CHAUHAN, J. - (1.) THE contest between the landlord and the tenant over the payment of provisional rent has raised an interesting legal issue: whether while determining the provisional rent under Section 7 of the Rajasthan Premises (Control of Rent and Eviction) ct, 1950 (henceforth to be referred to as `the Act', for short), the court has the power to direct the payment of the said rent from the date of filing of the application under Section 6 of the act or not?
(2.) THE appellant is challenging the order dated 9. 12. 2003, passed by the Additional District Judge, No. 8, Jaipur whereby the learned Judge has fixed the provisional rent of the shop at Rs. 5,500/- per month and has directed the appellant to pay the said amount to the respondent from 17. 4. 2001, the date of the filing of the suit under Section 6 of the Act. The brief facts of the case are that the landlord, the respondent before this court, had filed a suit under Section 6 for fixation of standard rent for the shop rented by the appellant. According to the plaint, the Saraogi Mansion is a commercial building situated on M. I. Road of Jaipur the main artery of Jaipur. The appellant rented out a shop, shop No. 52, situated in the basement of the building and measuring 169 sq. feet on 1. 1. 93. Initially, an oral agreement was made for the said shop. However, on 5. 1. 93, the parties entered into a tenancy agreement whereby it was agreed that the appellant would pay a monthly rent of Rs. 980/- and after every three years the rent would be increased by 25% of the said rent amount. But the respondent claimed that ever since the shop has been rented, the appellant hasn't increased the rent. But during the period of 1993-2001, with the increase in commercial activity in the area, the rental value of the shops both in and around the Saraogi Mansion increased by leaps and bounds. For other premises in the locality, the rental value had increased to Rs. 80/- to Rs. 100/- per sq. feet. Therefore, the respondent felt that the rent received by them is too low. According to the respondent, even if the rental value were to be taken to be Rs. 55/- per foot, the rental value of the premises in dispute should be fixed at Rs. 9300/- per month. Hence, the respondent filed the suit under Section 6 of the Act for fixation of the standard rent. The appellant denied the respondent's averments and pleaded that the respondent is already receiving more rent that is being paid by others in the area. He further denied any increase in the rental value in Jaipur. According to him, the rental value of Rs. 60/- per foot is unreasonable. After hearing both the parties, vide Order dated 9. 12. 2003, the learned Judge fixed the provisional rent under Section 7 of the Act as aforementioned. Hence, this appeal before this court. The respondent has filed the cross-objection against the same impugned Order. Hence, this common judgment. Mr. Ashok Sharma, the learned counsel for the appellant, has argued that the Court has not been granted unfettered power for determining the provisional rent. The power is guided by Section 6 (3) of the Act. Thus, the learned Judge should have determined the said rent on the basis of the criteria fixed under Section 6 (3) of the Act. One of the factors, and according to the learned counsel, the most important factor is the date of the construction. In order to buttress his contention, the learned counsel has relied upon he case of Dr. Balbir Singh and Others vs. M/s. M. C. D. and Others (AIR 1985 SC 339 ). Moreover, according to him, Saraogi Mansion is adjacent to Bapu Bazar, a commercial area constructed in the 1940's. Hence, the rental value of Saraogi Mansion shops should be on par with the shops in Bapu Bazar. Secondly, although the application was filed under the Act, but meanwhile the Rajasthan Rent Control Act, 2001 (henceforth, to be referred to as `the Act of 2001', for short) has come into force. Therefore, the court should have proceeded under the provisions of the act of 2001. Thirdly, the learned Judge has based his decision on the Valuer's Report submitted by the respondent. The learned Judge has ignored the affidavits filed by the appellant. Lastly, the Judge has erroneously directed the provisional rent to be paid from the date of institution of the application under Section 6 of the Act. The power to direct the payment of provisional rent from the date of filing of the suit does not exist in Section 7 of the Act. Hence, the learned Judge has exercised a power which the statute does not grant him. Thus, this part of the Order is ultra-vires his jurisdiction.
(3.) ON the other hand, Mr. G. S. Bapna, the learned counsel for the respondent, has argued that the criteria laid down in Section 6 (3) of the act for fixation of standard rent has been followed by the learned Judge. Secondly, the provisions of Act of 2001 are inapplicable as the application was filed under the act and not under the Act of 2001. Moreover, there is nothing in the act of 2001 to indicate that the said act would have retrospective effect. In the absence of any indication about the retrospective effect to be given to the Act of 2001, the court can not apply the said act retrospectively. Thirdly, the appellant had filed only affidavits and did not file any Valuer's Report. ON the other hand, the respondent had not only filed his affidavit, but had also filed a Valuer's Report prepared by Mr. Vinay Kumar Soni, an approved valuer with the Finance Department of the Government of India. As it was a case of one affidavit versus the other affidavit, the court was justified in considering the Valuer's Report filed by the respondent. Hence, the Order is legally based on the said Report. Lastly, he has argued that Sections 6 and 7 of the Act are supplementary to each other. Not only Section 6 (3) has to be read into Section 7, but also Section 6 (5) has to be read into Section 7. If Section 6 (5) is read into Section 7, then the Court does not have the power to direct retrospective payment of the provisional rent. He further argued that the landlord should not suffer at the hands of the court, merely because the court has not decided the provisional rent immediately. Hence, the power to direct retrospective payment of the provisional rent has to be read impliedly into Section 7 of the Act. We have heard the learned counsels and have perused the impugned order. This case requires a critical analysis of Sections 6 and 7 of the Act. However, before the said provisions can be examined, regard must be had to the object and aim of the Act. ;