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CASE NO.: Appeal (civil)  1901 of 2003

PETITIONER: Yunus Ali (Dead) through his L.Rs.

RESPONDENT: Khursheed Akram

DATE OF JUDGMENT: 28/05/2008

BENCH: C. K. Thakker & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

Lokeshwar Singh Panta, J.

                The subject-matter of the challenge in this appeal is a  judgment of the High Court of Rajasthan passed in S.B. Civil  Revision Petition No.669/2001 on 18th July 2001 setting aside  the judgments of the Courts below where both the trial court  as well as the lower Appellate Court determined the  provisional rent under Section 13(3) of the Rajasthan Premises  (Control of Rent & Eviction) Act, 1950 (herein after referred to  as the \021Act of 1950\022) at the rate of Rs.400/-p.m. for the shop in  question with effect from 01.06.1994 to 01.07.1999.  The High  Court in revision re-appreciated the evidences and reversed  the concurrent findings of the Courts below and held as  under: -  \023Thus, the provisional determination of  rent by both the courts below at the rate of  400/-p.m. appears on the very face to be  illegal and both the courts below have  committed jurisdictional error in  determining the rent at such rate and they  should have determined the rent at the  rate of Rs.200/-p.m. as it was the rent last  paid by the defendant-petitioner to the  plaintiff-respondent.

For the reasons stated above, it is held  that the orders dated 16.02.2001 passed  by the learned Additional District Judge  No.5, Jaipur City, Jaipur and 13.07.1999  passed by the learned Additional Civil  Judge (J.D.) No.3, Jaipur City, Jaipur are  contrary to the provisions of Section 13(3)  of the Act of 1950 and interference  becomes inevitable for ends of justice and  they are liable to be set aside and this  revision is liable to be allowed.

Accordingly, this revision petition filed by  the defendant-petitioner Khursheed Akram  is allowed and the impugned orders dated  16.02.2001 passed by the learned Addl.  District Judge No.5, Jaipur City, Jaipur  and 13.07.1999 passed by the learned  Addl.Civil Judge (J.D.) No.3, Jaipur City,  Jaipur are set aside.  The learned

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Addl.Civil Judge (J.D.) No.3, Jaipur City,  Jaipur is directed to determine provisional  rent at the rate of Rs.200/-p.m.  It is made  clear that this provisional rent is not final,  but is only interim till the final decision of  the court and subject to adjustment as  provided under Section 13(8) of the Act of  1950. No order as to costs.\024

       Brief facts, leading to the filing of this appeal, are as  under:-         Yunus Ali, the appellant (now represented through his  legal representatives as the appellants) was owner of shop No.  2 situated at House No. 242 at Nahari Ka Naka behind Khetri  House, Madina Masjid Road, Jaipur.  By an oral agreement, he  leased the shop on rent to Khursheed Akram, tenant- respondent herein, on a monthly rent of Rs. 300/- excluding  electricity and water charges.  The respondent-tenant also  paid an advance amount of Rs. 5,000/- which was to be  adjusted against the instalments of rent or to be returned  when tenancy will expire.  On 22.01.1993, a rent deed was  duly executed between the parties on a stamp paper of Rs.  10/- giving effect to the agreed terms and conditions of the  earlier oral agreement of monthly rental of Rs. 300/-.  The  agreement was executed in the presence of the witnesses and  attested by a Notary.  

