KEJRIWAL, J. - (1.) THIS Civil Misc. Appeal under Sec. 22 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 has been filed against the order dated 12. 3. 92 passed by the Addl. District Judge No. 1, Bharatpur determining the provisional rent of the disputed shop at the rate of Rs. l00/- per month under sec. 13 (3) of the aforesaid Act.
(2.) THE brief facts of the case are that the plaintiff-respondent filed a civil suit No. 46/91 before the aforesaid Court with the allegations that the appellant took the disputed shop on rent at the rate of Rs. 300/- per month, that the appellant did not pay rent from 1-4-1988 to 31-5-1991 and thus committed default in payment of rent; that the shop was let out for the purposes of selling cycle parts but the defendant-appellant without the permission of the plaintiff-respondent started the work of repairing of cycles, that the behaviour of the appellant is very rude and that the appellant has created nuisance. In support of his case that the rent was agreed at the rate of Rs. 300/- per month, the plaintiff-respondent submitted affidavits of himself and also of Banwari Lal and Prem Kumar. THE defendant-appellant in his written statement denied the allegations of the plaint and alleged that the disputed shop was taken on rent in the year 1980 in the presence of Shri Saheb Singh at the rate of Rs. 35/- per month including the electric charges; that after two years rent was increased and later on in the year 1988 rent was again increased at the rate of Rs. 75/- per month; that the defendant appellant has been paying rent to the plaintiff-respondent regularly; that the appellant has already deposited rent upto August, 1990 in the Court of Munsiff; Bharatpur under Section 19 (a) of the aforesaid Act. THE appellant also submitted affidavits of Saheb Singh, Babu and Umesh Chandra in support of his case that the rent of the disputed shop was only Rs. 75/- per month and not Rs. 300/- per month as alleged by the plaintiff respondent. On 11-3-1992 the plaintiff submitted his own affidavit mentioning therein that he does not know any person of the name of Saheb Singh and further that the disputed shop was not leased out in the presence of Saheb Singh. The trial Court vide its order dated 12-3-1992 after referring the affidavits and pleadings of the parties determined the arrears of rent under Sec. 13 (3) of the aforesaid Act at the rate of Rs. 300/- per month from 1-4-1988 to 31-5-1990 on the ground that the defendant-appellant did not produce receipt of rent and further that the disputed shop is situated in the city of Bharatpur and the plaintiff claims that the rate of rent was agreed at the rate of Rs. 300/- per month. Against this order of the Addl. District Judge No. l Bharatpur the defendant-appellant has filed the present appeal. I heard counsel for both the parties and perused the record. Shri P. K. Sharma argued that the learned Judge has determined the arrears of rent only on the grounds that the appellant did not produce any receipt of rent and further that the plaintiff claimed rent of the disputed shop at the rale of Rs. 300/- per month. He argued that when the plaintiff did not give any receipt of rent to the defendant-appellant, there was no question of production of any rent receipt by the appellant. He further argued that the lower Court should have drawn adverse inference against the plaintiff from not producing the counterfoil of the alleged rent receipt. He further argued that he sent money order to the plaintiff at the rate of Rs. 75/- per month and also deposited rent in the lower Court under Sec. 19 (a) of the aforesaid Act at the rale of Rs. 75/- per month. He argued that this was sufficient, material for the lower Court to determine the rent at the rate of Rs. 75/- per month but instead of considering those documents the lower court determined the arrears of rent in arbitrary way simply because plaintiff claimed rent at the rate of Rs. 300/- per month and that the defendant did not produce any rent receipt. He lastly argued that the lower Court should also have adjusted the amount which was deposited by the defendant-appellant under Sec. 19 (a) of the aforesaid Act in the name of the plaintiff. On the other hand Shri S. K. Keshote counsel for the plaintiff-respondent argued that the lower Court has determined the arrears of rent on the basis of the material on record and as such this court should not interfere in the order passed by the lower Court. He argued that the order of the lower Court is neither perverse nor is disregard of any provision of law. The lower court has rightly believed the affidavits submitted by the plaintiff and disbelieved the affidavits submitted by the defendant-appellant. He also argued that the rent determined by the lower Court is only provisional. The dispute regarding arrears of rent will be finally decided at the time of decision of the suit and in case at that time the Court comes to the conclusion that the appellant has deposited or paid more money the court shall pass proper order cither for refund of the money or for adjustment of the money in future rent. Under these circumstances he argued that there is no question of interference of the order passed by the lower Court in this appeal. In the present case there is neither any written rent-note nor any document to show as to what was the rent agreed between the parties and when the shop was leased out by the plaintiff-respondent to the appellant. Both the parties have filed affidavits in support of their case. The lower Court did not disbelieve the affidavits filed by the defendant-appellant. The lower Court has determined the arrears of rent only on the ground that the defendant-appellant did not produce any rent-receipt and further that the plaintiff claimed the rent at the rate of Rs. 300/- per month. In my view when the plaintiff did not give any receipt of rent to the defendant-appellants there was no question of production of the same by him before the Court. The lower court in arbitrary way has determined the arrears of rent. In cases where there is no documentary proof regarding rale of rent and both the parties file affidavits in support of their case, in such circumstances the Court should either examine the parties under Order 10 Rule 1 or should direct the parties to produce the deponents for the cross-examination by the other side so that truth may be ascertained. In case during cross-examination the Court finds that documentary evidence regarding rate of rent is in possession of either of the parties or both the parlies, Court should also direct them to produce that documentary evidence. It is true that the rent determined under Sec. 13 (3) is only provisional and the arrears of rent arc to be determined finally at the time of decision of the suit but 1 am also aware of this fact that in case the rent is determined in arbitrary way under sec. 13 (3) and defendant makes a default in the payment of the same, his defence can be struck out under section 13 (5) of the Act and thus a defendant is deprived of his valuable right of contesting the suit on account of arbitrary determination of provisional rent. The order passed by the lower Court is perverse and deserves to be set aside. Consequently I allow the appeal, set aside the order dated 12-3-1992 passed by the Addl. District Judge No. 1, Bharatpur and direct him to re-determine the arrears of rent under Sec. 13 (3) of the aforesaid Act as observed above. Parties are left to bear their own costs. A copy of this order may be sent to the Lower Court. .;