JUDGMENT
G.M. Lodha, J.
1. The respondent Smt. Preet Rani is represented by Mr. Garg.
2. On the joint request of both the learned Counsel, the case was heard on merits also, as it involves a very short point.
3. The sole question is, whether the determination of the rent for the purposes of Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by the impugned order, is justified.
4. Section 13(3) reads as under:
In a suit for eviction on the ground set forth in Clause (a) of Sub-section (1) with or without any of the other ground referred to in that sub-Section, 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 framing of the issue, 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 upto 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 percent per annum from the date when any such amount was payable upto the date of determination:
Provided that while determining the amount under this Sub-section the court shall not take into account the amount or rent which was barred by limitation on the date of filing of the suit.
5. It would be obvious that for the purposes of provisional determination of the rent under Sub-section (3) the following are the necessary require ments of laws:
(1) The court should hear the parties.
(2) The rent should be determined on the basis of material on record.
6. The phrase “material on record” means that all the documents which are submitted in support of the pleading of the parties are inclusive, otherwise the legislature would have used the word only ‘pleadings’ and not ‘material on the record’.
7. In view of the use of the phrase ‘material on record’ the Court is enjoined with a legal duty to apply its mind to all the documents submitted by both the parties in addition to the pleadings of the parties. This application of the mind should be reflected in the order, which should be a speaking order.
8. It would be important to note here that on account of non-payment of the rent determined under Sub-section (3) serious consequences follow against the defendant, if he cannot pay the rent, because the Court then is required to strike off the defence, and the defendant is deprived of the opportunity of contesting the case, so far as this particular clause is concerned. That being so, it is all the more necessary that a judicial determination should be made in a judicial manner after objective application of the mind to the entire material.
9. It is true that this is going to be tentative only in view of Section 13 (3) of the Act. But, even then the Court should never lose sight of the important requirement of the law that the available material on record should be considered.
10. It is necessary that the order passed under Sub-section (3) should further be informative, to show that the requisite material was considered and tentatively accepted or rejected, and if so on some prima facie grounds.
11. I am convinced that the impugned order has been passed in violation of the above requirement of law.
12. Mr. Garg submits that the rent deed itself contains a covenant that no payment would be treated valid unless a receipt is given. Mr. Gupta on the contrary submits that copies of account books filed by his client show that the payments were made. It is not for this Court to make and comment whether to accept the one and reject the other, because it would be be primarily for the trial court to objectively consider and then decide whether prima facie which one should be preferred to the other.
13. The result of the above discussion is that the impunged order is, no order in the eye of law as contemplated under Section 13(3) of the Act and consequently deserves to be quashed. The trial court should immediately reconsider the matter after hearing the parties and the material on record, as required by Sub-section (3) and then pass a reasoned order within a period of one month from today.
