period) was claimed for 36 months amounting to Rs. 5760/- with interest. In written statement, the tenant though admitted oral tenancy but denied terms of oral agreement as averred by the plaintiff in respect of payment of monthly rent of the suit flat and according to the tenant, the monthly rent agreed to and fixed was not Rs. 1600/- but Rs. 608/-, which was regularly being paid to the landlord who was not issuing its receipt. However, it was his admitted case in written statement that he stopped making payment of rent from January, 1998 as the landlord refused to issue due rent receipt. Further the tenant claimed that since he incurred expenses of Rs. 3500/- towards installation of electricity connection and Rs. 1800/- for maintenance of internal fittings while Rs. 2500/- towards water connection installation, he was entitled to adjustment of these expenses in total worth Rs. 7500/- against any payment of arrears of rent. The plea of landlord for his personal need of the suit flat was denied by the tenant on the assertion that the premises where the landlord has been residing alongwith his brother is a joint family property wherein he is in occupation of his share. After hearing both the parties on the application for determination of provisional rent, the trial court by its order dated 7. 9. 2000 determined the rent at Rs. 1600/- per month and directed the tenant to pay arrears of rent w. e. f. 1. 7. 1995 to 31. 8. 2000 alongwith interest @ 6% per annum on total rent outstanding to Rs. 99200/ -. Thus, the tenant was required to pay Rs. 1,14,328/- under Sec. 13 (3) of the Rent Act plus monthly rent regularly w. e. f. 1. 9. 2000 in order to prevent himself from striking off his defence. Hence this misc. appeal. Having heard the learned counsel for the parties, considered their rival contentions and perused impugned order determining the provisional rent so also plaint, written statement and an affidavit (copies whereof were filed by the respondent), I find that undisputably there is no written rent note executed between the parties, rather oral tenancy is not in dispute but the tenant imputed the oral terms stated in the plaint only as to rate of monthly rent. It was case of the tenant that no rent receipt was ever issued by the landlord whereas he has ben regularly paying monthly rent @ Rs. 608/- to the landlord and he stopped paying this rent with effect from January, 1998 because the plaintiff refused to issue rent receipts. Reiterating such a defence pleaded in written statement, Shri M. D. Mathur appearing for the tenant contended that the trial court failed to construe in a right perspective and affidavit of one Manoj Bhargava who even in cross examination disclosed that in his presence, Rs. 608/- were paid by the tenant to the landlord, inasmuch as there has been no material to presume liability to pay monthly hire purchase instalment of Rs. 992/- on the part of the tenant to the Housing Board towards monthly rent as alleged by the landlord. Shri Mathur cited decisions of this Court in Devidas vs. Narain Das (1), Bhagwani Devi vs. Kamladevi (2) and Nirupama Ben vs. Devat Singh Per contra Shri V. B. Srivastava appearing for the landlord placing reliance upon decision in Naresh Sachdeva vs. Prithvipal Singh (4) not only supported the impugned order but also canvassed that the determination of provisional rent is based on material on record inasmuch as the tenant did not want to pay the rent.
