SBCWP NO.10152/2009- JAGDISH LOHARIWALA V/S CHANDRA PRAKASH AND ORS. :JUDGMENT DTD.26.10.2009
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B. CIVIL WRIT PETITION NO.10152/2009
Jagdish Lohariwala
Versus
Chandra Prakash and ors.
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.V.K.Agarwal, for the petitioner
Mr. A.K.Khatri, for the respondents.
DATE OF JUDGMENT : 26th October, 2009.
JUDGMENT
1. This writ petition is directed against the order dtd.23.9.2009
whereby the learned trial Court has rejected the application of the
petitioner for re-determination of provisional rent under section 13(3)
of the Rent Control Act, 1950.
2. The petitioner was added as party defendant in the eviction suit
under the orders passed by this Court while deciding his writ petition
No.6876/2009 – Jagdish Lohariwala V/s Chandra Prakash on
20.7.2009. After this, the said defendant – petitioner appears to have
moved an application before the learned trial Court requesting for re-
determination of provisional rent as per Section 13(3) of the Act,
though it was earlier determined against the tenant Ramanand, with
whom the petitioner claimed joint tenancy in the suit premises.
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3. The learned counsel for the petitioner submits that by refusal to
redetermine the provisional rent by the impugned order dated
23.9.2009, the defence of the present petitioner, later on added
defendant, is also bound to be struck off as per Section 13(5) of the
Rent Control Act, 1950, whereas earlier determination of provisional
rent was done qua the defendant Ramanand only and not against the
present petitioner – defendant who was later on added in the said suit
for eviction. He further submitted that the plaintiff – landlord has
moved an application under Section 13(5) of the Act for striking off
the defence of the present petitioner and same is coming up for
arguments before the learned trial Court tomorrow. He however,
submits that consequence of impugned order dtd.23.9.2009 shall be
that the defence of the present petitioner would also be struck off.
4. These submissions are controverted by the learned counsel for
the plaintiff – respondent.
5. Having heard the learned counsel and upon perusal of the
impugned order, this Court is satisfied that the same does not require
any interference by this Court under Article 227 of the Constitution of
India. The provisional rent once determined under Section 13(3) of
the Act need not be determined again and again for the defendant,
who was later on added as party in the suit. The same is determined in
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respect of suit premises and not for each of the joint tenant separately.
Admittedly, the defence of the present petitioner, later on added as
party in the suit, admittedly, has not so far been struck off by the
learned trial Court in accordance with Section 13(5) of the Act.
Therefore, it is premature for this Court to pronounce upon this aspect
of the matter and say that whether the defendant of the present
petitioner shall be struck off or not. If any such order is passed, it
goes without saying that the present petitioner is at liberty to take
appropriate remedy in law against such order, but the impugned order
passed by the learned trial Court on 23.9.2009 whereby it has been
said that such provisional rent need not be determined again at the
instance of present petitioner, later on added as a defendant, does not
require any interference by this Court.
6. Accordingly this writ petition is dismissed. No order as to
costs.
(Dr.VINEET KOTHARI)J.
Item No.S-3.
Ss/-