- (1.) THE genesis of controversy in this revision relates to the order dated January 16, 1997 of the learned Additional District Judge No. 3, Jaipur City whereby appeal preferred by the defendant petitioner (for short the tenant) was dismissed and the order dated 22. 2. 1996 passed by the learned Additional Civil Judge (Sr. Division) No. 3, Jaipur City determining the provisional rent under Sec. 13 (3) of the Rajasthan Premises Control of Rent and Eviction Act, 1950 (for short the Act) was confirmed.
(2.) THE plaintiff non-petitioner (for short the land lord) instituted a suit on March 29, 1995 for eviction against the tenant on the ground of bonafide personal necessity and default in making payment of rent. Admittedly no relief in respect of recovery of arrears of rent was sought in the plaint. For the purpose of eviction the suit was valued at Rs. 35,100/- (on twelve months' rent at the rate of Rs. 2925/- per month ). In para 6 and 7 of the plaint the land lord pleaded that rent was due against the tenant since December 1993, therefore the tenant committed default in making payment of rent. The learned trial court determined the provisional rent under section 13 (3) of the Act and directed the tenant to make payment from December 1993 to January 1996 amounting to Rs. 69,920/- plus interest in the sum of Rs. 4247/- at the rate of 6% per annum to the land lord. Mr. R. B. Mathur, learned counsel for the tenant urged that the plaintiff has not claimed the rent in the plaint therefore the plaintiff shall be deemed to have waived the claim of rent would the plaintiff have claimed the rent in the relief clause, the suit would have gone out of the pecuniary jurisdiction of the court. Therefore both the courts below have committed jurisdictional error in justifying the determination of provisional rent. The provisional rent could not have been determined without payment of court fee. On the other hand Mr. Dalip Singh, learned counsel appearing for the land lord supported the impugned orders and canvassed that they were legally passed. The provisional rent was rightly determined. Whether proper court fee is paid or not is a question between the plaintiff and the State. Reliance was placed on Sri Ratnavarmaraja vs. Smt. Vimla (1 ). Mr. Dalip Singh learned counsel further contended that it is not necessary that land lord should also file suit for arrears of rent as part of same cause of action. In support of this contention reliance was placed in Modi Steels vs. M. M. Agrawal (2), Uma Gupta vs. Ramesh Chandra (3) and Smt. Dayawati Joshi vs. S. H. Gupta I have given my anxious consideration to the rival contentions and carefully perused the impugned orders as well as authorities cited before me.
(3.) AT this juncture it is necessary to advert to the statutory provisions of Section 13 (3) of the Act, which provides thus- "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 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 land lord 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 calculated 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 filing of the suit. " In order to appreciate the provisions contained in section 13 (3) of the Act it will be useful to discuss section 13 (1) (a) of the Act which reads thus- "section 13 Eviction of tenants- (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a land lord, whether in execution of a decree of otherwise evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied- (a) that the tenant has neither paid nor tenderned the amount of rent due from him for six months. " If a suit for eviction is based on default under clause (a) of sub-section (1) of section 13 of the Act, the landlord must prove following three points: (i) Tenant is in arrears of rent; (ii) Such arrears of rent due for more than six months; (iii) Tenant has failed to pay such arrears of rent to the land lord. If any one or more point is not proved, no decree for eviction can be passed. Thus arrears of rent must be distinctly established. ;