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M.L. Das and Sons Vs. Sampatmull Bothra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2390 of 1952
Judge
Reported inAIR1954Cal103,57CWN894
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 23; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 9(1)
AppellantM.L. Das and Sons
RespondentSampatmull Bothra
Appellant AdvocateChandra Narayan Laik, Adv.
Respondent AdvocateSen Gupta and ;Jogesh Chandra Sinha, Advs.
Cases ReferredRamrichpal v. Jagadish Prosad
Excerpt:
- .....character. the proceeding started as far back as april 11, 1951. it had its usual run from the rent controller to the appellate judge and then to this court.2. the rent controller standardised the rent under the proviso to section 9(1)(f) of the rent control act, 1950. on appeal it was held that the case was one under section 9(1)(g) of the said act and as the learned judge had no materials before him for standardising the rent under that section, he dismissed the tenant's application.3. on being moved against this appellate decision, this court reversed the said decision and held that the case was quite within section 9(1)(f) of the act and that, therefore, the residuary section 9(1)(g) could not apply. this court, however, found, on the previous occasion, on an examination of the.....
Judgment:
ORDER

1. This Rule arises out of a proceeding for standardisation of rent started by the tenant petitioner. The proceeding has had a long and chequered career and the circumstances under which the matter has now come up to this Court are of an unusual character. The proceeding started as far back as April 11, 1951. It had its usual run from the Rent Controller to the Appellate Judge and then to this Court.

2. The Rent Controller standardised the rent under the proviso to Section 9(1)(f) of the Rent Control Act, 1950. On appeal it was held that the case was one under Section 9(1)(g) of the said Act and as the learned Judge had no materials before him for standardising the rent under that section, he dismissed the tenant's application.

3. On being moved against this appellate decision, this Court reversed the said decision and held that the case was quite within Section 9(1)(f) of the Act and that, therefore, the residuary Section 9(1)(g) could not apply. This Court, however, found, on the previous occasion, on an examination of the respective cases of the parties before it in the light of the materials on record that the disputed premises was not part of any construction within the meaning of the proviso to Section 9(1)(f) of the Act and in that view of the matter this Court set aside the decisions of both the appellate Judge and the Rent Controller and sent back the case to the Rent Controller with a definite direction that the rent was to be standardised under the main part of Section 9(1)(f).

4. When, however, the matter went back to the Rent Controller, he, after proceeding for sometime in terms of the above direction of this Court, eventually passed an order that as that decision in the present case was apparently overruled by a subsequent Bench decision given in another case, the parties must take appropriate directions from this Court once again before the Rent Controller could proceed with the matter.

5. It is impossible to find any provision of law under which this order of the Rent Controller can be justified. The Court had given him a definite direction in this very case to proceed in a particular manner. The matter was not taken up to any higher tribunal and, therefore, the finality and effectiveness of this Court's decision, giving the said direction, remained wholly unaffected so far as the present case was concerned. Whether the said decision was right or wrong, it was, in the circumstances stated above, fully binding upon the Rent Controller and upon the parties to this case and must be taken to have finally settled the question as to which part of Section 9 of the Rent Control Act would apply to this case. The Rent Controller had no jurisdiction and, indeed, he had no business, to go behind that direction. His duty was clear and he had to standardise the rent in accordance with the direction given in this very case by this Court. Whether in another case a different view of the law was taken by this Court and even assuming that that was the position, though as we shall presently show such was not the case here, was wholly immaterial, so far as the present case was concerned, and the Rent Controller would have done well to confine himself within the limits of his jurisdiction and to follow up the direction, given to him by this Court, instead of being swayed by an apparent conflict between the two decisions, cited by him, and sending the parties over again to this Court for further direction. The order of the Rent Controller in that behalf is wholly unwarranted in law. It is, accordingly, set aside and the Rent Controller is directed to proceed with the case in terms of the direction given in Civil Revision Case No. 2236 of 1951 and to determine the rent of the disputed premises under the main part of Section 9(1)(f) of the Act, as he was enjoined to do, in the light of the judgment in the said Civil Revision Case.

