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Deepchand and Sons Vs. Mohan Das and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 244 of 1974
Judge
Reported inAIR1979Raj35
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 2(2) and 3
AppellantDeepchand and Sons
RespondentMohan Das and anr.
Advocates: K.K. Sharma, Adv. for; B.S. Sharma, Adv.
DispositionPetition allowed
Cases ReferredSadhusingh S. Mulla Singh v. Dist. Board
Excerpt:
.....the reliefs the court will take these facts into consideration. - the first appellate court totally failed to consider the aforesaid definition of 'premises' as given in the act. it is an entirely different thing that the said shop was carved out of a bigger shop, which might have been in existence even earlier as well......section 3 of the act, it is only the shop which was let out to the plaintiff-tenant, which was the suit premises in the present case. the definition of 'premises', reproduced above, makes it amply clear that even a part of a building, which is intended to be let out separately for commercial use or for use as a residence, constitutes a 'premises' within the meaning of section 3 clause (v) of the act. the first appellate court totally failed to consider the aforesaid definition of 'premises' as given in the act.5. the shop, which was let out to the plaintiff-tenant was not in existence earlier to feb. 1970 and it was let out for the first time to him in april 1970. thus, the premises, namely, the shop in question was a new construction for the purposes of sub-clause (e) of the proviso to.....
Judgment:

Dwarka Prasad, J.

1. The short question of law that arises in this revision application is as to whether the suit filed by the tenant for fixation of standard rent was maintainable or not? The facts leading to the filing of the present revision petition may be briefly stated: There was a big shop belonging to the plaintiff applicant situated in the city of Kota. In Feb. 1970, the shop was vacated by the erstwhile tenant thereof and thereafter the landlord constructed partition walls dividing the one big shop into four smaller shops and fixed separate doors on each one of these four shops. The plaintiff opposite party took one of these four shops on rent from the plaintiff landlord in April 1970, on a monthly rent of Rs. 175, Sometime after taking one such shop on rent, the tenant filed a suit for fixation of standard rent in the Court of Additional Munsif, alleging that the bigger shop, which now consisted of four separate shops, was earlier rented out to Hemandas Liladhar on a monthly rent of Rs. 71 and that should be considered as the basic rent of the premises in dispute. The landlord defendant took an objection in his written statement that the suit was not maintainable because the premises which were constructed on or after 1st June, 1951 were exempted from the application of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act'), for a period of seven years from the date of such completion. The trial court accepted the contention of the landlord defendant and held that as the shop in dispute was constructed in April 1970, the Act was not applicable to it and the suit for fixation of standard rent thereof was not maintainable. Thus, the plaintiff's suit was dismissed on the aforesaid preliminary ground.

2. The plaintiff-tenant filed an appeal, which was heard by the Additional Civil Judge, No. 1, Kota. The appellate court by its order dated Feb. 12, 1974 took the view that as the entire earlier construction was not demolished and merely some structural changes were made, the same could not be termed as new construction within the meaning of Sub-clause (e) of the proviso to Sub-section (2) of Section 2 of the Act, The appeal was, therefore, allowed as it was held that the suit was maintainable and the case was remanded to the trial court for decision of the remaining issues, after taking evidence of the parties. It is against this order that the present revision application has been preferred in this Court. The relevant provisions, with which I am concerned in this case, may be reproduced for ready reference:

'Section 2 (2). Provided that nothing in the Act shall apply:

(a) to (d) x x x

(e) to any premises the construction of which was completed on or after the 1st June, 1951 for a period of seven years from the date of such completion.'

3. It may also be useful here to refer to the relevant portion of the definition of 'premises' contained in Clause (v) of Section 3 of the Act, which runs as under:--

'3 (v) 'premises' means

(a) x x x x

(b) any building or part of a building (other than a farm building) let or intended to be let for use as a residence or for commercial use or for any other purpose, includingX X X X X X'

4. In the present case, the facts are not in dispute. Formerly there was one big shop, which in Feb. 1970 was converted into four smaller but separate shops by raising partition walls and putting shutters on each such smaller shop. One of these four shops, which thus newly came into existence, was let out to the plaintiff-tenant on a monthly rent of Rs. 175. Now, considering the definition of 'premises', as contained in Sub-clause (v) of Section 3 of the Act, it is only the shop which was let out to the plaintiff-tenant, which was the suit premises in the present case. The definition of 'premises', reproduced above, makes it amply clear that even a part of a building, which is intended to be let out separately for commercial use or for use as a residence, constitutes a 'premises' within the meaning of Section 3 Clause (v) of the Act. The first appellate court totally failed to consider the aforesaid definition of 'premises' as given in the Act.

