t "" YUNUS ALI (DEAD) THROUGH HIS L.RS. v. KHURSHEED AKRAM

.... The Judgment of the Court was delivered by 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 c on 181h 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 'Act of 1950') at the rate of >- D Rs.400/-p.m. for the shop in question with effect from r 01.06.1994 to 01.07.1999. The High Court in revision re-ap- preciated the evidences and reversed the concurrent findings of the Courts below and held as under: - "Thus, 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 G 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. H

p. 1072

A 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 Addi. District Judge No.5, Jaipur City, Jaipur and 13.07.1999 passed by the learned Addi.Civil Judge (J.D.) No.3, Jaipur B City, Jaipur are set aside. The learned Addi.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 c as provided under Section 13(8) of the Act of 1950. No order as to cos~s."

2. Brief facts, leading to the filing of this appeal, are as under:-

Yunus Ali, the appellant (now represented through his le- .;., 0 gal 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-respon- E dent herein, on a monthly rent of Rs. 300/- excluding electricity and water charges. The respondent-tenant also paid an ad- vance amount of Rs. 5,000/- which was to be adjusted against the instalments of rent or to be returned when tenancy will ex- pire. 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.

3. 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 H

p. 1074

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A 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. B 2001- per month and not Rs.400/- per month. The learned Ad- ditional District Judge, on careful perusal of the said document, ,. f

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 c or illegality in the order of the learned Additional Civil Judge and, accordingly, rejected the appeal of the respondent-tenant.

7Copy pinpoint7. Thereafter, the respondent-tenant filed S.B. Civil Revi- sion Petition No. 669/2001 before the High Court of Rajasthan, Bench at Jaipur, under Section 115 of the Civil Procedure Code. ._ D The learned Single Judge of the High Court, as noticed earlier, • allowed the revision. • '

8Copy pinpoint8. 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 E as appellants.

9Copy pinpoint9. Mr. Ajay Choudhary, learned counsel appearing on be- half of the appellants, submitted that the impugned order is per- + verse, erroneous and illegal as the High Court has exceeded ... F 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 appre- -4 ciation of evidence. ....

10Copy pinpoint10. On the other hand, Mr. Abhijeet Sinha, learned coun- sel appearing on behalf of the respondent-tenant, in support of the order, has submitted that the High Court in exercise of its

YUNUS ALI (DEAD) THROUGH HIS L.RS. v 1075 KHURSHEED AKRAM [LOKESHWAR SINGH PANTA, J.] t 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-rea- saned order of the High Court.

11Copy pinpoint11. Having heard the learned counsel for the parties and B

" ·<I/ . ., having examined the orders of the courts below, we are of the opinion that the High Court's order on the face of it does not stand legal scrutiny and deserves to be set aside.

12Copy pinpoint12. We do not think it proper and necessary to embark c 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- D >- 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 ad- E vance 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 to him at the time of .i. vacation of the shop. The predecessor-in-interest of the appel~ !ants pleaded in the suit that the respondent-tenant failed to pay F 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 re- spondent-tenant as security with the predecessor-in-interest of the appellants. Accordingly, rent of 14 months from 01.02.1993 G to 31.03.1994 was stated to have been adjusted. Some addi- tion was made to the shop by the predecessor-in-interest of the ~ appellants at the request of the respondent-tenant and thereaf- ter 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 H ...

p. 1076

..... A 10.04.1994 was executed in the presence of the witnesses and 1

duly attested by a Notary. The amounts of two months' 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 B requests and demands made by the predecessor-in~1nterest of the appellants.

13Copy pinpoint13. The respondent-tenant pleaded before the trial court y l ... that the shop in question was given to him on rent by the prede- cessor-in-interest of the appellants @ Rs.200/- per month and c 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 re- spondent-tenant denied the claim of the predecessor-in-inter- D est of the appellants that the monthly rent of the shop was ever increased from Rs.300/- to Rs.400/- and he reiterated and re- ... asserted that the agreed rent was Rs.200/- per month. •

14Copy pinpoint14. The learned trial court, during the pendency of the evic- tion 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 respon- "" dent-tenant to deposit the arrears of rent together with interest in the bank account of the predecessor-in-interest of the appel- lants and also directed the respondent-tenant to pay the rent, as determined, regularly in the account of the predecessor-in- G interest of the appellants. The order of the trial court has been upheld by the first Appellate Court.

15Copy pinpoint15. It is well-settled position in law that under Section 115 ..,. of the Code of Civil Procedure the High Court cannot re-appre- ciate the evidence and cannot set aside the concurrent find- H

- YUNUS ALI (DEAD) THROUGH HIS L.RS. v 1077 KHURSHEED AKRAM [LOKESHWAR SINGH PANTA, J.]

ings of the Courts below by taking a different view of the evi- A dence. 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.

16Copy pinpoint16. Considering all the facts and circumstances as no- ticed 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 con- current findi~gs 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 pending before it for D • final decision .

17Copy pinpoint17. For the foregoing reasons, the impugned judgment is set aside and the appeal is allowed, but in the facts and cir- cumstances of the case, without any order as to costs. B.B.B. Appeal allowed .

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