SHARMA, J. - (1.) ON October 23, 1975 the plaintiff respondent (for short, "landlord") filed the suit for ejectment on the ground of default of payment of rent and nuisance against the defendant appellant (for short `tenant') from the tenanted premises, which was occupied by the tenant on rent at the rate of Rs. 41/- per month.
(2.) ON January 5, 1976 the tenant, prior to filing of the written statement, moved an application under Section 13 (3) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, `rent Act') seeking determination of provisional rent with the following prayer:- It is therefore, prayed that learned court be pleased to determine the amount to be deposited by this defendant now and allow him time to deposit according to law''. Learned Munsif Magistrate vide order dated March 2, 1976 determined the provisional rent with consent of parties. The order reads as under:- 3-76 odqyk; Qjhdsu gkftja mugsa vthz u/s. 133 Rent Act ij lquk tkdj vthz mudh lgefr ls fueu izdkj ls r; dh tkrh gs%& fdjk;k Hkknok im+ok cnh vekol;k leor~ 2031 ls Qkxqu cnh 14 leor~ 2032 ;kus 19 ekg dk 779-00 C;kt 38-00 dqy tksm& 817-95 vr% izfroknh :- 817-95 is- vunj ,d ekg esa tek djkosa i=koyh oklrs tokcnkok rk- 24-76 dks is'k gksa** The tenant March 29, 1976 again moved an application seeking adjustment of the sum of Rs. 826/- i. e. rent for 14 months which was deposited under Section 19a of the Rent Act. Prayer to deposit sum of Rs. 205/- i. e. rent for a period of five months along with interest was also made. It appears that the said application could not be decided, therefore, on July 6, 1978 the tenant moved another application with the prayer to decide the said application dated March 29, 1976. The trial court vide order dated October 27, 1978 decided both the applications (dated March 29, 1976 and July 6, 1978) holding that the reconsideration of the earlier order March 2, 1976 was not required. It was also observed that if any amount was deposited under Section 19a of the Rent Act the same shall be adjusted at the time of final decision. After the tenant submitted written statement, issues were framed. The parties adduced their evidence and the learned trial court on August 12, 1981 passed decree in favour of landlord holding that the tenant had been in arrears of rent and committed default under Section 13 (1) of the Rent Act. The tenant preferred Civil Regular First Appeal along with the application under Section 5 of the Limitation Act seeking condonation of delay in depositing the rent. Learned First Appellate Court vide judgment and decree dated March 11, 1991 dismissed the appeal. It is against the said findings of the courts below that the instant second appeal has been filed by the tenant.
(3.) ON March 18, 1993 this court admitted the appeal and formulated following substantial question of law:- ``whether the suit for eviction could be filed on the basis of the arrears of rent which were not recoverable in the absence of the Succession Certificate/letters of administration in respect of the period for which the deceased was alive?'' The tenant of April 12, 2004 moved application under Proviso to sub-section 5 of the Section 100 read with 151 CPC with the prayer that first substantial question of law incorporated in the memo of appeal also arises. The question as framed reads as under:- `` (a) Whether the learned lower courts committed substantial error of law in not passing the proper order under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act either allowing or not allowing the adjustment of the rent deposited under Section 19a of the Act?'' Mr. R. K. Agrawal, learned counsel for the tenant canvassed that the trial court has to hear the parties before determining the provisional rent i. e. the plaint and other documents submitted by the parties and the rent could not be determined with the consent of the parties. My attention was drawn to Section 13 (3) of the Rent Act, which reads as under:- `` (3) In a suit for eviction on the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section, the Court shall, on the first date of hearing or on any other date as the Court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in Court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculation at the rate of six percent per annum from the date when any such amount was payable upto the date of determination. Provided that while determining the amount under this sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit. '' ;