(3.) BE that as it may, in the present case, there is no written agreement or rent note between the parties and the tenancy is oral, rather rate of rent is disputed as to the case set up in this regard by the landlord in his plaint and moreover, as held in Bhagwani Devi vs. Kamaladevi (supra) the controversy cannot be resolved only by appreciating the affidavit or counter ones of the parties. In rent disputes it has become frequent that not only the tenant indulged in pleading in their written statement that rent receipts were not issued and even some times rent receipts are also not issued despite payment thereof to the landlord. However, in cases of the rent receipts not being issued by the landlord on payment of rent, then the tenant must avail of protection envisaged in the Rent Act by taking recourse of deposit of the due rent in the Court. But having failed to do so, the tenant cannot be given any protection even at the stage of determination of provisional rent. It is trite that under Section 13 (3) of the Rent Act, a duty is cast upon the trial court to determine provisional rent after hearing the parties and on the basis of the material on record and such a provisional rent determination is subject to adjustment, correction and modification under Sec. 13 (3) & (7) subsequently when the suit is finally disposed of. As taken note of the law laid down in Ganesh Lal vs. Laduram (5), relied in Bhagwani vs. Kamla (supra), "material on record" includes "averments of plaint". Even as per decision in Bhagwani vs. Kamla, this Court specifically observed that determination of provisional rent by the trial court only after appreciation of affidavits of the parties cannot be said to be just and proper in the circumstances of the case. Thus this decision cited by Shri Mathur in fact goes against the tenant in this appeal. Similarly in Devidas vs. Naraindas (supra), provisional rent was determined also upon considering affidavit of previous tenant whereas in the instant cases affidavit is not of previous tenant but of friend of tenant, who never disclosed a oral tenancy terms as set out by landlord or even tenant i. e. with regard to deposit of monthly hire purchase instalment with the Housing Board. Hence without disputing the dictum of law laid down in the context of provisional rent determination under Sec. 13 (3) of the Act, in my considered view, the decision in Devidas vs. Naraindas (supra) does not render any help to the tenant in advancing his case. Further as held in Nirupama vs. Devat Singh (supra) (which too was relied in Devidas vs. Narain Das (ibid), in case of oral tenancy and rent receipts are alleged to have been not issued by the tenant, the material on record available for determination of the rent consists only of the pleadings of the parties, their conduct and surrounding circumstances. It was a case where in the presence of plaintiff's affidavit denying defendants allegation as to the payments, this court held that the defendant ought to have filed her accounts book to rebut affidavit of plaintiff, had she been paying rent without receipts, as admittedly she was running a canteen in the suit premises, and therefore this Court held that documents filed by the defendant afforded no help to her. In the instant case material produced by the defendant consists only of his denial one part of term of oral tenancy to the mode of payment of monthly rent. i. e. deposit of Rs. 992/- as hire purchase monthly instalment with Housing Board out of total rent of Rs. 1600/-, and an affidavit of his friend Manoj Bhargava who too disclosed during cross examination that he had only once gone with the tenant to the plaintiff when Rs. 608/- were given by the tenant to the landlord, whereas the landlord not only specifically pleaded in the plaint as to the mode of payment of rent by way of deposit of Rs. 992/- towards hire purchase monthly instalment to the Housing Board in addition to cash payment of Rs. 608/- per month to him out of total monthly rent of Rs. 1600/- but also he produced document letter of allotment of suit house to show that hire purchase instalment was Rs. 992/- per month. The conduct of the tenant admittedly by stoppage of payment of monthly rent even as per his own case w. e. f. January, 1998 till the determination of provisional rent and without having taken recourse provided under Sec. 19-A of the Rent Act immediately even after stoppage of rent payment atleast before filing this suit of eviction falsified his plea though not conclusively at this stage that rent was Rs. 608/- only, rather nature of figure of rent payable in cash i. e. Rs. 608/- fortified the plea of the plaintiff that this amount of Rs. 608/- was payable to him in cash every month in addition to deposit of his hire purchase instalment of Rs. 992/- payable by the tenant to the Housing Board towards total monthly rent of Rs. 1600/ -. Thus, affidavit or document filed by the tenant did not afford any help to him in any manner not only as regards rate of monthly rent but also adjustment of payment of rent, if any paid towards his plea of non-issuance of rent receipts or even as to the adjustment of electricity and water fitting charges etc. against provisional rent determined and payable thereunder by the impugned order. Thus, in view of the pleadings of the parties, surrounding circumstances and conduct of the tenant, which in fact furnished the material against the tenant and on the basis of which provisional rent under Sec. 13 (3) of the Rent Act has rightly been determined under the impugned order, which does not appear to be erroneous in law or improper so as to call for any interference, inasmuch as to approach of the trial court in taking various elements into consideration as furnishing material for determination of rent appears to be proper and correct. However, it is made clear that the amount of rent determined under Sec. 13 (3) of the Rent Act is only provisional subject to subsequent adjustment etc. when the controversies between the parties are finally decided and if the payment made by the defendant stand ultimately proved by the tenant, he will be entitled to have his adjustment under Sec. 13 (7) and (8) of the Rent Act. In view of what I have held above, resultantly, this misc. appeal fails and being devoid of merit is hereby dismissed. No order as costs. The impugned order stands upheld in toto. .;