GOYAL, J. - (1.) ALL these misc. appeals under Section 22 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) have been preferred by the various tenants against the order dated 25. 8. 2003 whereby learned Additional District Judge No. 5, Jaipur City, Jaipur determined the provisional rent under Section 7 of the Act.
(2.) THE landlord-respondent is the same in all these appeals and all the shops in question are located in the same building known as Saraogi Mansion, M. I. Road, Jaipur and the facts as well as law points involved in all these appeals are common, hence these appeals are being disposed of vide common judgment. The facts of each case in brief are as under :- C. M. A. No. 2384/2003:-Shop No. 41 of 117 sq. ft. area on ground floor was let-out on 30. 11. 1985 at monthly rent of Rs. 478/- including Rs. 28/- as house tax. The rent was enhanced to Rs. 585/- per month including Rs. 35/- as house tax w. e. f. 1. 4. 1996. The plaintiff-landlord filed a suit for fixation of standard rent under Section 6 of the Act in April, 2001 with a prayer that standard rent may be fixed Rs. 6435/- per month @ Rs. 55 per sq. ft. The Trial Court under Section 7 of the Act fixed the provisional rent Rs. 3744/- per month @ Rs. 32/- per sq. ft. C. M. A. No. 2240/2003:-Shop number 42 having 117 sq. ft. area on ground floor was let out on 1. 9. 1985. Monthly rent agreed upon was Rs. 478/- including Rs. 28/- as house tax. The rent was enhanced to Rs. 585/- per month including Rs. 35/- as house tax w. e. f. 1. 4. 1996. Remaining facts of this case are similar to the first C. M. A. C. M. A. No. 2201/2003:-Shop No. 23 of 107 sq. ft area on ground floor was let-out on 21. 11. 1987 at monthly rent of Rs. 375/- including Rs. 22/- as house tax. The rent was enhanced in December, 1990 to Rs. 459/-, in December, 1993 to Rs. 528/-, in June, 1997 to Rs. 607/- and in June, 2000 to Rs. 741/- with house tax. The plaintiff-landlord prayed that standard rent Rs. 6,000/- per month @ Rs. 55 per sq. ft. should be fixed. The learned Trial Court fixed the provisional rent under Section 7 of the Act Rs. 3424/- per month @ Rs. 32 per sq. ft. C. M. A. No. 2585/2003:-The shop No. 109 of 140 sq. ft. on first floor was let-out at monthly rent of Rs. 350/- on 16. 1. 1986 and at present the monthly rent is Rs. 612/- since 2001. The prayer was made for fixation of standard rent Rs. 6,300/- per month @ Rs. 45 per sq. ft. The learned trial Judge under Section 7 of the Act fixed provisional rent Rs. 4060/- per month @ Rs. 29/- per sq. ft. C. M. A. No. 2476/2003:-The shop No. 108 of 135 sq. ft area on first floor was let-out at monthly rent of Rs. 338/- on 28. 1. 1986. The prayer was made for fixation of standard rent @ Rs. 45 per sq. ft. The learned Trial Court fixed the provisional rent Rs. 3,915/- per month @ Rs. 29/- per sq. ft. C. M. A. No. 2472/2003:-Shop No. 48 of 90 sq. ft area on ground floor was let out on monthly rent of Rs. 500/- including Rs. 30/- as house tax on 3. 8. 1994. The rent was enhanced to Rs. 550/- per month including Rs. 32/- as house tax w. e. f. 1. 8. 1997. The prayer of Rs. 5,000/- per month @ Rs. 55 per sq. ft. as standard rent was made. The Trial Court determined the provisional rent Rs. 2,880/- per month @ Rs. 32 per sq. ft. C. M. A. No. 2315/2003:-Shop No. 47 of 90 sq. ft. area on ground floor was let out on 15. 7. 1999 at monthly rent of Rs. 920/- including Rs. 55/- as house tax. Prayer of standard rent was Rs. 4,950/- per month @ Rs. 55/- per sq. ft. but the learned Trial Court under Section 7 of the Act fixed Rs. 2,880/- per month @ Rs. 32/- per sq. ft. C. M. A. No. 2322/2003:-Shop No. 51 of 97 sq. ft. area on ground floor was let out at monthly rent of Rs. 339/- on 15. 7. 1999. The rent was increased to Rs. 525/- including Rs. 31/- as house tax w. e. f. 1. 9. 1997. Prayer of fixation of standard rent was the same and the provisional rent was determined @ Rs. 32/- per sq. ft. C. M. A. No. 2369/2003:-Shop No. 40 of 118 sq. ft. area on ground floor was let out at monthly rent of Rs. 377/- on 1. 9. 1985. The rent was increased to Rs. 550/- per month including Rs. 32/- as house tax w. e. f. 1. 9. 