Dismissed

M/S Indo Continental Hotels v. Shri Ishwar Singh and Ors.

Rajasthan HC8 Dec 2017CFA/776/2007

Case brief

AI extract

What is this about?

This judgment dismisses two connected first appeals regarding the fixation of standard rent for a property used as a hotel. The High Court upheld the trial court's assessment of Rs. 35,000 per month, rejecting the tenant's plea for additional evidence and the landlord's claim for enhancement.

What did the court decide?

Both appeals (for quashing and for enhancement of rent) were dismissed.

M/S Indo Continental Hotels Vs Shri Ishwar Singh and… — Specific Performance | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No. 776 / 2007

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M/S Indo Continental Hotels

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----Appellant

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Versus

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Shri Ishwar Singh And Ors

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----Respondent

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Connected With

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S.B. Civil First Appeal No. 16 / 2007 Ishwar Singh And Ors

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----Appellant ----Respondent

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M/S Indo Continental Hotel And

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Mr. Sarthak Rastogi for the defendant-tenant Mr. R.K. Daga for the plaintiff -landlord

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HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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08/12/2017

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S.B. Civil Regular First Appeal No. 776/2007

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has been filed by the defendant-tenant for quashing and setting aside the Judgment and Decree dated 5.12.2006 passed by learned Addl. District Judge, No.4, Jaipur City, Jaipur (‘the learned court below’ for short) and S.B. Civil Regular First Appeal No. 16/2006 has been filed by the plaintiffs-landlord against the Judgment & Decree passed by the learned court below

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for quashing and setting aside the same as also to

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enhance the standard rent upto Rs.50,000/- per month as per the pleadings of the suit. Since in both the first appeals, the facts are common as the same arise out of common Judgment & Decree, hence both the appeals are being decided by this common Judgment.

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Brief facts of the case are that on 7.5.2002 the plaintiffs-landlord filed a civil suit mentioning therein that they are having a joint property measuring 197 & 1/3 square yard (details mentioned in the suit) situated behind the Central Bank Building, Sansar Chand Road, Jaipur. The plaintiffs-landlord averred in the suit that the aforesaid property was in the name of Smt. Pritam Kunwar widow of Shri Nahar Singh (mother of plaintiffs-landlord No.1 and 2) and Smt. Indra Kumari d/o Sukhdev Singh. Smt. Pritam Kunwar died on 24.11.1990 and therefore, the plaintiffs No.1 and 2 being the legal heirs, became the owner of the part of the property /land belonging to Smt. Pritam Kunwar. The plaintiffs-landlord further averred that on 23.12.1972 the defendants-tenant rented the property, as mentioned in the suit and since 01.01.1985, an amount of Rs.1100/- p.m rent is being paid by the defendants-tenant. The plaintiffs-landlord further averred that the property is situated at an important centrally located place and the same has got

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its high commercial value which is near Government Hostel, Sansar Chand Road, where the estimated cost of the land is very high @ Rs.30-40 thousand per square yards. The plaintiffs-landlord further averred that the Public Works Department as per the market trend and assessment, assessed the standard rent of the aforesaid property/land to the tune of Rs.50,000/per month. Thus, the plaintiffs-landlord prayed for declaration of standard rent @ Rs.50,000/- p.m.

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The defendants-tenant filed written statement of denial to the suit.

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The plaintiffs-landlord filed counter to the written statement and reiterated the averments made in the suit.

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On the basis of pleadings of both the parties, the learned court below framed four issues and additional issue as No.3A was also framed.

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The plaintiffs-landlord in order to substantiate their case submitted affidavits of PW1-Maharaj Ishwar Singh and PW2-B.L. Gupta and also got exhibited two documents.

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The defendants-tenant in order to substantiate their case, submitted affidavit of DW1-H.H. Roopani and got exhibited four documents.

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The learned court below after hearing both the parties passed the impugned Judgment & Decree by

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which the civil suit filed by the plaintiffs-landlord was partly allowed and declared the standard rent @ Rs.35,000/- p.m from the date of filing of the suit.

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The defendant-tenant aggrieved with the impugned Judgment and Decree dated 5.12.2006 passed by learned court preferred aforementioned civil first appeal for quashing and set aside the same and the plaintiffs-landlord aggrieved with the impugned Judgment & Decree preferred instant first appeal for enhancement of standard rent to the tune of Rs.50,000/- p.m. in-stead of Rs. 35,000/- per month.

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Learned counsel appearing for the defendanttenant argued that the learned court below has erred in determining standard rent on higher side whereas the learned counsel appearing for the plaintiffslandlord has argued that the learned court below has erred in determining the standard rent to the lower side i.e to the tune of Rs.35,000/- p.m.

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Learned counsel appearing for the plaintiffslandlord placed reliance upon the valuation report (Ex.1) submitted by the plaintiffs-landlord.

