Provisional rent must be determined after hearing both parties and considering the last paid rent, ensuring procedural fairness.

JUDGMENT :

Madan Gopal Vyas, J.

The instant civil miscellaneous appeal has been filed under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, Act of 1950) by the appellant-tenant against the order dated 03.07.2003 passed by learned Additional District Judge (Fast Track No. 2), Bhilwara (hereinafter referred to as the learned Trial Court) in Civil Suit No. 17/2003 whereby learned Trial Court determined the provisional rent of the rented premises at the rate of Rs. 1500/- per month.

2. Learned counsel appearing for the appellant-tenant submits that the impugned order passed by the learned Trial Court is contrary to the settled principles of law. It is submitted that as per Section 13(3) of the Act of 1950, the provisional rent is to be determined after hearing both the parties. However, in the instant case, learned Trial Court proceeded ex-parte as the counsel could not appear for 1-2 hours as he was attending some other Court. It is further submitted that the learned Trial Court failed to consider the material available on record. It is submitted that the appellant filed his written statement along with the rent receipts, which were on record. There is sufficient material available on record to prove that the last paid rent of the premises is Rs. 150/- per month. However, learned Trial Court completely ignored this material aspect of the matter while determining the provisional rent as Rs. 1500/- per month. Thus, in these facts and circumstances of the case, it is prayed that the present appeal may be allowed and the impugned order may be quashed and set aside.

3. Learned counsel for the respondent-landlord submits that the impugned order is well reasoned and does not call for any interference.

4. Heard learned counsel for the parties. Perused the material available on record.

5. For the determination of the present appeal, Section 13(3) of the Act of 1950 is relevant, which is reproduced as under:

"In a suit for eviction on the ground set forth in clause (a) of subsection (1), with or without any of the other grounds referred to in that subsection, 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 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 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 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 per cent 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 subsection, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit."

(emphasis supplied)

As per the provisions of Section 13(3), provisional rent is to be determined after hearing both the parties and on the basis of material available on record.

6. A perusal of the material available on record shows that the impugned order was passed ex-parte. Further, the impugned order does not in any manner deal with the aspect of last payable rent. Learned Trial Court was duty bound to consider the rival contentions of the parties and then come to a conclusion. Therefore, the impugned order deserves to be quashed.

7. Accordingly, the present appeal is allowed. The impugned order dated 03.07.2003 passed by the learned Trial Court is quashed and set aside. The matter is remanded to learned Trial Court to decide the same afresh after giving opportunity of hearing to both the parties and after considering documentary eviden