M/S National Silk Palace vs M/S Golecha Cinetalk Pvt Ltd
2021 Latest Caselaw 7632 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil First Appeal No. 105/2020

M/s National Silk Palace, Bapu Bazar, Jaipur
                                                                  ----Appellant
                                   Versus
M/s Golecha Cinetalk Pvt Ltd.
                                                                ----Respondent

Connected With S.B. Civil First Appeal No. 307/2020 M/s. New Lucky Silk Palace

----Appellant Versus M/s Golecha Cinetalk Pvt Ltd.

----Respondent

For Appellant(s) : Mr. J.P. Goyal, Sr. Advocate with Mr. Abhi Goyal, Advocate For Respondent(s) : Mr. Kamlakar Sharma, Sr. Advocate with Mr. Abhishek Sharma, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA

Order

15/12/2021

These two appeals have been filed by the appellants-

defendants (for short, the defendants') against the judgment

dated 5.12.2019, whereby the Trial Court determined the standard

rent of both the suit shops at Rs. 1,13,160/- and Rs. 50,160/-

respectively and held the plaintiff entitled to get the standard rent

so fixed from the date of filing the suits.

Mr. J.P. Goyal, learned Sr. Counsel with Mr. Abhi Goyal,

Advocate submits that since in the year 1978, the standard rent

had already been fixed @ Rs. 710/- per month and Rs. 705/-

(2 of 6) [CFA-105/2020]

respectively, therefore, the present suits filed by the plaintiffs

were barred by principle of res-judicata and not sustainable.

Learned Sr. Counsel further submits that the suit

property is in a dilapidated condition as it was rented out in the

year 1958. He further submits that rent of the nearby shops in the

vicinity is not @ Rs. 70/- per sq. ft. The shops of which the rent is

said to be Rs. 72/- per sq. ft. or Rs. 70/- per sq. ft., are located at

a far better place and are situated in Nehru Bajar and at M.I.

Road, Jaipur respectively, whereas the present shops are situated

in Bapu Bajar. He further submits that the trial court without there

being any evidence on record, assessed the rent @ Rs. 60/- per

sq. ft. and determined the rent at Rs. 1,13,160/- and Rs. 50,160/-

respectively, which is excessive. He further submits that since the

tenancy is of the year 1958 and shops are old, prevailing rent of

the shops in the vicinity cannot be much relevant for

determination of the standard rent of these shops. The rate for

assessing the rent should not exceed Rs. 40/- to 50/- per sq. ft.

and looking to the area and conditions of the shops, the trial court

ought to have determined the rent on reasonable basis.

Learned Sr. Counsel has drawn the attention of the

Court towards sub-section (5) of Section 6 of the Rajasthan

Premises (Control of Rent & Eviction) Act, 1950 (for short, 'the Act

of 1950') and submits that if the tenant institutes a suit under the

Act of 1950, the date for fixation of standard rent shall be the date

of the institution of suit, but in every other case (e.g. in the case

of landlord) in which the Court is required to determine the

standard rent of any premises under this section, the Court shall

determine / ascertain a date from which the standard rent so

determined shall be deemed to be payable. In this view of the

(3 of 6) [CFA-105/2020]

matter, the Court was required to determine the standard rent

from the date of the order instead of date of filing the suit.

He further submits that as per valuation report (Ex.-5)

prepared by the valuer and produced by the plaintiff himself, area

of one of the suit shop is 78.07 Sq. Mtrs., which is approximately

840 Sq. Ft., but the trial court wrongly determined the standard

rent treating the area as 1886 Sq. Ft. He further submits that as

per valuer's report (Ex.-A/1) produced by the defendants, rental

value of the suit shops is Rs. 19,203/- per month and Rs.

18,195/- per month respectively, which have not been considered

by the trial court in right perspective.

It is also submitted that on an application filed under

Section 151 CPC, the defence of the defendants was wrongly

struck off vide order dated 20.7.2019, which is per-se illegal and

not sustainable. In this regard, he has drawn the attention of this

Court towards Section 7 (4) of the Act of 1950. He further submits

that the order dated 20.7.2019 has already been challenged by

the defendants in Civil Misc. Appeal No. 5287/2019, which is

pending adjudication. In this way, the defendants have not been

given any opportunity to lead evidence.

Learned Sr. Counsel further submits that both the

shops are adjacent to each other and the facilities in Bapu Bajar

are less than those in Nehru Bajar and M.I. Road. Looking to the

area, condition of the shops, rent of the nearby shops in the

vicinity and non availability of the facilities in Bapu Bajar, both the

appeals deserve to be admitted and execution proceedings going

on against the defendants are required to be stayed.

