Ali (Dead) through His LRS. Vs. Khursheed Akram  INSC 997 (28 May 2008)
C. K. Thakker & Lokeshwar Singh Panta
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 Act of 1950) 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: -
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
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 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. 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
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 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
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 Courts 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 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
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
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
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 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.