1. This revision application has been filed against the appellate order passed by the Civil Judge, Bikaner on November 22, 1978.
2. The facts, which have given rise to this revision application, briefly are that a suit for ejectment was filed by the plaintiff opposite party on Oct. 21, 1970 in the court of Munsif, Bikaner on the grounds of defaults in payment of rent and bona fide personal necessity for the suit promises and of nuisance. The defendant could not be served with summons for almost a pried of seven years for some reason or the other But on July 12, 1977 his counsel appeared before the trial court and a copy of the plaint was delivered to him On August 9, 1977, the defendant filed his written statement in which he denied the existence of the relationship of landlord and tenant between the. parties and claimed that he hid taken the premises on rent from one Smt. Magi, widow of Chaturbhuj and after the death of Smt. Magi he did not know who was his landlord The trial court, by its order dated February 9, 1978 held that as the defendant disputed the relationship of lard lord and tenant between him and the plaintiff, a determination of arrears of rent under the provisions of Sub-section (3) of Section 13 of the rajasthan premises (control of rent & eviction) act, 1950 (hereinafter referred to as "the act") could not be made until the relationship of landlord and tenant between the parties is established Thus, according to the trial court, it was not necessary in such a suit to determine the arrears of rent and interest under Sub-section (3) of Section (3) of the Act, where the defendant denied the relationship of landlord and tenant between the parties to the suit. The view of the trial court appears to be that Sub-section (3) of Section 13 of the Act would be applicable only to such cases in which the tenant admitted the relationship of landlord and tenant between the parties.
3. The plaintiff filed an appeal against the order passed by the trial court before the Civil Judge. Bikaner who by his order dated November 22, 1978 held that for the application of Sub-section (3) of Section 13 of the Act it was not necessary that the relationship of landlord and tenant between the parties should either be admitted or established, but if a suit is filed on the basis that the plaintiff was the landlord and the defendant was the tenant and existence of the condition of Section 13(1)(a) of the act is alleged, then the determination of rent under Sub-section (3) of Section 13 of the Act has to be made. The appeal of the plaintiff was accepted and the trial court was directed to determine the amount of arrears of rent and interest in accordance with the provisions of Sub-section (3) of Section 13 of the Act.
4. In this revision application, three questions have been raised. The first question argued in this case is that as the suit was pending since 1970 the provisions of Sub-section (3) of Section 13 as amended by the Amending Act of 1975 could not be applied to the present suit, but the suit should be governed by the provisions of the Act as they existed on the date of the institution of the suit It is true that ordinarily a suit should be governed by the laws prevailing at the time of its institution but this proposition cannot be extended to procedural laws. As the provisions of Sub-section (3) of Section 13 of the Act are procedural in nature, they would be applicable to ail suits in which a written statement was not filed before the Amendment Act of 1975 came into force or the first date of hearing was fixed after the aforesaid amendment was brought about in the Act Although the suit in the present case was filed in the year 1970, Yet the written statement was filed on August 9, 1977, after the Amendment Act of 1975 had already come into force. The provisions of Sub-section (3) of Section 13 of the Act direct the trial court to provisionally determine the amount of arrears of tent and interest on the first date of bearing of the suit or on any other date, as the court may fix for that purpose, which should not be mote than three months after the filing of the written statement and such date should be before the framing of issues. In the present case, the issues have not been framed as yet. After the written statement was filed on August 9, 1977, the trial court should have proceeded to determine the amount of arrears of rent and interest, under the provisions of Sub-section (3) of Section 13, within three months of the finding of the writ ten-statement bat it failed to do so on the alleged ground that the aforesaid provisions was not applicable to cases where the defendant in his written statement denied the relationship of landlord and tenant between the parties In the aforesaid circumstances, the provisions of Sub-section (3) of Section 13 are clearly attracted to the present case, as even the written statement was not filed in this case before the Amending Act of 1975 came into force.
5. The second question which arises in this revision application is as to whether an appeal day under Section 22 of the Act before the learned Civil Judge The argument of the defendant is that an appeal lies under Section 22 of the Act only if an order is passed under the Act. In my view the order determining the amount of arrears of rent under Sub-section (3) of Section 13 of the Act will necessarily be an order passed under the provisions of the Act and an order refusing to determine such arrears of rent under the very same provision must also be an order passed under the provisions of the Act. It is only because of the existence of the provisions of Sub-section (3) of Section 13 of the Act that it became necessary for the trial court to decide as to whether arrears of rent etc. should fee determined or not in the suit. If the order passed by the Muasif would have been in favour of the plaintiff, determining the amount of arrears of rent and interest thereon, then it would certainly have been appealable under Section 22 of the Act by either of the parties But if while deciding the said question the trial court passed an order refusing to deter mice the amount of arrears of rent under Sub-section (3) of Section 13 of the Act, it cannot be held that an appeal shall not lie under Section 22 of the Act on the ground that an order has not been passed under the provisions of the Act In my view, when the question raised before the trial court was as to whether the amount of arrears of rent should be determined under Sub-section (3) of Section 13 of the Act or not, then the decision thereof either was could be subject matter of appeal under Section 22 of the Act, as the decision of such a question was a matter arising out of the provisions of the Act I, therefore, hold that the appeal before the learned Civil Judge was maintainable.
6. The third question which arises in this case and which was the basis of the order passed by the trial court is that in case the tenant denies the relationship of landlord and tenant then whether the court could proceed to determine the amount of arrears of rent etc. under Sub-section (3) of Section 13 of the Act. That question has recently been decided by a learned Single Judge of this Court in Ganesh Narain v. Rancher Das and Anr. 1978 W.L.N. 331 & it has been held in that case that:
Therefore, before making an order for the determination of the amount of rent and interest thereon for a direction to deposit in court or for paying to the landlord, it is not necessary that the court should first determine the question of relationship of landlord and tenant between the parties by holding an enquiry into the matter As stated above, the determination is to be made merely on the basis of the material which has been placed on record upto that stage by the parties. The determination so made is provisional in character and it does not affect the final rights of the parties.
7. The determination under Sub-section (3) of Section 13 has to be, made either on the first dale of hearing of the suit or at any date at least before the issues are framed in the suit and as such determination is merely provisional in nature as such no enquiry, and much less, a summary enquiry, is contemplated for that purpose. If the court, on the basis of the averments made in the plaintiffs of the view that the suit is one for eviction of a tenant on the ground that the tenant had neither paid nor tendered the amount of rent due from him for six months and has been filed by a person who claims himself to be the landlord of such premises, then there is nothing contained in the provision of Sub-section (3) of Section 13 or any other provision of the Act to preclude the court from proceeding with the determination of the amount of arrears of rent and interest thereon under the aforesaid provision's There cannot be a decision of the question of relationship of landlord and tenant without making an enquiry which includes the taking of evidence, both, documentary as well as oral, and that cannot take place even before the issues are framed in the suit. As already mentioned above, Sub-section (3) of Section 13 of the Act is operative at the stage of the first date of hearing of the suit or such date as may be fixed by the trial court and with should not be later than three months from the date of the filing of the written statement but which should be before the framing of the issues. In such circumstances, it is clear from the very provisions of Sub-section (3) itself, that no enquiry of any sort not even a summary enquiry, is envisaged at such a stage when the determination requisite under Sub-section (3) of Section 13 if to be made. If the plaint contains a reasonable recital that a relation ship of landlord and tenant existed between the plaintiff and the defendant and also that the tenant was a defaulter in payment of the rent within the meaning of Sub-section (3) of Section 13(1) of the Act, then the provisions of Sub-section (3) of Section 13 is at once attracted, without anything more.
8. I, therefore, uphold the order passed by the Civil Judge, Bikaner and the revision application is consequently dismissed but without any order as to costs. The record of the trial court should be returned to that court immediately.