On the other hand, Mr. K.K. Sharma, learned Sr.

Counsel appearing with Mr. Abhishek Mishra for the plaintiff

(4 of 6) [CFA-105/2020]

submits that in para no. 9 of the plaint, the plaintiff specifically

mentioned that the area of the suit shops is 1886 Sq. Ft. and and

836 sq. ft. respectively and rent of the shops was stated to be Rs.

70/- per sq. ft. and thus, the plaintiff claimed the standard rent at

Rs. 1,32,020/- per month and Rs. 58,520/- per month

respectively, but in the written statement, no specific denial was

made by the defendants that the area of the suit shops is not

1886 Sq. Ft. and 836 sq. ft. In support of this contention, he has

placed reliance on the judgment passed by the Hon'ble Apex Court

in the case of Jaspal Kaur Cheema and Another Versus

Industrial Trade Links and Others reported in (2017) 8 SCC

592.

Learned Sr. Counsel has drawn the attention of the

Court towards para 9 of the affidavit of Shri Sudhir Puri produced

in evidence by the plaintiff and submits that he made exactly the

same averments, as were made in the plaints. Mr. Kamlakar

Sharma, learned Sr. Counsel further submits that there is neither

any pleading nor any evidence to this effect on behalf of the

defendants. The written statements were filed by Dalu Ram and

Jetha Nand, partners, but the defendants neither appeared as a

witness themselves nor did any cross-examination from the

plaintiff's witness on this point. The valuation report (Ex.-5) has

not been duly proved, therefore, no reliance can be placed on the

said valuation report. Moreover the objection with regard to area

of the suit shop/s was not raised before the trial court and no

issue in this regard was framed by the trial court.

Since there was no pleading, evidence and argument

before the trial court with regard to size of the shop/s, such an

argument cannot be raised first time before this Court.

(5 of 6) [CFA-105/2020]

So far as the argument of learned counsel for the

defendants with regard to res-judicata, Mr. Kamlakar Sharma,

learned Sr. Counsel submits that as far as standard rent is

concerned, it can be re-determined under the Act of 1950 because

in the first instance, the suit for standard rent was filed in the year

1976. Thereafter the matter was compromised, a new rent note

was executed in the year 1978 and rent was enhanced.

He has drawn the attention of the Court towards the

findings of the trial court on issue no.3, wherein the trial court

noted that the defendants did not produce any document relating

to the purportedly previous instituted suit, written statement and

the judgment passed by the trial court.

Mr. Kamlakar Sharma, learned Sr. Counsel has drawn

the attention of the Court towards Section 6 of the Act of 1950

and submits that where for any reason, the rent agreed upon is

claimed to be low or excessive, the landlord or the tenant may

institute a suit in the lowest court of competent jurisdiction for

fixation of standard rent for any premises. He has also drawn the

attention of the Court towards second proviso of clause (b) of sub-

section (2) of Section 6 of the Act of 1950. He further submits that

the agreed rent was determined in the year 1978 and thereafter in

the year 2001, the suits for determination of the standard rent

were filed. In this view of the matter, the question of res-judicata

does not arise.

Mr. Kamlakar Sharma, learned Sr. Counsel further

submits that in the plaint, rental rate of the shops was stated to

be Rs. 70/- per sq. ft., but the learned trial court reduced it and

determined the standard rent @ Rs. 60 per sq. ft.

(6 of 6) [CFA-105/2020]

He further submits that so far as the argument with

regard to determining the standard rent from the date of filing the

suits is concerned, there are judgments to the effect that the

standard rent is to be determined from the date of application. He

further submits that sub-section (5) of Section 6 of the Act of

1950 gives a discretion to the trial court to fix the date from which

the standard rent is to be determined. No illegality whatsoever has

been committed by the trial court. All the findings of the trial court

are based on proper appreciation of the evidence. In support of

his contentions, he has placed reliance on the judgment passed by

the Coordinate Bench of this Court in the case of Dharamveer

Kaliya Versus Khem Singh & Ors. reported in 1982 (1) RCJ

He further submits that since the year 2019, the

defendants are not paying the standard rent, so determined by

the trial court irrespective of the fact that no interim order is

operating in their favour. Hence, no interim order is required to be

passed in favour of the defendants. He has referred the order

dated 19.12.2019 passed by this Court in S.B. Civil First Appeal

No. 713/2019 titled Smt. Parmeshwari Devi Sharma Versus

M/s. Saraogi Mansion Estate Private Limited.

Heard learned counsel for the parties.

The matter requires consideration. Hence, the appeals

are admitted.

Since the respondent-plaintiff is duly represented by its

counsel, hence fresh notice need not be issued.

(PRAKASH GUPTA),J

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