       In the month of March 1994, the original landlord at the  request of the respondent-tenant, made addition of a platform  in front of the shop with stone floor and erection of shutter  over the shop.  There was agreed marginal increase of the rent  amount after the renovation was over.  A fresh rent deed was  duly executed in favour of the original landlord on 01.04.1994  whereunder rent was increased to Rs. 400/- per month  payable w.e.f. April 1994. It was also agreed that the advance  amount of Rs. 5000/- shall be adjusted in 14 monthly  instalments of the rent due upto 31.03.1994 @ Rs. 300/- per  month and thereafter upto 31.5.1994 @ Rs. 400/- per month  and other terms remained unchanged and unaltered.  Though,  in spite of repeated requests and demands of the original- landlord, the respondent-tenant failed to pay rent even after  the execution of rent deed on 01.4.1994.  Arrears of the rent  started accumulating since 01.06.1994 after adjustment of the  advance amount of Rs.5,000/-.  The landlord left with no  other remedy except to file a suit for eviction on 29.01.1997  before the Court of Additional Civil Judge (S.D.) No. 3, Jaipur  City, Jaipur inter alia contending that apart from various other  grounds mentioned in the plaint, the respondent-tenant has  defaulted in payment of the arrears of rent since 01.06.1994.         The respondent-tenant in his written statement pleaded  that the agreed rent of the shop was Rs.200/- per month and  he had paid an advance amount of Rs. 10,000/- and later on  the rent was never agreed to be increased to Rs.300/- per  month and further to Rs. 400/-per month w.e.f. 01.04.1994 as  claimed in the plaint.  It was admitted by him that he had paid  rent upto April, 1995 @ Rs.200/- per month and in support  thereof, he placed rent receipts on the record.       On 13.07.1999, the learned Civil Judge, after considering  the fact that the rent was being paid by the respondent-tenant  @ Rs. 200/- in support of which he had produced cash  receipts but since a fresh rent deed was executed between the  parties, which prima facie would reveal that the rent was  agreed to be charged @ Rs. 400/- per month and on the  premise of the agreed rate of rent, the trial court determined

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the provisional rent under Section 13(3) of the Act of 1950 @  Rs. 400/- per month from 01.06.1994 to 01.07.1999.       Being aggrieved by the above-said order of the learned  Civil Judge, the respondent-tenant preferred a Civil  Miscellaneous Appeal before the learned District Judge, Jaipur  City, Jaipur which was transferred to the learned Additional  District Judge No. 5, Jaipur City, Jaipur, for trial.  During the  course of hearing of the appeal, the respondent-tenant  produced a copy of compromise deed dated 30.03.1993 before  the Appellate Court in support of his defence that the rent of  the shop was Rs. 200/- per month and not Rs.400/- per  month.  The learned Additional District Judge, on careful  perusal of the said document, arrived at the conclusion that  the said deed pertained to shop No. 5 and not shop No. 2  which was the subject-matter of the suit.  The learned  Additional District Judge has found no error or illegality in the  order of the learned Additional Civil Judge and, accordingly,  rejected the appeal of the respondent-tenant.      Thereafter, the respondent-tenant filed S.B. Civil Revision  Petition No. 669/2001 before the High Court of Rajasthan,  Bench at Jaipur, under Section 115 of the Civil Procedure  Code.  The learned Single Judge of the High Court, as noticed  earlier, allowed the revision.       Hence, the original landlord filed this appeal by way of  special leave.  During the pendency of this appeal, the  landlord died and his legal representatives have been brought  on record as appellants.        Mr. Ajay Choudhary, learned counsel appearing on  behalf of the appellants, submitted that the impugned order is  perverse, erroneous and illegal as the High Court has exceeded  its jurisdiction under Section 115 CPC to replace concurrent  findings of facts with its own findings as if it was exercising  the jurisdiction of the Appellate Court.  He contended that the  High Court has exercised its jurisdiction contrary to the well- settled law laid down by this Court in a series of decisions that  the High Court should not interfere in the findings of facts  recorded by the courts below based upon proper and  reasonable appreciation of evidence.            On the other hand, Mr. Abhijeet Sinha, learned counsel  appearing on behalf of the respondent-tenant, in support of  the order, has submitted that the High Court in exercise of its  revisional powers vested in it under Section 115 of CPC has  rightly interfered with the erroneous and unsustainable orders  of both the courts below and this Court normally under Article  136 of the Constitution should not interfere with the well- reasoned order of the High Court.            Having heard the learned counsel for the parties and  having examined the orders of the courts below, we are of the  opinion that the High Court\022s order on the face of it does not  stand legal scrutiny and deserves to be set aside.         We do not think it proper and necessary to embark upon  the facts of the present case in detail.  Suffice it to notice that  the predecessor-in-interest of the appellants had entered into  oral agreement with the respondent-tenant to lease out shop  No. 2 situated at House No. 242 at Nahari Ka Naka behind  Khetri House, Madina Masjid Road, Jaipur, to the respondent- tenant at the rate of Rs.300/- per month as rent.  The  expenses of electricity and water were also agreed to be paid  separately as pleaded by the original landlord in the plaint.  In  pursuance of the oral agreement, a rent deed was executed on  22.01.1993 incorporating all the agreed terms and conditions  therein.  The respondent-tenant also paid an amount of  Rs.5,000/- as advance to the predecessor-in-interest of the  appellants, which was agreed to be adjusted against the non- payment of rent by the respondent-tenant or shall be returned

