KHAN, J. - (1.) THIS is a petition under Section 115 of the CPC against the judgment and order of the learned Additional Civil Judge No. l, Kota dated October 7, 1993. Thereby the learned Additional Civil Judge, though dismissed the suit of the plaintiff-respondent in default, yet at the same time declined to finally determine the rent as per the provisions of Section 13 (7) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short 'the Act' ).
(2.) HEARD the learned counsel for parties and perused the order under Revision. Dwarka Das, plaintiff-respondent had filed a suit for eviction of Rizumal and Motilal on the grounds of arrears of rent and bona fide & personal necessity of the suit premises. Both the defendants-tenants are stated to have died during the pendency of the suit. Rizumal died without leaving any heir. Motilal was survived by his three heirs who are the defendant petitioners before this Court. The trial court had determined the provisional rents under Section 13 (3) of the Act on March 4, 1985 and required the tenants to pay the arrear of rent of Rs. 43,200/- with interest at the rate of 6% per annum. The rent was determined at the rate of Rs. 600/- per month. The defendant-tenants appear to have challenged that order before this Court in S. B. Civil Misc. Appeal No. 103/1989 whereupon this Court ordered that the lower court will finally decide the dispute regarding the actual rate of rent as well as amount of rent at the time of decision of the suit and in case at that time it was found that any excess amount had been paid by the defendant-tenants, they would be entitled to get interest on the excess amount at the rate of 15% per annum from the plaintiff-landlord. The defendant-tenants are stated to have paid the arrears of rent as determined by the trial Court, within the period allowed by this Court. It appears that the suit was to be heard on October 7, 1993. On that day the plaintiff and his counsel absented from the proceedings. The defendant-tenants appeared to have required the trial court to decide their application under Section 13 (7) of the Act dated September 27, 1993 and to finally determine their liability so that they may get back the excess amount of rent as per directions of this Court in its order dated November 1, 1990. The learned Additional Civil Judge declined to accept the prayer of defendant-tenants on the ground that the suit itself was going to be dismissed for default of prosecution by the plaintiff- landlord. Mr. R. P. Vijay, learned counsel for the defendant-tenants has urged that even after determination of rent under Section 13 (3) of the Act, it was obligatory on the part of learned Additional Civil Judge to have finally decided the dispute regarding the actual liability of the defendant-tenants relating to payment of rent to the plaintiff-landlord. The learned counsel submitted that in view of the order of this Court dated November 1, 1990 the learned Additional Civil Judge ought to have decided the dispute irrespective of the fact that on the appointed date the plaintiff-landlord and/or his counsel and turned up or not. Mr. Vijay further submitted that the dismissal of the suit under 0. 9 R. 8 CPC cannot cause the death of the rights of the defendant- tenants inasmuch as they are entitled to get their liability for rent finally determined under Section 13 (7) of the Act. Mr. Vijay further submitted that the provisions contained in 0. 7 R. 2 CPC do not make it obligatory for the court to dismiss the suit. The suit could have not been dismissed in the present case in view of the subsistence of the right of the defendant-tenants u/s 13 (7) Mr. Vijay supported his arguments with the cases reported in AIR 1958 AP 652 (1), AIR 1979 (NOC) Del. 107 (2) and 1984 WLN 793 On the other hand the learned counsel Dinesh Kala, vehemently urged that since the suit itself was going to be dismissed, there was no point in deciding the application of defendant-tenants. Mr. Kala further submitted that since the suit has already been dismissed as per provisions of 0. 9 R. 8 CPC, the interlocutory order under Section 13 (7) of the Act, cannot be passed.
