Madhya Pradesh High Court
Ajit Kumar vs Rawel Singh on 30 April, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No.1356-2008
S.A. No.1344-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30th OF APRIL, 2025
SECOND APPEAL No. 1356 of 2008
AJIT KUMAR
Versus
RAWEL SINGH THROUGH LRS.
Appearance:
Shri Isteyaq Hussain - Advocate for the appellant.
None for the respondents though served and represented.
With
SECOND APPEAL No. 1344 of 2008
AJIT KUMAR
Versus
RAVINDRA KUMAR
Appearance:
Shri Isteyaq Hussain - Advocate for the appellant.
None for the respondents though served and represented.
----------------------------------------------------------------------------------------------------------------
JUDGMENT
Both the second appeals have arisen out of common orders passed by
appellate Court reversing the orders passed by Rent Controlling Authority and
Sub Divisional Officer, Harda (in short 'the RCA') and having identical facts
and common questions of law, are being decided by this common order,
however facts are taken from the Second Appeal no.1356/2008.
2. Second appeal no.1356/2008 has been preferred by the appellant/landlord
challenging the order dated 02.09.2008 passed by District Judge, Harda in Misc.
S.A. No.1344-2008
Civil Appeal No.19/2007 reversing the order dated 10.07.2007 passed by Rent
Controlling Authority and Sub Divisional Officer, Harda (in short 'the RCA') in
Revenue Case No.2-A-90/2004-05, whereby appellant's application under
Section 9/10 of the M.P. Accommodation Control Act, 1961 (in short "the Act")
was allowed by the RCA by fixing standard rent @ Rs.1010/- per month, which
was dismissed by appellate Court in the misc. civil appeal filed by the
respondent/tenant.
3. Only differences in the facts of Second Appeal no.1344/2008 are that area
of shop is 225 sq.ft.; agreed rent is Rs.250/- p.m.; and standard rent has been
fixed as Rs.668/- p.m.
4. Facts in short are that undisputedly the respondent is tenant of the
appellant in a shop situated in main market of Fakhruddin Ali Ahmad Ward,
Harda, on rent of Rs.330/- per month. The respondent was inducted as tenant
long back but thereafter the rent was not enhanced, hence the appellant issued a
notice to the respondent on 29.09.2003 showing his intention of enhancing the
rent @ Rs.750/- per month, but the respondent refused to enhance the rent,
therefore, the appellant instituted a civil suit on 2.9.2004 for recovery of
enhanced rent @ Rs. 750/- p.m. but that suit was dismissed on 28.02.2005 on
the ground of jurisdiction holding thereby that in the light of provision of
section 45 of the Act, jurisdiction to fix standard rent, is available only with the
S.A. No.1344-2008
RCA, therefore, the appellant moved an application under Section 9/10 of the
Act for fixation of standard rent.
5. Upon service of notice, the respondent/Rawel Singh (now dead, through
LRs) filed reply and contended that he is tenant on rent of Rs.330/- per month,
which was fixed with consent of both the parties and the same is higher than the
standard rent, hence no other rent can be fixed. On inter alia contentions, the
application was prayed to be dismissed.
6. Thereafter, the RCA fixed the case for inquiry and pursuant thereto both
the parties adduced their oral and documentary evidence and upon due
consideration of the same, the RCA vide order dated 10.07.2007 fixed an
amount of Rs.1010/- per month as standard rent with the further direction to the
tenant to pay it to landlord. Although in last paragraph of the order, the RCA
has mentioned that the order is being passed as per section 10 taking into
consideration the principles given in section 7(2)(i) and (ii) of the Act but it has
also recorded following findings:-
"i. disputed property is situated in commercial area of main market of Harda;
ii. there is escalation of rental value in Harda town and rental value of the suit
property has been assessed to Rs.31/- sq.ft.;
iii. on the basis of annual rent fixed by the Municipality, standard rent can be fixed by
making 15% increase;
iv. fixation of standard rent is lawful and is in the interest of justice."
S.A. No.1344-2008
7. Against the order passed by the RCA, the respondent/tenant preferred
misc. appeal under Section 31 of the Act with the prayer for setting aside the
impugned order dated 10.07.2007. After hearing the parties, appellate Court
allowed the appeal and by setting aside the order dated 10.07.2007, dismissed
the application for fixation of standard rent by the impugned order dated
02.09.2008. In its order, appellate Court has observed that the standard rent has
been fixed by the RCA as per principles given in section 7(3)(a) of the Act,
which is not applicable to the accommodation in question, because the shop in
question was not separately assessed. At the same time appellate Court has held
that because the shop was not separately assessed, therefore, provision of
section 7(3)(c) of the Act would be applicable, and resultantly held the agreed
rent to be the standard rent which is Rs.330/- and 250/- p.m. respectively.
8. Against the aforesaid order passed by District Judge, instant second
appeal was preferred, which was admitted for final hearing and now is listed for
final hearing.
