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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.2041/2011.
(Om Prakash Vadhwani Vs. Davendra Kumar)
DATE OF ORDER : March 09, 2011
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. C.S. Kotwani for the petitioner.
BY THE COURT :
In this writ petition filed under Articles 226 and 227 of
the Constitution of India, the petitioner-defendant has
prayed for quashing order dated 22.01.2011 passed by the
Civil Judge (Jr.Dn.), Udaipur City (North), Udaipur in Civil
Original Case No.33/1998, by which, application filed by the
petitioner-defendant under Section 13 (3) of the Rajasthan
Premises (Control of Rent & Eviction Act, 1950, read with
Section 151, C.P.C. was dismissed.
As per facts of the case, respondent preferred civil suit
for eviction and recovery of arrears of rent on the ground of
default in payment of rent as well as subletting.
Defendant-petitioner filed written-statement and, after filing
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written-statement, trial Court determined provisional rent at
the rate of Rs.500/- per month vide order dated
16.07.2001. Said order was not complied with, therefore,
learned trial Court passed order on 12.07.2002 whereby
right of defence was struck off.
The petitioner-defendant did not deposit the rent
determined by the Court at the rate of Rs.500/- per month
and after passing order to strike off defence on 12.07.2002
filed an application under Section 13(3) of the Act of 1950
after eight years on 28.10.2010 and submitted that rent
earlier determined may be redetermined because certain
receipts were filed by him showing rent at the rate of
Rs.250/- which were taken on record. Learned trial Court
after considering entire facts of the case rejected the
application filed by the defendant-petitioner under Section
13(3) of the Act on the ground that provisional rent was
determined vide order dated 16.01.2001 as Rs.500/- per
month and said rent was not deposited by the defendant-
petitioner till 12.07.2002, therefore, order was passed to
strike off right of defence and although certain receipts
were taken on record with the condition that defendant will
not be permitted to use those receipts in his defence,
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therefore, on the basis of such receipts, after eight years, it
is not proper to redetermine the rent because there is no
provision in the Code of Civil Procedure for re-determination
of the rent. The trial Court further observed that said
application has been filed only to delay the trial of the suit
which is filed on 02.01.1998.
Learned counsel for the petitioner vehemently
submitted that earlier the rent was wrongly determined,
therefore, certain receipts which came to the knowledge of
the petitioner subsequently were filed before the Court and,
if those receipts were taken on record, then, obviously the
trial Court was under obligation to re-determine the rent at
the rate of Rs.250/- per month; but, the learned trial Court
rejected the application on illegal premises, therefore, the
order impugned dated 22.01.2011 may be quashed and set
aside.
After hearing learned counsel for the petitioner, I have
perused the impugned order.
In this case, admittedly suit was filed on 02.01.1998
for eviction and recovery of arrears of rent. In the said
suit, after filing written-statement, provisional rent was
determined vide order dated 16.01.2001 and defendant-
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petitioner was directed to pay rent at the rate of Rs.500/-
per month. Inspite of determination of provisional rent,
the petitioner-defendant did not deposit the amount,
therefore, order was passed on 12.07.2002 to strike off
right of defence and, for near about eight years, defendant-
petitioner kept mum and did not deposit rent as determined
by the Court but chose to file application to take some
receipts on record and re-determine the rent. The receipts
though taken on record but with the condition that these
receipts will not be used in defence; and, after eight years,
the petitioner filed application before the Court under
Section 13 (3) of the Act of 1950 for re-determination of
the rent.
In my opinion, such conduct of the petitioner
disentitles him to make prayer for re-determination of rent
because he has failed to comply with the earlier order dated
16.01.2001. Moreover, after passing order dated
12.07.2002 striking off right of defence, the petitioner
preferred application for re-determination of rent after eight
years. Learned trial Court while observing the above facts
rejected the application of the petitioner with cost of
Rs.1,000/-. It is significant to note that order dated
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16.01.2001 by which provisional rent was determined and
order dated 12.07.2002 striking off right of defence are not
challenged by the petitioner; and, now, after lapse of this
much of time, the petitioner filed fresh application for re-
determination of rent under Section 13 (3) of the Act of
1950 which is not permissible in law, therefore, learned trial
Court has rightly observed that the defendant-petitioner has
filed the instant application only to delay the trial of the suit
and dismissed the application with cost of Rs.1,000/-. In
my opinion, no error has been committed by the learned
trial Court while rejecting the application for re-
determination of rent filed by the petitioner-defendant
under Section 13 (3) of the Act of 1950. Therefore, no
interference in exercise of power under Article 227 of the
Constitution of India is required in this case.
Hence, this writ petition is hereby dismissed.
(Gopal Krishan Vyas) J.
Ojha, a.