CR No.4673 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. * * * CR No.4673 of 2010 (O&M) Decided on 18.5.2011 Devinder Kumar and another -- Petitioners vs. Abhilash Kapoor and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present Mr.Sudarshan Goel, Advocate, for the petitioners Mr.Arun Palli, Sr.Advocate,with Mr.Divanshu Jain,Advocate,for the respondents Rakesh Kumar Jain, J, (Oral) Landlords are in revision against the order dated 25.1.2010 passed by the Rent Controller, Chandigarh, by which their application for assessment of provisional rent has been decided, wherein the rate of rent has been assessed @ `500/- per month. Brief history of the case is that the demised premises was once owned by Baldev Kaur daughter of Kulwant Singh, who had inducted M/s.Ram Lal Kapoor and Sons as tenant on rent @ `410/-per CR No.4673 of 2010 (O&M) 2 month which was further enhanced to `500/- per month. In a part of the same premises, the landlords had inducted M/s.Kapoor Trading Company @ `125/- per month. The original land owner sold the Bay Shop to Gyan Singh Arora and Kulbir Singh Arora by way of a sale deed dated 20.10.1972, who further sold it to the present appellants Devinder Kumar and Ajit Pal Singh through registered sale deed dated 28.10.2005. The present revision petitioners filed the eviction petition against Abhilash Kapoor, M/s Ram Lal Kapoor & Sons and M/S.Kapoor Trading Company from Bay Shop No.11, Sector 27- D,Chandigarh, inter alia, on the ground of non-payment of rent @ `9000/- per month w.e.f. 28.10.2005 and also claimed recovery of arrears of rent from respondent Nos.1 and 2 on the basis of mutual agreement between the petitioners and the previous owners for the period from 1.5.2004 to 27.10.2005. Arrears of rent tendered by respondent Nos. 1 and 2 namely Abihlash Kapoor and M/s. Ram Lal Kapoor were found to be insufficient and invalid and tender was accepted under protest. At this stage, learned counsel for the landlords has submitted that they had filed a suit for seeking eviction of the tenants on the ground of non-tendering the rent to the owners/petitioners which is alleged to be short. The eviction petition was maintained on the ground of personal necessity, subletting and materially impairing the value and utility of the demised shop. In the first petition referred to above, the question arose with regard to assessment of provisional rent to be tendered by the CR No.4673 of 2010 (O&M) 3 tenants to the landlords which was claimed @ `9000/- per month whereas the tenants were claiming it that they are liable to pay the rent @ `500/- per month. The Rent Controller vide his order dated 12.2.2008 assessed the provisional rent to be paid by respondent Nos.1 and 2, namely Abhilash Kapoor and M/s. Ram Lal Kapoor and sons @ `500/- per month w.e.f. 28.10.12005 till 31.1.2008 and by respondent No.3. i.e. M/s. Kapoor Trading Company @ ` 125/- per month w.e.f. 28.10.2005 till 31.1.2008 along-with interest @ 6% and costs of `1000/-. In order to arrive at the figure of ` 500/- as provisional rent, the learned Rent Controller had observed that “ in all these documents placed on record by the learned counsel for the respondents, the rate of rent has been shown as ` 500/-per month. The learned counsel for the petitioner has stated that rate of rent was `9000/- per month, but there is no rent receipt, nor any income tax return or any other document placed on record by the learned counsel for the respondents to show that the present tenants had paid the rent @ `9000/- per month to Gyan Singh Arora and Kulbir Singh Arora”. It is pertinent to mention here that order dated 12.2.2008 was not challenged by the learned counsel for the respondents by way of any revision before this Court and the same has become final between the parties as the first petition is pending trial in which it is yet to be decided as to 'whether rate of rent is ` 9000/- per month as alleged by the landlords or `500/- per month as claimed by the tenants ? CR No.4673 of 2010 (O&M) 4 During the pendency of the first eviction petition, the landlords have come up with another eviction petition on the ground of non-payment of rent w.e.f. January ,2009 till the filing of the eviction petition. During the pendency of the first eviction petition, the landlords have filed an application for assessment of provisional rent @ `95,000/-per month and relied upon two documents, namely lease deed in respect of adjoining single storey Bay Shop No.11, Sector 27- D,Chandigarh measuring 81.26 square yards, which has been let out for `95,000/- per month and also report of Sh. S.C.Khanna, Superintending Engineer (retired) dated 1.12.2008, who has assessed as an evaluer the market rental value of shop in dispute @ `95,000/- per month. The Rent Controller, however, assessed the provisional rent at the same rate of `500/- per month w.e.f. 1.1.2009 till January 2010 (13 months) along-with 6% interest and costs of ` 1000/- . It is admitted that the rent which was earlier assessed in the first eviction petition and the rent which has now been assessed on 25.1.2010 has been tendered on 26.2.2010 as ordered by the Rent Controller. Now the question arises as to 'whether the Rent Controller could have assessed the rent @ `95,000/- per month in the subsequent proceedings in the face of the order of the Rent Controller dated 12.2.2008 in the first petition which is pending for adjudication. In support of his submission, learned counsel for the petitioners has relied upon a decision of the Supreme Court in the case of Seshambal (dead) Through L.Rs Vs. M/s. Chelur Corporation, Chelur CR No.4673 of 2010 (O&M) 5 Building & Ors. AIR 2010 Supreme Court 1521 to contend that the Court can assess the provisional rent on the basis of guess work on the material which is provided at that stage. However, learned counsel for the respondents submits that the Rent Controller can assess the provisional rent which is admitted by the parties or which is proved on record or paid by the tenant and accepted by the landlord. But in the present case, the landlords have even failed before the Rent Controller on 12.2.2008 that the rent was paid @ ` 9000/- per month by the tenants because it has been observed by the Rent Controller that the landlords have failed to produce on record any receipt, income tax return or any other document to show the rate of rent @ `9000/-per month which is paid by the tenants to the vendors of the landlords, namely Gyan Singh Arora and Kulbir Singh Arora. In those circumstances, the Court had assessed the rent @ `500/- per month which has been held to be paid by the tenants to the vendors of the landlords. However, the order dated 12.2.2008 passed by the Rent Controller has not been reversed till date and the matter is sub-judice before the Rent Controller to find out as to what is the rate of rent between the parties. In view of the above, I do not find any illegality or irregularity in the impugned order passed by the Rent Controller. Hence, this revision is hereby dismissed . No costs. 18.5.2011 (Rakesh Kumar Jain) RR Judge CR No.4673 of 2010 (O&M) 6