GUPTA, J. - (1.) HEARD learned counsel for the parties.
(2.) BY the impugned judgment and decree, the learned lower appellate court has dismissed the plaintiff's suit for fixation of stand rent, which was decreed by the learned trial court. The facts of the case are that the plaintiff filed a suit for determination of standard rent of the suit premises, alleging interalia that the suit premises were let out on 7. 5. 1953 at a monthly rent of Rs. 100/- per month to Nandlal, who expired on 28. 12. 1986, and since then, the defendants are carrying on the business as his legal representatives, that the rents of the adjoining premises have increased leaps and bounds, and even if the premises are let out today, they could fetch a rent of Rs. 1500/- per month. Since the premises were let out for commercial purposes, on the basis of rent as on 1. 1. 1962 being Rs. 100/-, the standard rent is required to be determined at Rs. 250/- per month. The defendants contested the suit interalia on the ground that apart from the defendants, one Smt. Vidhaya Devi, the widow of deceased Nandlal has not been impleaded as party who was necessary party. The other objection raised was that the plaintiff has never maintained the suit premises, and therefore, the plaintiff is not entitled to have the standard rent determined. The suit was said to be suffering from deficiency of court fees also. The learned trial court vide judgment and decree dated 25. 4. 1996 found that the premises are commercial premises, and in the event of death of the tenant, the legal representatives carrying on business are treated to be tenants, and since DW-1 Jaiprakash has admitted that they carry on the business for Vidhaya Devi, while Vidhya Devi never comes on the shop, and therefore, the issue No. 1 about Vidhya Devi being necessary party was decided against the defendants. Then considering the provisions of Section 6 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the standard rent was found to be determinable at Rs. 250/- per month. Interalia with these findings, the suit was decreed by the learned trial court. On appeal filed by the defendants, the learned lower appellate court decided Issue No. 1 against the plaintiff by holding that from the evidence it has come that Vidhaya Devi is getting the business carried on through her sons and therefore, she is the real owner of the business and therefore, she is the real owner of the business and therefore, she was necessary party to be impleaded in the suit. Then deciding issue No. 2 it was held that, though the plaintiff has deposed that the premises can fetch a monthly rent of Rs. 1500/- but has not led any other evidence including the prevailing rent of the neighbouring premises, and therefore, learned lower appellate court found that there is no intrinsic evidence of Brahmanand, on the basis of which the standard rent can be determined at Rs. 250/- per month. It was also held that since from the evidence of Brahmanand it is not established that agreed rent is low, simply because the law provides that the rent cannot be enhanced beyond two and half times, it cannot be determined at Rs. 250/- per month, in absence of any positive evidence on the side of the plaintiff. Thus, the finding on issue No. 2 was set aside. In the result the appeal was allowed, and the suit of the plaintiff was dismissed. Having heard learned counsel for the parties, and having perused the record as made available to me by the learned counsel, in my view the judgment of the learned courts below cannot be sustained. So far as the finding of the learned lower appellate court on issue No. 1 is concerned, learned counsel for the parties read to me the statements of both the witnesses, being the plaintiff, Brahma Nand, and defendant Jaiprakash, and from a reading of their statement, it is clear that it is nowhere even a whisper, to the effect that, at the time of death of Nandlal, Vidhya Devi was carrying on business in the suit premises with him as contemplated by Section 3 (vii) of the Act, and therefore, simply because the defendants have chosen to come forward with a stand that the business is being got carried on by her, i. e. the business belongs to her, she doesn't fall within the definition ``tenant'' as provided under Section 3 (vii) of the Act, and therefore, she cannot be said to be necessary party to the present suit. As such, the finding of the learned lower appellate court on issue No. 1 is required to be, and is hereby set aside, and that of the learned trial Court is restored.
(3.) TAKING up the finding on issue No. 2, the learned trial court had passed the judgment on 25. 4. 96, while the learned lower appellate court decided the appeal on 5. 10. 98. A look at the findings shows, that the learned lower appellate court was labouring under misconception, to the effect that, under proviso to Section 6 (2) (b), the standard rent can be fixed at 2 and a half times of the basic rent, but then since the plaintiff has not been able to prove, that the circumstances exist entitling him to have the rent increased by two and a half times, and therefore, the issue was decided against the plaintiff. In other words, the learned lower appellate court had proceeded on the basis that for having the standard rent determined, by having it enhanced to two and a half times, landlord is to establish by positive evidence that the agreed rent is low. Suffice it to say that this legal assumption is not correct, inasmuch as, this court in S. B. Civil Revision Petition No. 802/98 (Bhanwar Lal vs. Hanif (1)), decided on 19. 11. 03 has held as under: ``that for maintainability of the suit under Section 6, the only requirement is; that the rent should be claimed to be `excessive' or `low', and need not be proved to be `excessive' or `low'. In this regard, it may be observed that a look at the provisions of Section 6 (2) again, shows that once the Court entertains the suit, the Court is to hold such summary enquiry as it may consider just and proper, and then is to determine the standard rent for such premises, and in doing so, has to act according to the principles laid down. Significantly, once the suit is entertained, the Court has to determine the standard rent, and is not given any option to rest contended by simply holding that the agreed rent is not proved to be excessive or to be low. According to Section 6 (2), as it earlier existed on the statute book, the specific parameters were laid down for determination of standard rent, and the Court had no jurisdiction to travel beyond that. A proper comprehension of those provisions does show, that there could well nigh be position, where the land lord may file a suit for fixation of standard rent claiming the agreed rent to be low, and after entertaining the suit, the Court holds enquiry, and arrives at a figure of permissible standard rent according to the prevailing provisions of Section 6 (2), and that figure could, well nigh come to a figure, far below the agreed rent, even in that event despite the plaintiff's claiming the agreed rent to be low, the Court will be required to make determination of standard rent at a figure still lower, then the agreed rent. This was an unavoidable eventuality, and this clearly shows, that it cannot be said, that for investing the Court with the jurisdiction to entertain the suit for determination of standard rent, the agreed rent should be proved to be ``low'' or ``excessive'' as the case may be. Thus, I do not find any force in the contention of the learned counsel for the petitioner, that the learned lower Appellate Court could not reduce the rent, without it being proved on the side of the defendant, and without it coming to a finding, about the agreed rent being excessive. '' Thus, once a suit is filed with a claim that the agreed rent is low, or excessive, the court is under obligation to hold an enquiry in accordance with the provisions of Section 6, and to make determination of the standard rent in accordance with the provisions of the Act, and therefore, the learned lower appellate court was required to make the determination of standard rent at such figure on which, the plaintiff was entitled to have it determined. In that view of the matter, the standard rent could have been required to be determined at a sum of Rs. 250/- per month, as provided in proviso to Section 6 (2) (b), but then during pendency of this revision, there has been a sea change in the legal position, inasmuch as, a Division Bench of this court in Khem Chand vs. State of Rajasthan and Another (2), has struck down the provisions of Section 6 (2) of the Act as ultra vires. Therefore, while deciding this revision, the changed legal position has to be kept in mind. ;