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to him at the time of vacation of the shop.  The predecessor-in- interest of the appellants pleaded in the suit that the  respondent-tenant failed to pay the rent at the agreed rate  since 01.02.1993 onwards and it was desired by him that the  rental amount should be adjusted from the advance amount of  Rs.5,000/- deposited by the respondent-tenant as security  with the predecessor-in-interest of the appellants.   Accordingly, rent of 14 months from 01.02.1993 to 31.03.1994  was stated to have been adjusted.  Some addition was made to  the shop by the predecessor-in-interest of the appellants at the  request of the respondent-tenant and thereafter rent @  Rs.400/- per month was agreed to be paid by the respondent- tenant w.e.f. 01.04.1994, for which Rent Deed dated  10.04.1994 was executed in the presence of the witnesses and  duly attested by a Notary.  The amounts of two months\022 rent  from 01.04.1994 to 31.05.1994 @ Rs.400/- per month were  also adjusted out of the advance amount and the balance  amount of rent was not paid by the respondent-tenant despite  repeated requests and demands made by the predecessor-in- interest of the appellants.           The respondent-tenant pleaded before the trial court that  the shop in question was given to him on rent by the  predecessor-in-interest of the appellants @ Rs.200/- per  month and he had paid Rs.5,000/- as advance against the  amount of rent.  On 30.03.1993, a rent deed was executed and  he had paid the rent upto January 1997, but the predecessor- in-interest of the appellants did not give rent receipts after  April 1995.  The respondent-tenant denied the claim of the  predecessor-in-interest of the appellants that the monthly rent  of the shop was ever increased from Rs.300/- to Rs.400/- and  he reiterated and reasserted that the agreed rent was Rs.200/-  per month.          The learned trial court, during the pendency of the  eviction suit and on examination of the rent deeds produced  before him, determined the provisional rent of the shop @  Rs.400/- per month under Section 13(3) of the Act of 1950  payable by the respondent-tenant for a period of 61 months,  i.e. from 01.06.1994 to 01.07.1999, and the total amount of  arrears of rent works out to be Rs.24,400/- on which an  interest at the rate of 6% has been imposed.  The trial court  directed the respondent-tenant to deposit the arrears of rent  together with interest in the bank account of the predecessor- in-interest of the appellants and also directed the respondent- tenant to pay the rent, as determined, regularly in the account  of the predecessor-in-interest of the appellants.   The order of  the trial court has been upheld by the first Appellate Court.         It is well-settled position in law that under Section 115 of  the Code of Civil Procedure the High Court cannot re- appreciate the evidence and cannot set aside the concurrent  findings of the Courts below by taking a different view of the  evidence.  The High Court is empowered only to interfere with  the findings of fact if the findings are perverse or there has  been a non-appreciation or non-consideration of the material  evidence on record by the courts below.  Simply because  another view of the evidence may be taken is no ground by the  High Court to interfere in its revisional jurisdiction.         Considering all the facts and circumstances as noticed  above, we are constrained to hold that the order of the High  Court cannot be sustained and as such we set aside the same.   The High Court has acted in exercise of its jurisdiction with  material irregularity to interfere with the well-merited  concurrent findings and reasonings recorded by two courts  below.  The High Court, with respect to it, has lost sight of the  important fact that it was provisional determination of the  amount of rent by the trial court and the eviction suit is still

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pending before it for final decision.         For the foregoing reasons, the impugned judgment is set  aside and the appeal is allowed, but in the facts and  circumstances of the case, without any order as to costs.