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The Rayala Corporation (Mad) Ltd. Vs. Syed Bawkar and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 270 to 274 of 1956
Judge
Reported inAIR1957Mad385
ActsMadras Buildings (Lease and Rent Control) Act, 1949 - Sections 4(2) and 17(2); Code of Civil Procedure (CPC) , 1908; Madras Buildings (Lease and Rent Control) Rules, 1951 - Rule 24
AppellantThe Rayala Corporation (Mad) Ltd.
RespondentSyed Bawkar and Co. and ors.
Appellant AdvocateV.C. Gopalaratnam and ;L.V. Krishnaswami Iyer, Advs.
Respondent AdvocateV. Thyagarajan and ;M.A. Ghatala, Advs.
Excerpt:
madras building (lease and rent control) act (act xxv of 1949), sections 4 and 12-e, and rule 24--controller--power of--to issue summonses to witnesses other than public servants--if can be issued--fixation of fir rent--basis for ; the summonses referred to in rule 24 cannot be restricted to the respondents in an application and to public servants under section 12-e. rule 24 (2) contemplates the issue of summonses to private witnesses at the instance of the parties, and sub-rule (2) authorizes the controller or the appellate authority to require the attendance of witnesses and the production of documents, and such authority can be found in sub-rule 7. the expression 'require and attendance' is wide enough to include requiring by summoning. ; for fixation of fair rent, no doubt there is..........originally before govinda menon j. who made the following order ;"post before a bench whether the rent controller has any power inherent or otherwise to summon witnesses."counsel in this case have not been able to draw our attention to any decided case, reported or unreported, dealing with this question. we are therefore left with the relevant provisions of the act and the rules framed under the act.2. the applications in question are under section 4 of the madras buildings (lease and rent control) act, 1949, for fixation of fair rent. but the same question would arise even as regards applications under other sections of the act. it is obvious that though generally controllers have been personal belonging to the judicial service they are not courts and therefore the proceedings before.....
Judgment:
1. Tile only question which demands consideration from us in this batch of civil revision petitions is whether the Rent Controller has not the power to summon witnesses other than public servants by the issue of subpoenas. These petitions came originally before Govinda Menon J. who made the following Order ;

"Post before a Bench whether the Rent Controller has any power inherent or otherwise to summon witnesses."

Counsel in this case have not been able to draw our attention to any decided case, reported or unreported, dealing with this question. We are therefore left with the relevant provisions of the Act and the rules framed under the Act.

2. The applications in question are under Section 4 of the Madras Buildings (Lease and Rent Control) Act, 1949, for fixation of fair rent. But the same question would arise even as regards applications under other sections of the Act. It is obvious that though generally Controllers have been personal belonging to the judicial service they are not courts and therefore the proceedings before them will not be governed by the provisions of the Civil Procedure Code, Section 17 of the Act confers powers on the State Government to make rules to carry out the purposes of the Act. and, without prejudice to the generality of this power, the rules may provide inter alia for-

(b) the procedure to be followed by Controllers and appellate authorities in the performance of their functions under the Act.

(c) the manner in which notices and orders under this Act shall be given or served.

Sec. 17(4) declares that,

"All rules made under this section shall be published in the Port St. George Gazette and upon such publication shall have effect as if enacted In this Act."

Now we turn to the Madras Buildings (Lease and Rent Control) Rules, 1951, which are applicable to these cases. Rule 8 Prescribes the particulars which should be contained in every application under the Act. Rule 9(1) provides for issue of notice to the respondent or respondents mentioned in the application. Rule 9(2) says that the Controller shall give to the parties a reasonable opportunity to state their case and he shall record a brief note of the evidence of the parties and witnesses, if any, examined on either side and upon the evidence so recorded and after consideration of any documentary evidence which may be produced by the parties pass orders on the application. Rule 15 confers power on the Controller and the appellate authority in cases falling under Section 5 of the Act or in any other case under the Act, if he thinks fit to do so, to personally inspect the building concerned. Rule 22 specifically provides for the service of summons Issued under Section 12-E. That section empowers the Controller in his discretion to issue summonses to public servants requiring them to attend in person to give evidence or to produce documents in their custody in connection with any proceedings before him. Rule 24 is in our opinion most material for the consideration of the question before us. The following sub-rules of Rule 24 are relevant:

(1) Every summons issued under the Act shall be in writing, shall be authenticated by the seal, if any, of the officer by whom it is issued, and shall be signed by such officer or by any person authorised by him in writing in that behalf;

(2) It shall require the person summoned to appear before the said officer at a stated time and place and shall specify whether his attendance is required for the purpose of giving evidence, or to produce a document or for both purposes; and any particular document the production of which is required shall be described in the summons with reasonable accuracy.