1998. Prayer was the same and the Trial Court determined the provisional rent @ Rs. 32 per sq. ft. The learned trial Judge vide impugned orders further held that this provisional standard rent would be payable w. e. f. August, 2003. The first submission made by learned counsel for the appellants is that agreed rent as provided under Section 5 of the Act may be and should be provisional rent under Section 7 of the Act. Section 5 provides that the rent payable for any premises situated within the areas to which this Act extends for the time being shall subject to the other provisions thereof, be ordinarily such, as may be agreed upon between the landlord and the tenant. The agreed rates of interest in all theses cases is not in dispute. Section 6 provides for fixation of standard rent and Section 7 provides for fixation of provisional rent in a suit under Section 6 of the Act. Sections 6 & 7 of the Act are reproduced as under:- 6. Fixation of Standard rent:- (1) where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be low or excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. (2) the court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent for such premises and shall, in so, doing act according to the following principles, namely:- (a) Where the premises are let for residential purpose or for any of the purposes of the public hospital aushadhalaya or dawakhana, a recognised educational institution, a public library or reading room or an orphanage the standard rent shall not exceed the basic rent increased by fifty percent thereof; and (b) where the premises are let for any other purposes, the standard rent shall not exceed two and half times the basic rent thereof. Provided that where the premises have been First let after the first day January, 1965, the standard rent shall not exceed the basic rent thereof:- Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any court under this Act or by any authority under any law or order repealed by Section 30 before the commencement of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the Court under this section the fair rent or standard rent previously determined or redetermined shall not be disturbed. Explanation:-For the purpose of this sub-section, the basic rent of any premises shall mean the rent at which the premises were let on the first day of January, 1992 and, if not let on that day, the rent at which they were first let after that day. (3) Where for any reason it is not possible to determine the standard rent of any premises on the principles set out in sub-section (2); the court shall determine such rent having due regard to the prevailing rent or standard rent for similar premises in the same locality, the various amenities such electricity, water connection, maintenance and repairs thereof, the special reasons, if any; provided by the plaintiff and other relevant considerations. (4) In fixing the standard rent for any premises under this section, the court shall determine such rent in respect of the premises in an unfurnished state but may also determine additional charge to be payable on account of fittings or furnishing and it shall be lawful for the landlord to recover such additional charge from the tenant. (5) In every case in which the court determines the standard rent of any premises under this section it shall appoint a date from which the standard rent so determined shall be deemed to have effect; Provided that such date shall, in the case of a tenant who institutes suit under this section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the court may be in the circumstances of the case deem reasonable. Sec. 7:-Fixation of Provisional Rent:- (1) Upon the institution of a suit under Section 6, the court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force till a decree fixing the standard rent therefore is finally made in such suits. (2) The provisional rent fixed under this section shall also apply to such arrears of rent as in the case of a tenant who has instituted within six months from the commencement of the tenancy a suit under Section 6 on the ground of the rent agreed upon being excessive relate to the period intervening between such commencement and institution. (3) A suit for the recovery of arrears of rent to which the provisional rent fixed under this section is applicable shall be stayed by the court upon the payment by the tenant in court of the total amount due to the landlord on the basis of such provisional rent. (4) Any failure to pay the provisional rent for any month by fifteenth day of the next following 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. (5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed. It is not in dispute that Division Bench of this Court in Khem Chand vs. State of Rajasthan & Anr. (1), held that sub- section (2) of Section 6 of the Act providing principles for the Court for fixation of the standard rent are ultravires and unconstitutional and as such struck down. Therefore, standard rent can now be fixed in view of the provisions of sub-section (3) of Section 6 of the Act. According to sub-section (3) of Section 6 the Court shall determine standard rent having due regard to the prevailing rent or standard rent for similar premises in the same locality, the various amenities such as electricity, water connection, sanitary fittings and the like, the cost of construction, maintenance and repairs thereof and for other relevant considerations. Sub-section (1) of Section 7 of the Act provides for fixation of provisional