(3.) A bare reading of Section 13 of the Act would inform that provisional rent is determined under Section 13 (3) of the Act and the final determination of such rent has to be made under Section 13 (7) of the Act. The right of a party contained under Section 13 (7) of the Act has to be considered irrespective of the fact whether a party has absented himself from the proceedings before the court. Therefore, a suit for eviction of a tenant must be regarded to be continued till the final disposal has been made in accordance with the provisions of Section 13 of the Act. In a case where the provisions of Section 13 (3) of the Act are applicable and the provisional rent has been determined the suit cannot be decided either way without finally determining the rights and liabilities of the parties in respect of the rent without passing an appropriate-order under Section 13 (7) of the Act. In the instant case the plaintiff-landlord has no doubt absented on October 7, 1993 and the learned Additional Civil Judge could have dismissed the suit under 0. 17 R. 2 CPC but, for the reason that he was required to finally determine the rent under Section 13 (7) of the Act, he should have adjourned the hearing of the suit or if he wanted to proceed under O. 17 R. 2 CPC and to dismiss the suit then he should not have done that without first deciding the application of the defendant-tenants and determining their liability or right, as the case may be, under Section 13 (7) of the Act. He was required to act in that way particularly in view of the order of this Court dated November 1, 1990. It seems to me that the learned Additional Civil Judge had fallen in error in not deciding the application of the defendant-tenants under Section 13 (7) of the Act for the reason that the plaintiff and his counsel had absented on that day. The order under revision tantamount to defeating the rights of the tenants uls. 13 (7) leaving no remedy for them to recover the excess rent if any paid by them to the plaintiff-landlord. In that view of the matter this is clearly a case of failure to exercise the jurisdiction vested in a subordinate court and/or the lower court acting in the exercise of such jurisdiction with material irregularity. The suit of the plaintiff-landlord would have been finally decided under 0. 17 R. 2 of the CPC if the rights and liabilities of the parties in respect to the rent would have been determined under Section 13 (7) of the Act by the learned Additional Civil Judge No. l, Kota. The impugned order, if allowed to stand, would occasion in failure of justice and cause irreparable injury to the petitioners as they would be deprived of their right to get finally determined not only their liability to arrears of rent but also the actual rate of rent at which they are required to pay rent to the plaintiff-landlord in future. In order not to allow the injustice to perpetuate, this Court is required to exercise its revisional jurisdiction under Section 115 of the Code of Civil Procedure. In order to appreciate the point canvassed, sub-section (3) and (7) of Section 13 of the Act may usefully be reproduced: - "13 (3) In a suit for eviction on the ground set fourth 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 issue, 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 i up to the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable up to 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 filing of the suit. 13 (7) If in any suit referred to in sub-section (3) there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit a. 05. at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit. " The mandate contained in sub-section (3) and (7) of Section 13 of the Act, can be fulfilled only when those provisions are interpreted in a way which advances and promotes legislative intention in framing sub-sections (3) and (7) of Section 13. Sub- section (3) clearly speaks of determination of the arrears of rent only provisionally in a suit which has been brought on the ground of default with one of more other grounds of eviction. The provisional determination of rent has to be given finality before disposal of the suit in order to take the object of Section 13 (3) to logical end. The provisional determination of the rent under Section 13 (3) may leave the parties with some rights and liabilities and such rights and liabilities are required to be finally decided under Section 13 (7) of the Act notwithstanding the fact that by the act of omission or commission of either party to the suit, the suit may be brought to a pre-mature end under the provisions of 0. 17 R. 2 of the C. P. C. In the Scheme of Section 13, it is obligatory for the trial court to finally determine the rate and amount of rent under Section 13 (7) of the Act, in a case wherein such rate and amount of rent have been determined only provisionally and not finally. The provisions contained in 0. 17 R. 2 and 0. 9 R. 8 CPC no doubt empower the court to make an order of dismissal of the suit for absence of the plaintiff but 0. 9 R. 8 also empowers the court to pass a decree in the suit if the defendant admits plaintiff s claim or a part there of. An order under Section 13 (7) of the Act, particularly when such order is sought by the tenant defendant, may also result in passing a decree in favour of the absenting plaintiff on tenant's admitting his liability to pay rent more than what was provisionally determined under Section 13 (3) of the Act. An order under Section 13 (1) may also find the tenant entitled to recover some amount of rent paid in excess of his liability. In that case though no decree in favour of the defendant shall be passed but the suit of the plaintiff shall be dismissed under 0. 9 R. 8 CPC with the final determination of the right and liabilities of the parties in respect to the rate and amount of rent as on the date of disposal of the suit. The provisions of 0. 17 R. 2 read with 0. 9 R. 8 thus do not come in the way of passing an order under Section 13 (7) of the Act, rather they afford assistance to the court in finally deciding a dispute between the parties in respect to rate and amount of rent. This view find support from the view taken by this Court in the case of Prof. Krishna Datta Singh vs. Pawan Kumar (3) where G. M. Lodha, J. (as His Lordship then was) observed as under : ". . . Under the unamended provisions of Section 13, Sub- section (5) provided that if in any suit referred to sub-section (4) there is any dispute as to the amount of rent payable by the tenant the court shall determine having regard to the provisions of this Act, the amount to be deposited or paid to the land-lord by the tenant under sub-section (4) and, therefore, before the court determined the amount under section 13 (4) of the un-amended Act the court was bound to resolve the dispute about the amount of rent and after that the tenant had to deposit the same and on such deposit sub-section (7) of Section 13 the unamended Act would apply and no decree for eviction on the ground of default could be passed but this is not the position now under sub- section (3) of section 13 of the Act. The amount of rent, now has only to be determined provisionally. Although, on payment of the rent so determined provisionally a decree for ejectment on the ground of default, has been prohibited under sub-section (8) of Section 11 of the Act. Sub-section (7) of that section clearly provides that "if in any suit referred to in sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit a. 05. at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit. " Therefore even after the deposit under section 13 (3) and (4) the dispute about the amount payable survives and the suit has still to proceed and finally the question has to be determined at the time of the final decision of the suit. This final decision is permitted by section 13 (7) of the Act and, therefore, suit for ejectment must be deemed to be continuing till the final disposal of the suit despite the fact that the decree for ejectment may not be passed in the suit. That was not the position under the unamended provision of the Act. " ;