6. Before we part with this case it is necessary and indeed, it is only proper to point out that there is really no conflict between the decisions of this Court in the case of -- 'A. N. Chatterjee v. Sampathmull Bothra', : AIR1953Cal47 (A) and -- 'Sree Agrasen Stores v. Ramrichpal Jhunjhunwalla', : AIR1953Cal379 (B). In the former case there was a definite finding that besides the disputed premises there was no bigger portion of the proposed building substantially complete so as to be lettable and thus to come within the term 'construction' as used in the proviso to Section 9(1)(f) of the Act. Under these circumstances, the case was held to be governed by the main part of Section 9(1)(f) and the decision was given accordingly. In the latter case, namely, the case before the Division Bench reported in -- ' : AIR1953Cal379 (B)', cited above, it was the admitted case of the parties and it was also found by the court that, besides the disputed premises, of which the rent was being standardised, there was a bigger portion of the proposed building of which the said disputed premises formed a part, which was substantially complete and lettable and thus came under the term 'construction' within the meaning of the said proviso. In these circumstances, the proviso to Section 9(1)(f) of the Act was applied in this latter case. The two cases were, therefore, distinguishable and we need only say that, in the premises, set forth above, there was no question of any conflict between the Division Bench decision and the other decision, referred to above, and there was no question also of the Division Bench overruling the former decision. It is true that there are some unfortunate observations towards the end of the judgment in -- ' : AIR1953Cal379 (B)', but it seems to us that their Lordships' attention was not drawn to the actual finding in the earlier case -- ' : AIR1953Cal379 (B)', or to its peculiar circumstances. The two cases properly read, do not disclose any conflict. Each was correct on its own facts and each was distinguishable from the other.

7. In fairness to Mr. Laik we ought to mention here that our attention was drawn to the passage, appearing in -- ' : AIR1953Cal47 (A)', of the Report, which runs as follows :

' 'That term', namely the term 'construction' as used in the proviso to Section 9(1)(f) of the Rent Control Act of 1950, connotes a building or construction which, taken as a whole, is at least substantially complete for the purpose of letting it out to tenants'.

and it was sought to be argued that the passage quoted was clear enough to show that in the said case it was definitely held that until the proposed building was complete, at least substantially, no question of applying the proviso to Section 9(1)(f) of the Rent Control Act of 1950 could arise. The argument, however, proceeds upon a misconception and upon an unfair or improper reading of the passage in question. It ignores the context and gives to the lines quoted a meaning which they do not really bear.

If the quotation is read in its proper context and particularly in the light of the preceding lines, the only meaning attributable to the words 'building or construction', appearing there, would be 'what has been actually built or constructed' and it is this 'building or construction' which, under the said decision, has to be 'taken as a whole' for the purpose of deciding whether it satisfies the test of 'construction' as used in the two phrases 'the const-ruction' and 'the entire construction', appearing in the proviso to Section 9(1) (f) of the Act. The test laid down for the purpose was that the 'construction' in question must be at least substantially complete, so as to be lettable. The passage quoted was merely emphasising this aspect and laying down this test and the words employed were used for no other purpose. The same test was also laid down in the Bench decision in -- ' : AIR1953Cal379 (B), (Vide p. 380)' and it is unfortunate that a difference was discovered, when there was none, between the Interpretation of Section 9(1)(f) and its proviso as adopted in -- ' : AIR1953Cal47 (A)' and that commending itself to their Lordships in -- ' : AIR1953Cal379 (B)'. Closely and carefully read, both these cases would be found to proceed on the same principle of law though in its actual application to the different facts before them the learned Judges differed. Whether a contrary view of the section and its proviso was taken by Chunder, J. in -- 'Ramrichpal v. Jagadish Prosad', : AIR1953Cal243 (C), need not be considered by us for the purpose of the present case and we express no opinion on that point.

8. What we have said above is sufficient to show that Mr. Laik's argument is not sound. We would, however, refer to one other matter which appears to us to be somewhat pertinent. On an examination of the relevant papers it seems to us that in -- ' : AIR1953Cal47 (A)', the tenants only case under the proviso to Section 9(1)(f) was that at least up to the third storey the proposed building was substantially complete. That case was rejected by this Court and it does not appear that there was any suggestion that any other portion of the proposed building was complete so as to come within the term 'construction', as used in the said proviso. This position was not disputed before us by Mr. Laik who appeared in the earlier case also for the present tenants-petitioners but Mr. Laik sought to argue before us that, on the materials on record, there was actually a bigger portion of the proposed building than the disputed premises, substantially complete and let table, so as to come within the term 'construction', as used in the proviso to Section 9(1)(f) of the Rent Control Act of 1950. That may or may not be the actual fact. It is, however, wholly irrelevant now and can be of little assistance to Mr. Laik's clients. The decision in -- ' : AIR1953Cal47 (A)', is final and it cannot be re-opened. It binds the petitioners and binds them irrevocably. There can be no going back, the matter is concluded by that judgment and the controversy must cease.

9. In the result, therefore, this Rule is made absolute. The order complained of is set aside and the case is sent back to the Rent Controller to be dealt with in the light of the observations we have made above. The Rent Controller will now proceed to standardise the rent of the disputed premises in the present case under the main part of Section 9(1)(f) of the Rent Control Act in accordance with the directions contained in the judgment of this Court in Civil Revision Case No. 2236 of 1951.

10. We turn now to the eight applications, filed in this Rule on February 27, 1953, and March 2, 1953, under Section 32(4) of the Rent Control Act of 1950 and Art. 227 of the Constitution of India, in connection with the eight connected Rent Control Cases Nos. 228A, 229A, 230A, 246A, 337A, 338A, 367A and 473A of 1951. In connection with six of these applications, namely, those relating to Rent Control Cases Nos. 228A, 229A, 230A, 337A, 367A and 473A of 1951, petitions of compromise have been filed before us and we are told by the learned Advocates for the parties that in connection with the remaining two also, viz., those relating to the Rent Control Cases Nos. 246A and 338A of 1951, similar compromise petitions would be filed in the course of ten days from this date. We would, accordingly, dispose of the first six applications today and defer passing orders on the remaining two, for the present with liberty to mention.

11. The first six applications are now disposed of as follows : Re : 'the six applications in connection with the six Rent Control Cases Nos. 228A, 229A, 230A, 337A, 367A, and 473A of 1951 :

12. In connection with these applications the parties, as already stated, have filed compromise petitions, embodying terras of settlement between them. The terms cover extraneous matters also. So far as the extraneous matters are concerned, no action can be taken in the present proceedings and in respect thereof the parties must be left to their proper remedies in appropriate proceedings. The present proceedings, however, would be disposed of in accordance with the above terms of settlement in so far as the same relate to the subject matter of these proceedings.

We, accordingly, dispose of the Rent Control Cases in question, namely, Rent Control Cases Nos. 228A, 229A, 230A, 337A, 367A and 473A of 1951, by standardising the rents of the disputed premises at the figures, given in that behalf in the respective compromise petitions. These standard rents, namely, Rs. 69/- p. m. in Rent Control Case No. 228A of 1951, Rs. 69/- p. m. in Rent Control Case 229A of 1951, Rs. 90/- p. m. in Rent Control Case No. 230A of 1951, Rs. 40/- p. m. in Rent Control Case No. 337A of 1951, Rs. 60/- p. m. in Rent Control Case No. 367A of 1951, and Rs. 69/- p. m. in Rent Control Case No. 473A of 1951, will come into effect from February 1, 1951, in the four cases, viz., Rent Control Cases Nos. 228A, 229A, 230A, and 473A, of 1951, and from March 1, 1951, in the remaining two, viz., Rent Control Cases Nos. 337A and 367A of 1951. These six applications are disposed of accordingly.


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