rent upon the institution of a suit under Section 6. For fixing provisional rent, the Court shall forthwith make an order fixing in a summary manner provisional rent and such rent shall remain in force till a decree fixing the standard rent is finally made in such suits. This Court in Lalchand vs. Rameshwarlal (2), held that provisional rent under Section 7 of the Act can be fixed at a scale different from contractual rent. Hence, first contention cannot be accepted. Another submission made on behalf of the appellants is that the Trial Court has taken into consideration D. L. C. rates fixed by the District Committee, Jaipur for the cost of land as mentioned at page 5 of the valuation report, while this Court in Satyam Properties vs. The State of Rajasthan & Others (3), held that the criterias for the cost of land fixed by district level committees are not valid. But a perusal of the impugned orders reveals that the fixation of provisional rent is not based on D. L. C. rates providing for the cost of land. The Trial Court has taken into consideration the valuation report dated 26. 5. 2003 prepared by an approved valuer but the provisional rent has not been fixed only on the basis of this valuation report. The Trial Court has fixed provisional rent mainly on the basis of three rent notes of shops in Saraogi Mansion and other five rent notes relating to other shops situated at M. I. Road, Jaipur and in Johari Bazar area. The rents of the shops in Saraogi Mansion according to rent notes are about Rs. 94. 45/- and Rs. 76/- per sq. ft. and rates of rent of other rented shops are Rs. 95/-, 66/-, 150/- and 133/- according to rent notes and one shop @ Rs. 24/- per sq. ft. on second floor. Taking into consideration all the aspects the Trial Court fixed the provisional standard rent @ Rs. 32/- per sq. ft. for the shops on ground floor and @ Rs. 29/- per sq. ft. for the shops on first floor. According to learned counsel for the appellants, the Trial Court while fixing the provisional rent should have taken into consideration the basic rent i. e. the agreed rent when the shops in question were let out and reliance was placed upon Gopichand vs. Dhannalal (4), and Baijnath vs. Ramniwas & Others Both the judgments were given with reference to Section 6 (2) of the Act and now in view that sub-section (2) of Section 6 has been struck down, these judgments are not applicable. Reliance was also placed upon Lakha Khan vs. Shri Kishan (6), wherein it was held that the landlord is not prohibited from entering into an agreement with a tenant for the payment of rent in excess to the limits laid down under Section 6 of the Act. This judgment is also not applicable as the point in question in the instant appeals is quite different. It was also submitted on behalf of the appellants that mere claim by the landlord or by the tenant that agreed rent is too low or excessive is not sufficient for fixation of standard rent under Section 6 of the Act and the Court must give a finding that agreed rent is too flow or too high before it fixes standard rent. Reliance is placed upon Jagdish Prasad vs. Kapoor Chand No doubt, the Court has to arrive at such a finding when fixing the standard rent under Section 6 of the Act. The suits for fixation of standard rent under Section 6 of the Act are pending in the Trial Court and the impugned orders have been passed under Section 7 of the Act and the Trial Court has to fix the provisional rent in a summary manner. It was next submitted that the provisional rent has also to be fixed on the basis of the same criterias which are to be taken into consideration while fixing the standard rent under Section 6 of the Act. Reliance is placed upon Firm Khetsi Dass Sheoji Ram & Others vs. Mohani Devi and Another According to learned counsel for the respondents, the Trial Court has fixed the provisional rent on the basis of same criterias which are provided under Section 6 (3) of the Act. The submission made by learned counsel for the respondents appears to be justified as the Trial Court has taken into consideration the prevailing rates of rent for similar premises in the same and nearby localities. In Dr. Baibir Singh and Others vs. M. C. D. and Others (7), the Hon'ble Supreme Court while dealing with the provisions of fixation of standard rent of Delhi Rent Control Act held that the Court having regard to various attendant circumstances and considerations may fix even less than the standard rent. It is observed here that all the criterias provided under Section 6 (3) of the Act for fixation of standard rent have to be taken into consideration while deciding the suits filed by the landlord under Section 6 of the Act. According to learned counsel for the respondents, the Trial Court has fixed the provisional rent having taken into consideration the prevailing rates of