The dominant intention of the parties, as evidenced by the terms of the lease agreement, determines whether a lease is for a building or for a business.

JUDGMENT

Deepak Gupta, J. - This revision petition under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) act, 1973 { hereinafter referred as 'the Rent Act'}, is directed against the order dated 28.02.2017 passed by Ld. Appellate Authority, Faridabad, reversing the order dated 08.04.2016 of learned Rent Controller, Faridabad, whereby provisional rent had been assessed in .

2. According to the petitioners, they are owners of land and building comprised in khewat no.205/190, khata No.227, rect. No.34, killa No.24/1 (5-7) bearing No.FCA-241 situated in East Chawla Colony, Ballabgarh, District Faridabad, consisting of an ice plant & its office; and mushroom plant comprising of 4 big halls measuring 70' x 20' each at ground floor, four big halls of 60' x 20' each in basement and 5 rooms, latrine, bathroom, electricity room, generator set etc. along with boundary wall.

3. The mushroom farm along with all plant and machinery comprising of the big halls as stated above, in an area of 1 kanal, along with 5 rooms for labourers/employees were let out to the respondenttenant vide a registered rent deed dated 16.02.2015. Along with the mushroom farm, house measuring 160 Sq. yards was also let out at monthly rent of Rs. 86,000/-. As respondent stopped paying rent since May, 2015 besides the electricity and other charges, it compelled the petitioners to file ejectment petition under Section 13 of the Rent Act.

4. The respondent opposed the petition, though admitted the tenancy as well as the rate of rent. However, objections were raised by him that certain obligations were to be performed by the petitioners-landlords, which they had failed to do so.

5. On an application for assessment of the provisional rent, learned Rent Controller vide order dated 08.04.2016 found the respondent to be in arrears w.e.f. 01.05.2015 to 31.12.2015 @ Rs. 86,000/-per month and after adding interest and cost, total provisional rent was assessed to be Rs. 7,23,000/-, which was directed to be tendered on 22.04.2016.

6. The respondent-tenant filed appeal against the said order dated 08.04.2016, which was accepted by learned Appellate Authority vide impugned order dated 28.02.2017 by holding that agreement entered between the parties was not a simple lease agreement and rather, the first party i.e. landlords were required to provide perfect and running cooling system, assistance of operators on sharing basis, generator and other facilities as mentioned in the agreement and thus, it was a case of lease of the business to run the business of mushroom farming. It was also noticed that the respondent-tenant had already filed a suit for damages against the petitioners-landlords for not providing the agreed facilities, due to which he had incurred day to day heavy losses and that arrears of rent if any, was a subject matter of previous suit for damages. After making these observations, the order of the Rent Controller assessing the provisional rent was set aside, thus dismissing the said application.

7. Assailing the above said order of the Appellate Authority by way of this revision, it is contended by learned counsel for the petitioners-landlords that learned Appellate Authority has acted with material irregularity and illegality while passing the impugned order, as he misread the lease deed, which clearly provided for the lease of the premises and not lease to run any business. The petitioners have referred to the various clauses of lease deed so as to contend that intention of the parties was only to lease out the property and that learned Appellate Authority has wrongly relied upon the judgments cited before him by the respondent-tenant, which in fact were not applicable to the facts of this case. Learned Appellate Court failed to appreciate the facts that respondent-tenant has not deposited any provisional rent. The dispute regarding to payment of rent could only have been decided after appreciating the evidence to be led by the parties but in the meantime,