JUDGMENT
S.N. Bhargava, J.
1. This is an appeal Under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1980, against the order dated 9.1.1991 passed by the Addl. Distt. Judge No. 3, Jaipur City, Jaipur, Determining the provisional rent at the rate of Rs. 700/- per month.
2. As per the fact mentioned in the plaint, the defendant-appellant Abdul Sattar was originally tenant of Smt. Heera Bai and Nirmal Das, @ Rs. 200/- per month, since 1976. The premises were purchased by the plaintiff Ashok Atray on 26.11.1982 and the defendant continued to pay rent of Rs. 200/- per month to the plaintiff. According to the plaintiff, he gave some further additional accommodation of rent to the defendant and thereafter, the rent was increased to Rs. 700/- from 1st July, 1983 but since the defendant did not pay the rent, the suit for eviction was filed on 3.6.1989, on the ground of default in payment of rent and other grounds, Service of summons was effected on the defendant and he filed the written statement on 21.5.1990. On 18.7.1990 the defendant filed an application Under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred as the ‘Rent Control Act’) before the trial court, praying that the provisional rent may be determined, to which no reply was filed on behalf of the plaintiff. The defendant wanted to file an application alongwith an affidavit in that support but could not do so by inadvertence, though he had sworn the affidavit on 18.7.1990 itself and therefore, the defendant filed an application under Order 41 Rule 27 CPC with the prayer that the same may be taken or record. The defendant also filed affidavits of Saleem Khan and Jiya Khan on 3.9.1990. The plaintiff did not file his own affidavit in rebuttal but filed an affidavit of Shri Govind Narain on 22.11.1990. The respondent filed rent receipts of the previous landlord as also bills of electricity and water and a receipt of money order for Rs. 1,000/- for five months, which was refused by the plaintiff.
3. Trial Court after considering the material on record, determined the provisional rent @ Rs. 700/- per month and directed the defendant to deposit a sum of Rs. 26,570/- upto 31.12.1990 Under Section 13(4) of the Rent Control Act and to deposit future rent @ Rs 700/- per month w.e.f. 1.1.1991. It is against this order that the present appeal has been filed. Originally, the defendant had filed a revision petition which was later on converted as miscellaneous appeal.
4. I have heard learned Counsel for the parties. Learned Counsel for the plaintiff has placed reliance on Smt. Vimla Devi v. Jang Bahadur 1977 R.L.W. 326 & has submitted that the appellate court should not interfere in the discretion of the trial court if the trial court’s order is not arbitrary nor perverse nor capricious nor in utter disregard or sound legal principles nor without considering all the relevant record. He has further brought to my notice Smt. Nirupama Ben v. Devat Singh 1985 R.L.R. 789 wherein this Court has held that the object of Section 13(3) of the Rent Control Act is to afford protection to tenant and give him one more opportunity to make payment of the arrears of rent and if there is no written agreement or rent note and the tenancy is oral and if there is no rent receipt, the provisional rent can be determined on the basis of the pleadings of the parties, their conduct and the surrounding circumstances. He has also drawn my attention to Chagan Lal v. Smt. Preet Rani 1982 R.L.W. 141 wherein this Court has held that the provisional rent should be fixed after considering all the material oh record.
5. I have given my thoughtful consideration to the whole matter and have also gone through the record of the case as well as the submissions made at the bar and the authorities cited by the learned Counsel for the parties.
6. In the present case, it is admitted that there is no written agreement or rent note & the tenancy was oral. It is also admitted that the defendant was a tenant of the premises since 1976 at the rate of Rs. 200/- per month, & that the property was purchased by the plaintiff on 26.11.1982, & thereafter the defendant attorned to respondent plaintiff & became his tenant & paid rent till 30th June, 1983 even according to the plaintiff himself. The only dispute in the present appeal is as to whether the provisional rent should be fixed at Rs. 200/-per month, as claimed by the tenant or Rs. 700/- as prayed by the landlord plaintiff. The case of the plaintiff is that he had given additional accommodation on rent to the tenant and thereafter the rent was increased to Rs. 700/- per month from 1st July, 1983. According to the rent was increased to Rs. 700/- per month from 1st July, 1983. According to the tenant, the whole premises were with him as a tenant since 1976 at the rate of Rs. 200/- and he has been paying rent to the present landlord also at the same rate and also depositing the water and electricity bills. The parties have not led any evidence in this regard but they only filed affidavits which have also not been cross examined by either party and there is no other material on record. The money order receipt also relates to the period after the filing of the suit. Therefore, much reliance can not be placed on the same at this state. The appellate court should not lightly interfere with the discretion exercised by the order passed by the trial court when it has passed the order after considering the entire material on record. In my opinion, it cannot be said that the trial court is perverse, or arbitrary or capricious or in utter disregard of sound legal principles or without considering all the relevant record and therefore, I will not like to interfere with the discretion exercised by the trial court.
7. Thus, I do not find any force in this appeal. The same is dismissed with no order as to costs.
8. However, in case the appellant succeeds ultimately and the trial court finds that the rent is payable at the rate of Rs. 200/- per month only, the plaintiff landlord shall have to return the excess amount along with interest @ 12% per annum. However, since the amount is quite huge, I think it proper to give two month’s time to the appellant to pay the same to the plaintiff-landlord.