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On the contrary learned counsel appearing for the defendants-tenant argued that unfortunately the defendants-tenant could not produce any valuation report before the learned court below. Counsel further submitted that along-with the appeal filed by him he

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has submitted an application under Order XLI Rule 27 CPC for taking documents such as valuation certificate /report dated 25.03.2007, sale-deeds dated 21.08.2003 and 21.8.2006 on record. Counsel argued that the authorized Valuer assessed the estimated market value of the property/land as Rs.12,36,000/for the reasons mentioned in the valuation report as advantages/ disadvantages of site, whereas in the valuation report (Ex.1) submitted by the plaintiffslandlord, the market value of the rented property was shown in the tune of Rs. 48,99,609/- which is totally contrary and has been prepared in improper manner. Therefore, the valuation report annexed by the defendant-tenant is very much necessary for proper adjudication of the matter. Counsel further argued that the copies of the sale-deeds dated 21.8.2006 and 21.8.2003 annexed with the application reveal that the valuation /price of the property /land shown in the valuation report submitted by the plaintiffs-landlord is totally illegal and contrary to the market value in comparison to other properties situated in the same area. Therefore, the aforesaid documents are necessary for the purpose of determination of the standard rent/ fair rent.

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Per contra counsel appearing for the plaintiffslandlord argued that the provisions of Order XLI Rule 27 CPC cannot be resorted to by the defendants-

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tenants for filling up the lacunae more so when there is no pleadings and the genuineness of the documents is not subject to challenge. Counsel argued that it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to requirements of Order XLI, rule 27, CPC. Additional evidence cannot be permitted at the appellate stage, in order to enable another party to remove certain lacunae present in that case. The aforesaid view has been taken by the Madras High Court in the case of Pappaymmal v. Palanisamy, AIR 2005 Mad. 431 .

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Heard learned counsel appearing for the respective parties, perused the impugned Judgment and Decree passed by the learned court below and I have also gone through the record of the case.

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In the matter at hand it is not in dispute that the controversy regarding applicability of the Old Act and the Rajasthan Rent Control Act, 2001 (New Act) has been set at rest by the Larger Bench of this Court in the matter of Bhag Chand Vs. Additional District

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Judge No. 5, Kota & Ors. (S.B. Civil Writ Petition No. 7289/2004) decided on 4^th May 2009 wherein it has been held that ‘by virtue of Section 32(3(a) of the New Act, all the suits, applications and other proceedings relating to the fixation of the standard rent and provisional rent under Sections 6 and 7 of the

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Old Act would be governed by the provisions of the Old Act despite coming into force of the New Act and not by the provisions of Sections 6 and 7 of the New Act’.

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The plaintiffs-landlord have produced the valuation report (Ex.1) and in evidence stated that the price of the property/land in nearby area was to the tune of Rs.30,000-40,000/- per sq. yards. The property /land in dispute is situated near Government Hostel, Sansar Chand Road where the offices of other prominent companies, banks and hotels are situated and the aforesaid property/ land is situated in the middle of the Jaipur City where the prices and rents of the property are highest.

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PW2-B.L. Gupta, Chartered Engineer and

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Registered Valuer deposed that he inspected the site and prepared the valuation report (Ex.1) as per the price of the immovable property and trend for determination of the rent. This witness further deposed that the property in dispute is having worth of approx. Rs. 48,99,609/- and the rent thereof should have been minimum Rs.36,700/- per month. In defence the defendant-tenant did not produce any evidence on record to rebut the averments made in the valuation report (Ex.1) filed by the plaintiffslandlord on record.

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Looking to the nature of the documents which

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are annexed with the application filed by the defendant-landlord under Order XLI Rule 27 CPC, the genuineness of the documents is subject to challenge and after decision of the trial court the documents have been subsequently procured by the appellant/defendant. Order XLI Rule 27 CPC cannot be resorted to by a party for filling up the lacunae. The learned court below on the basis of material available on record has rightly determined the standard rent.

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The definition of the term “premises” as contained in Section 3(8) of the Act is in wide terms and includes not only gardens, grounds and outhouses, if any, appurtenant to a building or part of a building but also furniture supplied by the landlord for the tenant’s use and any fittings, affixed to the building, thus indicating that the legislature was providing for all kind of letting. The Rent Control Authorities are empowered to determine rent which is fair and reasonable. Indisputably, appellant/ defendant- Company is running a hotel in the name and style of M/s. Man Singh Hotels and Resorts Ltd. and the tenanted premise is also used as part of the hotel. Thus, the valuation report submitted by the appellant has no relevance for the purpose of advantages / disadvantages of site. The application filed by the appellant/defendant-M/s. Indo Continental Hotels & Resorts, under Order XLI Rule 27 CPC for

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taking documents on record is bereft of merit and accordingly stands rejected.

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The plaintiff/landlord has specifically pleaded that the defendant company running business of Hotel and Resorts. The Court below has determined the standard rent after considering the market value of the property and suitability of its use.

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I do not find ground to interfere with the impugned Judgment and Decree passed by the learned court below.

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In view of above, both the appeals i.e the appeal filed by the plaintiffs-landlord for enhancement of standard rent and, the appeal filed by the defendant-tenant for quashing and setting aside the impugned judgment and decree, are without any substance and accordingly stand dismissed.

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(GOVERDHAN BARDHAR),J.

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Sharma NK

M/S Indo Continental Hotels v. Shri Ishwar Singh and Ors.

Case brief

What is this about?

What did the court decide?

M/S Indo Continental Hotels v. Shri Ishwar Singh and Ors.

Case brief

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