(3) Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced, instead of attending personally to produce the same.

3. Sub-rule (4) provides for several ways of service of summons on any person. While Rule 22 limits these ways to personal delivery or tendering personally or sending by registered past, Rule 22(4) enumerates all the ways we are familiar with under the provisions of the Civil Procedure Code, e.g. by a notice being left at the last known place of abode or business or by giving or tendering it to some adult member of his family and by affixture. Rule 24 (7) runs thus:

"The Controller or the appellate authority, as the case may be, shall have, power to administer oaths, to require the attendance of all parties concerned and of witnesses and require the production of all books and documents relating to the matter of the dispute."

We are reasonably convinced that the sum monses referred to in Rule 24 cannot be restricted to summonses to the respondents in an application and to public servants under Section 12-E. Rule 24(2) in our opinion contemplates the Issue of summonses to private witnesses at the instance of parties, and Sub-rule (2) authorises the Controller or the appellate authority to require the attendance of witnesses and the production of documents. If specific authority is necessary to support the view we are taking, namely, that the Controller or the appellate authority has the power to summon witnesses, such authority can be found in Sub-rule (7).

The expression "require the attendance" is wide enough to include requiring by summoning. There can be no doubt that the view we have now taken is in the interests of justice and will enable the parties to place before the controller all material evidence.

4. Before the appellate authority the point was specifically urged that the Rent Controller should have summoned witnesses and a substantive application was also filed before him for the summoning of those witnesses. But the appellate authority thought that no useful purpose would be served by recording such evidence regarding building constructed subsequent to 1940. We cannot agree with this statement. No doubt there is no provision in the Act which specifically provides for taking into consideration the prevailing rents of buildings in the locality which had been constructed subsequent to 1-4-1940. But Section 4 does refer to the circumstances of the case in Sub-clause (2) (c). It cannot be denied that the prevailing rent of similar buildings at the time of the application will be one of the circumstances which can be taken into account especially as in this case the Rent Controller found that there was no reliable evidence as to the prevailing rate in the locality for similar accommodation in similar circumstances during the twelve months prior to 1-4-1940.

5. In this view the cases must go back to the Rent Controller for fresh disposal after permitting the parties to let such evidence as they may choose to, if need be by witnesses being summoned at their instance. Our order should not be understood to mean that on the merits we have disapproved of the findings of the Rent Controller and the appellate authority. The Civil Revision Petitions are allowed and the applications, are remanded to the Rent Controller for fresh disposal in the light of our above observations.

6. Mr. Thiagarajan, for the respondents, requested that a direction should be given by this Court that pending the final disposal of these petitions, the tenants may hot be compelled -to pay at the rate originally fixed, namely, Rs. 500 per month. He suggested that they may be permitted to pay at the rate of Rs. 200 per month, the rate fixed by the Rent Controller But that rate has now been set aside. In the circumstances we think it just and proper to direct each tenant to pay at the rate of Rs. 325 per month, which it is represented to us was the rate at which they were allowed to pay during the pendency of the appeals before the appellate authority, though they subsequently withdrew out of the sums so deposited Rs. 125 per month on the disposal or the appeals by the appellate authority. This payment will, of course, be subject to any final orders that may eventually be passed on the applications.

There will be no order as to costs in these civil revision petitions. The rate of Rs. 325 will be from 1st February 1955 Of course the tenants will be entitled to credit of such amounts as they have already paid for the said period. They will also have three months time -from today to pay the arrears according to this order.

7. The Rent Controller is directed to dispose of these applications expeditiously, the only new evidence being such as may be given by witnesses summoned at the instance of the parties. The Rent Controller shall give priority to these applications.


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