9. Learned counsel for the appellant/landlord submits that appellate Court
has committed illegality in reversing the well reasoned order passed by the RCA
by misconstruing the provisions of section 7(3) of the Act as well as decision of
a division Bench of this Court in the case of Gourishankar vs. Union of India,
1998 (1) M.P.L.J. SN 2. He submits that even on the basis of said decision in
S.A. No.1344-2008
the case of Gourishankar (supra), the order passed by the RCA could not have
been reversed. With these submissions, he prays for allowing the second appeal.
10. None for the respondents though served and represented.
11. Heard learned counsel for the appellant and perused the record.
12. Undisputedly, the respondent-Rawel Singh (now dead, through LRs) was
inducted as tenant by the appellant in the shop on rent of Rs.330/- per month,
long back and since after inception of tenancy the respondent/tenant (now dead,
through LRs) did not increase the rent and was paying agreed rent of Rs.330/-
p.m.
13. Rent Controlling Authority upon due consideration of the evidence
adduced by the parties and in the light of provision of section 10(4) of the Act,
fixed the standard rent @ Rs.1010/- per month and first appellate Court upon
misinterpreting the principles given in section 7(3) of the Act and without
considering the provision of Section 10(4) of the Act as well as judgment in the
case of Gourishankar (supra) in their real perspective, reversed the order passed
by the RCA.
14. From the impugned order passed by appellate Court it is clear that in
view of the fact that the rented shop was not assessed separately, appellate
Court has observed that provisions of section 7(3)(c) of the Act would be
applicable to the rented shop and as such held that the agreed rent would be the
standard rent and while holding so, did not consider provision of section 10(4)
S.A. No.1344-2008
of the Act, which says that "where for any reason it is not possible to
determine the standard rent of any accommodation on the principles set forth
under section 7, the RCA may fix such rent as would be reasonable having
regard to the situation, locality and condition of the accommodation and the
amenities provided therein and where there are similar or nearly similar
accommodations in the locality, having regard also to the standard rent
payable in respect of such accommodations."
15. Apparently, while passing the order dtd.10.07.2007, the RCA had taken
into consideration the provisions of section 10 and fixed the standard rent @
Rs.1,010/- and Rs.668/- p.m. respectively, but appellate Court without taking
into consideration the same, reversed the order of the RCA and dismissed the
application for fixation of standard rent.
16. While considering a question about liability of a tenant to pay monthly
rent in the suit for eviction filed on the ground under Section 12(1)(a) of the
Act, a Division Bench of this Court in the case of Gourishankar (supra), held
that the landlord cannot claim more than the agreed rent on the ground that the
standard rent is higher except the lawful increase. Apparently, in the case of
Gourishankar (supra), it was not a question involved that standard rent cannot
be fixed higher than agreed rent, therefore for the purpose of fixing standard
rent, aforesaid decision is not relevant to consider, which has been made basis
by appellate Court for reversing the order of the RCA.
S.A. No.1344-2008
17. A coordinate Bench of this Court in the case of Vipin Kumar Mehta vs.
Rajkumar Jain, 2023(4) MPLJ 355 has held that the order passed under section
10 of the Act is not executable. This section merely empowers the RCA to fix
the rent and not to command the tenant to make payment at such rate of rent,
which is fixed by it. Similarly in the case of Triveni Bai (smt.) vs. Smt. Vimla
Devi, 2011(1) MPWN 86, a coordinate Bench of this Court held that after
fixation of standard rent by the RCA, only remedy available to the landlord is to
file a civil suit for arrears of rent. Further, while considering the question of
accrual of cause of action for recovery of such rent, another coordinate Bench of
this Court in the case of Ashwani Trivedi (Dr.) and others v. Bhumi Vikas
Bank, 2000 (1) MPLJ 343, held that the order fixing standard rent remains in
abeyance during first and second appeals and landlord cannot recover standard
rent till it is finally decided.
18. In the present case, the RCA while passing the order of fixation of
standard rent also directed the tenant to make payment of standard rent. It is
also apparent from the order passed by District Judge that the aforesaid
direction of making payment of standard rent issued by the RCA, created
confusion in the mind of appellate Court, resultantly District Judge has passed
the order recording findings to the effect that if the standard rent is higher than
agreed rent, then it is not payable. As such in view of said decisions, the RCA is
not required to issue direction to pay the standard rent.
S.A. No.1344-2008
19. As has been been held by a coordinate Bench of this Court in the case of
Goverdhandas Prasnani v. Tikamdas and others, 1997 (2) JLJ 363 it is well
settled that standard rent can be more or less than the agreed rent.
20. Perusal of impugned order passed by appellate Court also does not
indicate that the appellate Court has found the standard rent fixed by the RCA to
be excessive or illegal, which was necessary before reversing the order passed
by the RCA that too while exercising appellate jurisdiction provided under
Section 31 of the Act.
21. In view of the aforesaid discussion, this Court finds that the appellate
Court has committed illegality in passing the impugned orders and in reversing
the orders passed by the RCA.
22. Resultantly, by setting aside the impugned orders passed by appellate
Court, the orders passed by the RCA are hereby restored.
23. With the aforesaid, both the second appeal stand allowed/disposed off.
24. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
SN
SATTYENDA
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cn=SATTYENDAR NAGDEVE
Date: 2025.05.05 18:35:13 +05'30'
