Eviction--Provisional Rent--There is no need for adjudication on authenticity of documents while assessing the provisional rent

G.S.SANDHAWALIA, J.

1. The petitioner-landlord challenges the order of the Appellate Authority, Gurgaon dated 07.11.2016 (Annexure P-5) whereby, the appeal of the respondent-tenant has been allowed and the order dated 17.09.2016 (Annexure P-3) making assessment of the provisional rent was set aside. Directions were accordingly issued to pass appropriate orders afresh as per the earlier order passed by the Appellate Authority on 22.01.2016 (Annexure P-2) for assessment of the provisional rent on the basis of some consensus, if any, failing which, the authenticity of the unregistered lease deed relied upon by the petitioner-landlord or the registered lease deed dated 01.09.2015 had to be done before any such assessment was made.

2. The reasoning which prevailed with the Appellate Authority was mainly that on an earlier occasion, the Appellate Authority had set aside the first order dated 23.12.2015 assessing provisional rent and directions had been issued to pass appropriate orders afresh on the basis of the consensus or after ascertaining the authenticity of both the lease deeds. On account of the finality inter se the parties, it was held that the subsequent assessment at Rs. 7,50,000/- per month was same as per the earlier order and, therefore, the earlier directions had not been complied with. Therefore, the provisional rent could not have been assessed when the parties were at dispute and the authenticity of both the lease deeds had to be taken into account. Another factor which prevailed with the Appellate Authority was that there was a reference by the Rent Controller to the word “fair rent” whereas, the issue was of assessing the provisional rent.

3. To appreciate the dispute, it would be necessary to also refer to the pleadings of the parties as such which have also been placed on record by way of Annexures.

4. The case of the petitioner-landlord in its petition filed on 01.12.2015 (Annexure P-6) was that being the trust, it was the landlord of the property bearing No. 486-487 situated at Phase 3, Udyog Vihar, Gurgaon which had been allotted to it by the HSIDC on 01.01.2013. The respondent had been put in as a tenant in the month of November, 2012 and the lease deed had been executed on 01.01.2013 whereby, the premises of the super built up area of 36,878 sq. ft. which comprised of the basement, ground floor, mezzanine floor, first floor and first floor (cafe), as shown as red in the map, had been leased out @ Rs. 50 per sq. ft. amounting to Rs. 18,43,900/-. Since the arrears of rent had not been paid which came to Rs. 6,26,92,600/- from 01.01.2013 to 30.10.2015, the eviction petition was filed by taking the plea that legal notices dated 30.09.2015 and 10.10.2015 had also been served upon them. The relevant terms of the lease deed which was to be for a period of 3 years read thus:-

“1) a) That in consideration of the monthly rent hereby reserved and of the terms, conditions, covenants and stipulation contained herein, THE LESSOR do and doth hereby demise by way of lease unto THE LESSEE, the said Premises for an aggregate super built up area of 36,878 sq. ft. comprising of Basement for area approx. 11,519 sq. ft., Ground Floor for area approx. 4,961 sq. ft., Mezzanine Floor for area approx. 7,470 sq. ft., First Floor for area approx. 8,765 sq. ft., First Floor (Cafe) for area approx. 4,091 sq. ft. (as shown in Annexure II) at Property Number 486 – 487, Phase III, Udyog Vihar, Gurgaon – 122002, more particularly described in the Schedules hereunder written (hereinafter referred to as the “Said Demised Premises”). To hold the same for the terms of 3 years commencing from the date of signing of this lease deed i.e. 1st January 2013 (“lease commencement date”), subject to payment of monthly rent and service tax, as applicable, to be paid in advance on or before 7th day of each month as stated hereinafter, without any reduction but subject to Taxes Deducted at Source (TDS) under the provision of the Income Tax Act, 1961.