S. Abdul Nazeer JUDGMENT
S. Abdul Nazeer, J.
1. Leave granted.
2. In this appeal, the Appellant has questioned the legality and correctness of the judgment and order in S.B. Civil Second Appeal No. 186/1998 dated 08.08.2016, whereby the High Court of Judicature for Rajasthan (Jaipur Bench) has allowed the appeal and set aside the judgment and decree of the courts below and remanded the suit to the trial court for fresh disposal in accordance with law.
3. The Appellant-Plaintiff is the landlord of the suit Schedule premises, whereas the Defendant is the tenant. The Plaintiff filed Suit No. 357 of 1984 for eviction of the Defendant from the suit Schedule premises on the ground of non-payment of rents Under Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the "Rent Act").
4. According to the Plaintiff, the Defendant stopped paying monthly rent from 01.07.1981 to 30.06.1984. The Defendant filed the written statement contending that he has been paying the rent regularly till 31.05.1983 to one Sh. Onkar Singh, who is a close relative of the Plaintiff. Onkar Singh was issuing rent receipts on payment of the rent. The Defendant also claims to have deposited the rent up to 31.12.1989 in the court. Moreover, it is claimed by the Defendant that the Plaintiff with an intention to get the premises vacated and let out the same to others on increased rent has been harassing the Defendant and his other tenants. He prayed for dismissal of the suit.
5. The trial court vide order dated 20.7.1995 decided the matter in favour of the Plaintiff. The Defendant was directed to vacate the Schedule premises and make payment of arrears of rent. The Defendant filed an appeal against the said order. However, the first appellate court vide order dated 28.02.1998 held that since the matter was proceeded ex parte due to the absence of the Defendant, determination of rent would be an empty formality and hence, the trial court has not committed any error in not determining the provisional rent Under Section 13(3) of the Rent Act. The first appellate court accordingly upheld the decree. The Defendant filed a second appeal challenging the said order. The High Court vide order dated 08.08.2016 has held that Section 13(3) of the Rent Act is mandatory in nature so far as provisional determination of the rent is concerned and without determination of rent no decree of eviction on the ground of default can be passed. The High Court remanded the suit to the trial court and directed the trial court to decide the matter afresh within six months from the date of receipt of the judgment. As noticed above, the Defendant has questioned the legality and correctness of the said judgment in this appeal.
6. Learned Counsel for the Appellant-Plaintiff submits that the Defendant intentionally did not appear before the trial court to defeat the process of the court and hence the court passed the order to proceed ex parte against the Defendant. Determination of rent would be an empty formality, which was being heard ex parte due to the intentional absence of the Defendant. The intention of the amended Section 13(3) of the Act was to protect the interest of the landlord in the interim period when the suit for eviction is pending. Therefore, the High Court was not justified in remanding the matter to the trial c........