rent in the same premises as well as other premises situated at M. I. Road and nearby Johari Bazar and the rates of the provisional rent fixed by the Trial Court are in no way excessive and no interference with provisional rent determined by the Trial Court is required and the rent provisionally determined is subject to final determination of rent under Section 6 of the Act. Reliance is placed upon Ansuyaben Kantilal Bhatt vs. Rashiklal Manilal Shah and Another According to this judgment the standard rent initially fixed by the court was Rs. 101/- per month and the Hon'ble Apex Court taking into consideration the prevailing rentals in the area held that rent can be increased upto Rs. 3,500/- per month. Learned counsel for both the sides relied upon Malpe Vishwanath Acharya and Others vs. State of Maharashtra and Another (11), wherein it was held that while fixing the standard rent the Court should take into consideration the fact of increase in wages and allowances etc. from time to time.
(3.) IN view of the entire discussion made hereinabove, I find no merit to interfere with the fixation of the provisional rent and the provisional rent shall ultimately by subject to the final determination of the standard rent to be fixed by the Court under Section 6 of the Act. In C. M. A. No. 2201/2003-K. K. Dandiya vs. Saraogi Mansion Estate Pvt. Ltd. learned counsel Sh. Ranjan appearing for the appellant made one more submission that the respondent-landlord had previously filed a suit for eviction against the present appellant-tenant in which parties arrived at a compromise, hence compromise decree was passed by the Court on 20. 8. 1996 and according to that compromise the appellant-tenant agreed to enhance the rent by 15% after every three years and as such the respondent-landlord is estopped to file the present suit for fixation of standard rent. He placed reliance upon Salkiya Businessmen's Association and Others vs. Howrah Municipal Corporation and Others Facts were that the learned Single Judge of the Calcutta High Court disposed of the writ petition in terms of the settlement arrived at between the parties. Subsequent to that the respondent authorities instead of abiding by the terms of the orders of the High Court raised disputes. Hence, another writ petition seeking for direction to allot alternative accommodation in terms of the earlier order of the Court was filed but the same was dismissed. In view of these facts, the Hon'ble Supreme Court held that the High Court should have strictly enforced the terms of the settlement as ordered by it. In Hiralal Moolchand Doshi vs. Barot Raman Lal Ranchhoddas (dead) by LRs (13), it was held that eviction decree on the basis of the compromise admitting the grounds of eviction is not nullity and executable. Similar view was taken by this Court in Umaid Singh vs. Halima and Others It was submitted by learned counsel Sh. Gupta appearing for the respondent that the rulings relied upon by the appellants are not applicable as the question was as to whether eviction decree based upon compromise is a nullity or not while in the instant case the question is as to whether the landlord is estopped in filing a suit for fixation of standard rent under Section 6 of the Act. He placed reliance upon Baldevdas Shivlal vs. Filmistan Distributors (India) Pvt. Ltd. & Others (15), wherein it was held that a consent decree does not operate as res-judicata because a consent decree is merely the record of the contract between the parties of a suit. In the instant case, the question is as to whether the agreed rent is low which requires reconsideration in view of the provisions of Section 6 of the Act and thus earlier compromise between the parties that the rent would be enhanced by 15% after every three years does not operate as a bar for filing a suit for fixation of standard rent by either party. Thus, all these appeals are liable to be dismissed. Cross objections have also been filed on behalf of the landlord-respondent with a prayer that the provisional rent should have been fixed at the rates claimed by the plaintiff- landlord in the suits filed under Section 6 of the Act. A preliminary objection was raised on behalf of the appellants that cross objections under Section 22 of the Act are not maintainable while according to learned counsel for the respondent cross objections are maintainable as provided under Order 41 Rule 22 C. P. C. Without going into this question, I have gone through all the cross objections and have considered the rival submissions. I find no merit in the cross objections made by the respondent- landlord as the Trial Court has only determined the provisional rent and therefore, I find no merit to interfere with the same by determining the provisional rent as claimed by the landlord in the suits filed under Section 6 of the Act. ;