Skip to content


Smt. Kusumben Popatlal Vs. Mahendrakumar Parmananddas Popat - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR348
AppellantSmt. Kusumben Popatlal
RespondentMahendrakumar Parmananddas Popat
Cases ReferredPinjare Karimbhai Dedubhai v. Hariprasad
Excerpt:
- - zaveri is, therefore, well founded and must be accepted......learned district judge did not have the jurisdiction to reappreciate the evidence and to record a different conclusion on facts. the second contention which he has raised is that this is a case where there is no evidence whatsoever on the basis of which the standard rent of the premises in question can be fixed.6. in support of his first contention mr. zaveri has relied upon sub-section (3) of section 29 of the bombay rent act which provides as under:where no appeal lies under this section from a decree or order in any suit or proceeding...the district court may, for the purpose of satisfying itself that he decree or order made was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit.the revisional.....
Judgment:

S.H. Sheth, J.

1. The tenant filed in the Civil Court at Rajkot Misc. Application No. 356 of 1969 for fixing standard rent of the premises in his possession. The premises are situate in the city of Rajkot and consist of 2 rooms and a kitchen. The contractual rent of the premises is Rs. 125/- per month. The landlord denied the tenant's case that the contractual rent was excessive.

2. The learned trial Judge on appreciation of evidence dismissed the tenant's application on merits.

3. The tenant applied to the District Court at Rajkot for the revision of that orderunder Section 29(3) of the Bombay Rent Act. The learned District Judge allowed the revision application and fixed the standard rent of the premises in question at Rs. 75/- per month.

4. It is that revisional order which is challenged by the landlord in this revision application filed under Section 115 of the Code of Civil Procedure.

5. Mr. Zaveri appearing for the landlord has raised two contentions before me. His first contention is that the learned District Judge did not have the jurisdiction to reappreciate the evidence and to record a different conclusion on facts. The second contention which he has raised is that this is a case where there is no evidence whatsoever on the basis of which the standard rent of the premises in question can be fixed.

6. In support of his first contention Mr. Zaveri has relied upon Sub-section (3) of Section 29 of the Bombay Rent Act which provides as under:

Where no appeal lies under this Section from a decree or order in any suit or proceeding...the District Court may, for the purpose of satisfying itself that he decree or order made was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit.

The revisional jurisdiction which the District Court exercises under Sub-section (3) of Section 29 is limited to correction of errors of law. That is what, in my opinion, the expression 'according to law' used in Sub-section (3) of Section 29 connotes. Reappreciation of evidence and recording a different conclusion on facts are not matters which fall within the realm of errors of law. In taking this view, I am supported by the decision of the Supreme Court in Phiroze Bamanji Desai v. Chandrakcmt M. Patel and Ors. : [1974]3SCR267 .

7. In the instant case there was evidence of the tenant himself and the evidence of Dr. Doshi who is a tenant in one of the neighbouring properties. That was all the evidence which the tenant led. By leading the evidence of Dr. Doshi, he tried to show that the rents for similar premises in the neighbourhood or in the locality were much lower. The learned trial Judge did not accept that evidence. The finding which he recorded was a pure finding of fact. Therefore, there was no error of law which arose for the learned District Judge to correct and he exceeded his jurisdiction by reappreciating the evidence of the tenant and Dr. Doshi and accepting it. The first contention raised by Mr. Zaveri is, therefore, well founded and must be accepted.

8. The second contention which Mr. Zaveri has raised relates to the merits of the case and raises a question as to the method to be followed for fixing the standard rent of the premises. Sub-section (10) of Section 5 furnishes guidelines for the purpose. Clause (a) of Sub-section (10) of Section 5 provides that where the standard rent has been fixed by the Court and the Controller respectively under the Bombay Rent Restriction Act, 1939, or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1947 it is the standard rent. There is no evidence in the instant case to show that any such standard rent was fixed either by the Court or by the Controller. Clause (b) of Sub-section (10) of Section 5 provides that where the standard rent has not been so fixed then, subject to the provisions of Section 11, the standard rent of the premises would be the rent at which the premises were let on the first day of September 1940. In the instant case, there is no evidence to show at what rent the premises in question were let out on the first day of September 1940. Clause (b) of Sub-section (10) of Section 5 further provides that if the premises Were not let on the first day of September 1940, the rent at which the premises were last let before that day would be the standard rent. There is no evidence on record to show at what rent the premises in question were let before the first day of September 1940. Clause (b) of Sub-section (10) of Section 5 further provides that where the premises were first let after the first day of September 1940, the rent at which they were first let would be the standard rent. It is not in dispute before me that the premises in question had been in existence on the first day of September 1940. Before they were let to the tenant they were not let to any one else. Ordinarily the rent at which the premises were let to the tenant would, therefore, be the standard rent. Indeed it would be subject to the provisions of Section 11. Lastly, Clause (b) of Section (10) of Section 5 provides that, in any of the cases specified in Section 11, the rent fixed by the Court would be the standard rent.