5. The shop, which was let out to the plaintiff-tenant was not in existence earlier to Feb. 1970 and it was let out for the first time to him in April 1970. Thus, the premises, namely, the shop in question was a new construction for the purposes of Sub-clause (e) of the proviso to Sub-section (2) of Section 2 of the Act, as it speaks of a construction of the 'premises'. It is the admitted case of the parties that the shop, which was let out to the plaintiff-tenant was not in existence earlier as such shop and, thus, it must be held to be a newly constructed shop. It is an entirely different thing that the said shop was carved out of a bigger shop, which might have been in existence even earlier as well. The bigger shop, which was earlier let out to Hemandas Liladhar is no longer in existence, as the same now constitutes four separate shops, each of which was capable of being let out independently as a 'premises'. Learned counsel for the petitioner relied upon a decision of the Punjab High Court in Sadhusingh S. Mulla Singh v. Dist. Board, Gurdaspur, AIR 1962 Punj 204, wherein it has been held that the construction and reconstruction are interchangeable terms and it cannot be said that a reconstructed building can never be held to be a constructed building.

6. It will be a question of fact in each case as to whether the building which has now been let out, is newly constructed or not, even if it is part of the building, which has been in existence earlier or the same has been carved out therefrom. It cannot be said that construction of a new building can only be brought about if a building is put up which did not at all exist earlier. But in case an existing building is rebuilt, the reconstruction may, in the exigencies of a particular case, amount to construction. If in a big hall new walls are constructed and new premises are carved out in the shape of separate shops or rooms, which are capable of being let out separately, then such a reconstruction may amount to construction within the meaning of the exemption clause referred to above. If the essential character of the building remains to be the same then, in spite of structural changes made therein, reconstruction may not amount to a fresh construction. But If the nature of the premises is changed, then such a reconstruction may amount to a new construction. It may not be necessary in each case that the old building should be entirely pulled down and a new building be constructed from a scratch in place thereof, but if some of the old existing walls are made use of while reconstructing the premises and what comes into existence after such reconstruction or construction are new premises, then such premises may be held to be new construction within the meaning of the exemption clause.

7. The facts of the present case disclose that four separate independent shops have now come into existence, though they may be situated at the same place where one single shop existed earlier and it might be that some of the old walls of the bigger shop might have been utilized while constructing the four new shops, yet I have no hesitation in holding that each shop, which is capable of being separately let out, is a 'premises' as defined in Clause (v) of Section 3 of the Act and is a new construction within the meaning of the exemption clause contained in the proviso to Sub-section (2) of Section 2 of the Act. The trial court was, therefore, right in holding that the premises were exempted from the purview of the Act and the suit was not maintainable.

8. It may, however, be observed that in 1975 the Act has been further amended by the Rajasthan Premises (Control of Rent & Eviction) Amendment Act, 1976 (Act No. XIV of 1976) and the exemption clause contained in the proviso to Sub-section (2) of Section 2 of the Act, has been substituted by an entirely new provision, whereby the exemption earlier granted to new constructions for a period of seven years from the date of such construction has been taken away by the Legislature. In this view of the matter, a fresh suit certainly appears to be maintainable by the plaintiff tenant for fixation of standard rent, after the amendment of the Act by the Amending Act No. XIV of 1976. Moreover, by now seven years have also elapsed since the new construction was made in the year 1970 and as such also a fresh suit for fixation of standard rent is maintainable now. But the suit as instituted in the year 1970 was not maintainable for the reasons enumerated above.

9. In the result, the revision petition is allowed, the order passed by the learned Additional Civil Judge, No. 1, Kota dated Feb. 12, 1974 is set aside and the decree passed by the Additional Munsif No. 5, Kota dated Feb. 27, 1973 is restored with the effect that the plaintiff's suit for fixation of standard rent is dismissed as not maintainable. In the circumstances of the case, the parties are left to bear their own costs of the proceedings in this Court.


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