9. Section 11 provides that the Court may fix the standard rent and permitted increases of the premises if it is in its opinion excessive. It further provides that in any one of the cases mentioned in Sub-clauses (i) to (iii) of Clause (b) of Sub-section (10) of Section 5, the Court has jurisdiction to fix the standard rent if there is no sufficient evidence to ascertain the rent at which the premises were let. In the instant case, the tenant upon whom the burden of proof lay, did not lead any evidence whatsoever to show at what rent the premises in question were first let after the 1st day of September 1940. The tenant was, therefore, required to lead other evidence to prove his case

10. He led his own evidence and the evidence of Dr. Doshi. The evidence of Dr. Doshi shows the rent at which the premises in his occupation were let out to him by his landlord. In my opinion, only the evidence of a comparable instance of rent charged in the neighbourhood or in the locality is relevant for the purpose of fixing the standard rent. Any other evidence of rents prevailing in the neighbourhood is totally irrelevant. I say so because it is extremely difficult for any Court to assume that two buildings constructed by two different landlords would be similar and identical in all respects in the context of the investments made by them. Though they may be situate in the neighbourhood of each other, their workmanship is likely to be different. The materials used by two landlords in constructing their buildings are likely to be different. The prices of materials which they have used for constructing their buildings are also likely to be different depending upon different points of time when they were constructed. If they were constructed at two different points of time the cost of construction of one is likely to be different from that of another. Similarly the prices of lands are also likely to be different depending upon different points of time when they were purchased. They are likely to be similar if they were purchased at or about the same time. Similarly there is no warrant for the court to assume that two buildings constructed by two landlords will be identical and similar in masonary, in carpentry and in providing facilities and amenities to their occupants. Similarly there may be considerations other than those of fair return on the investment made by a landlord which may have prevailed with him in fixing the contractual rent of the premises let out by him. One landlord may charge a fair or reasonable rent. Another may charge expropriatory or excessive rent arid a third may be charitable or benevolent in that behalf.

11. Unless, therefore, there is evidence to show that two premises were constructed by the same landlord in a single transaction or that they were constructed by two different landlords as a part of the same transaction, rent charged in respect of one cannot be made the basis for fixing the standard rent of another.

12. If in one building two different premises have been let out to two different tenants, the rent charged in respect of one of them can furnish evidence of a comparable rent for fixing the standard rent of another. Similarly the evidence of rent charged in respect of one building is relevant and can be adduced for fixing the standard rent of another if both were constructed in the same transaction or as a part of the same transaction irrespective whether they were constructed by one landlord or more if they are otherwise similar and identical in all respects.

13. I am therefore of the opinion that the rent charged in respect of neighbouring premises or premises situate in the same locality cannot ordinarily furnish the basis for fixing the standard rant of another premises. In my opinion, therefore, there was no legal or relevant, evidence whatsoever in the instant case upon which the learned District Judge could have relied for fixing the standard rent of the premises in question.

14. Since the premises in question had been in existence on 1st September 1940 and since they were let out for the first time to the tenant, the tenant could have discharged the burden of proof which lay upon him by producing cogent or expert evidence to show the cost of construction of the premises in question and the cost of land at the date when the premises were let out to him. If he had produced the expert evidence in the shape of a report of an engineer or an architect, he could have discharged the burden of proof which lay upon him.

15. He did not do so. He wanted the Court to fix the standard rent of his premises on his bare testimony and on the bare testimony of Dr. Doshi, a neighbouring tenant. It was a futile attempt on his part. Whether standard rent is fixed ex parts or otherwise, it must represent the fair return to the landlord on the investment made or believed to have been made by him. Assessment of cost of construction of a building is a technical matter. No amount of evidence given by persons who are not experts in the subject can help a tenant. The landlord can prove it by producing the account of the monies spent by him on constructing the building and in purchasing the land. The method of fixing the standard rent of one premises on the basis of the rents charged in the neighourhood or in the locality is, in my opinion, unscientific, illogical and arbitrary and must be rejected. The second contention which Mr. Zaveri has raised must, therefore, be upheld.

16. Mr. Vakil has argued that this revision application raises no jurisdictional error within the meaning of Section 115 of the Code of Civil Procedure. He has tried to oversimplify his proposition by arguing that whether a particular instance of rent charged in the locality or in the neighbourhood is comparable or not is a question of fact and that the finding recorded on such a question of fact cannot be interfered with. If the proposition was so simple as Mr. Vakil has tried to make out, I would have certainly dismissed this revision application. But this case has a deeper dimension because it raises the question relating to the nature of evidence which is required for fixing the standard rent of the premises which have been let out. In my opinion, the evidence led by the tenant is no evidence at all for the purpose for which it has been led. This is, therefore, a case of no evidence. Where the Court below has made an order or recorded a finding without any relevant evidence whatsoever it can be interfered with under Section 115 of the Civil Procedure Code. Mr. Vakil has tried to invite my attention to the decision of this Court in Pinjare Karimbhai Dedubhai v. Hariprasad III G.L.R. 529. The principle laid down in that decision has no application the facts of this case because it was not a case of no evidence.

For the reasons stated above, I allow this revision application, set aside the order made by the learned District Judge and, for the reasons stated in this judgment and not for the reasons stated by the Trial Court in its judgment, I restore the order made by the learned trial Judge.

17. Rule is made absolute with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //