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Dudhewalla and Co. Ltd. Vs. Govindram Rameswarlal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 1843 to 1848 of 1951
Judge
Reported inAIR1952Cal585,56CWN315
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 2(1), 9(1) and 32(5); ; Code of Civil Procedure (CPC) , 1908 - Section 100
AppellantDudhewalla and Co. Ltd.
RespondentGovindram Rameswarlal and ors.
Appellant AdvocateN.C. Sen Gupta and ; S.K. Bose, Advs.
Respondent AdvocateA.N. Sen and ; Pritish Ch. Roy, Advs.
Excerpt:
- .....two questions, common to all these cases, have to be answered. it appears from the order of the rent controller that the petitioner purchased the house (no. 20, baranashi ghose street, calcutta) of which the disputed premises form parts, in 1946 and that the house was in existence on december 1, 1941, and was in the possession of the then owners and not, of tenants.3. learned counsel on both sides were at pains either to contest or support the finding of the rent controller in these cases that the entire premises were 'remodelled' or 'renovated' at a heavy cost. the appeal bench did not come to an independent finding of its own. learned counsel on both sides referred us to the evidence on this point.4. mr. sen, learned counsel for the opposite party pointed out that the question was.....
Judgment:

G.N. Das, J.

1. These six Revision cases arise out of as many applications filed by the tenants for fixation of the standard rent in respect of their respective premises under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, hereinafter called the 1950 Act. The landlord is the petitioner in each of these cases.

2. Before I deal with these cases separately, two questions, common to all these cases, have to be answered. It appears from the order of the Rent Controller that the petitioner purchased the house (No. 20, Baranashi Ghose Street, Calcutta) of which the disputed premises form parts, in 1946 and that the house was in existence on December 1, 1941, and was in the possession of the then owners and not, of tenants.

3. Learned Counsel on both sides were at pains either to contest or support the finding of the Rent Controller in these cases that the entire premises were 'remodelled' or 'renovated' at a heavy cost. The Appeal Bench did not come to an independent finding of its own. Learned Counsel on both sides referred us to the evidence on this point.

4. Mr. Sen, learned Counsel for the opposite party pointed out that the question was really one of fact. He referred us to the case of 'MITCHEL v. BARNES', (1950) 1 K B 448 where the effect of structural alterations came up for consideration. Denning L. J. observed that

'the question of change of identity is primarily an inference to be drawn by the County Court Judge. If he has directed himself properly,-as he has done,- we can only interfere if it is quite plain that he has come to the wrong conclusion.' (Page 451)

Referring to the extent of the alterations the same learned Judge went on to say, 'It is a question of degree and it is primarily for the County Court Judge'. In a later case, 'SOLLE v. BUTCHER', (1950) 1 K B 671, Bucknill L._ J. qualified the above observations of Denning L J. by observing that 'it is a matter of law, whether on the evidence only one inference can properly be drawn from the facts. In other words, it is a matter of law whether there is any evidence to support the particular inference of fact.' (page 686).

5. In the present case, the Appeal Bench as already pointed out, has not come to an independent finding of its own. Even if it be assumed that the Appeal Bench must be taken to have accepted the finding of the Rent Controller, we have to see if there is any evidence in support of the finding or if only one inference was possible from the evidence on record or whether the correct principles applicable to the case were kept in view.

6. In my view, the first question to be considered is whether the present premises were in existence in December 1941 or whether new premises have sprung into existence as a result of the structural alterations made by the landlord petitioner after his purchase.

7. The law in England is clear on the point. Referring to the statutory provision in the English Act of 1920 bearing on reconstructed building, Megarry in his well-known treatise (4th Edition) observed that

'the statutory provision relating to reconstruction forms part of a general principle that if a house within the Acts is subject to such substantial structural alterations that it becomes a new and separate dwelling house in fact by reason of change of identity, the new premises shed all the attributes of the old' (pages 27 and 28).

8. The above statement of the principle was cited with approval by Bucknill L. J. in 'SOLLE v. BUTCHER (1950) 1 K B 671 at p. 680 already referred to. In 'LANGFORD PROPERTY CO. LTD. v. BATTEN', (1951) A C 223 (House of Lords) Lord Radcliffe in his speech before the Lords referring to the case of a physical change brought about by improvement or structural alteration of the premises said at page 240.

'I think it reasonably clear that the Acts do not regard mere improvement or structural alteration as effecting a change of identity for the purposes of standard rent.'

If we scan the evidence in the light of the above principles there is no escape from the conclusion that the alterations and improvements made in the disputed premises did not affect the identity of the same. The landlord made divergent statements as regards the sums alleged to have been spent. He did not produce his account books. No municipal plans showing the alterations have been filed. The evidence of the landlord is meagre and unconvincing. In my opinion, it is not possible to say from the facts of this case that there was any change in the identity of the premises in question. We have therefore to proceed on the footing that the disputed premises were in existence on December 1, 1941, and were not let out on that date either in whole or in part. The standard rent of the premises must, therefore, be fixed in accordance with the provisions of Section 9(1) (e) of the 1950 Act.

9. Dr. Sen Gupta contended that Section 9(1) (c) of the 1950 Act should apply. That section is obviously prospective and applies to cases where standard rent may be or has been fixed under the 1950 Act and is current. The definition of the expression 'standard rent' in Section 2 (10) of the 1950 Act does not, in my opinion, lead to the inference that cases like the present where the improvements and alterations were made long before the Act are covered by Section 9(1) (c) of the 1950 Act. Nor can I see my way to accept the alternative argument of Dr. Sen Gupta that Section 9(1) (g) would apply, because I have already found that Section 9(1) (e) is applicable.

10. The view taken by me does not in any way involve any hardship, conceding that the question of hardship is relevant in considering the provisions of section 9(1) (e) of the 1950 Act. In applying Section 9(1) (e) the Court will have to find out the hypothetical rent of the improved or renovated premises on December 1 1941 and as such the benefit of the renovation or, improvement will be available to the landlord in the matter of fixation of the standard rent.

11. Reference was made before us to a decision of Roxburgh J. in the case of 'MARZIA KHATUN SAHEBA v. SRIMANTA KUMAR', 56 Cal W N 95. On the finding reached by us that no new premises were erected in 1946 the above decision does not in terms apply. I am not therefore called upon to pronounce upon the correctness or otherwise of the said decision and I reserve my opinion on this question.

12. I shall now deal separately with the, different Revision cases.

13. In Civil Revision Case No. 1843 of 1951 the tenancy of the opposite party commenced in June, 1949. The agreed rent was Rs. 1100/-per month. The Rent Controller fixed the rent at Rs. 330/- per month. On appeal by the landlord the rent was fixed at Rs. 880/- per month. The tenant applied for a review of the order. On review the Appeal Bench reduced the standard rent to Rs. 330/- per month and affirmed the order of the Rent Controller. The landlord moved this Court and obtained the above Rule.

14. Dr. Sen Gupta first contended that the. grounds on which the Appellate Bench reviewed its previous order were not proper grounds for review. The power of review is contained in Section 32(5) of the 1950 Act. The section confers on the Appeal Bench the powers conferred on a civil court under Sections 151, 152 and Order 47 Rule 1, Civil P. C. A perusal of the judgment passed by the Appeal Bench clearly shows that there were apparent mistakes in the judgment of the Appeal Bench. There were therefore sufficient grounds for review as contemplated by Section 32(5) of the 1950 Act The contention of Dr. Sen Gupta therefore fails and must be overruled.

15. The second contention of Dr. Sen Gupta related to the grounds on which the standard rent was assessed.

16. The Rent Controller based his decision on the Inspector's report, his own inspection and the rents of certain premises in the locality, in December, 1941. On these materials the Rent Controller reached the finding that the probable rent of the disputed premises would be Rs. 300/- per month in December, 1941. The judgment of the Appeal Bench passed on review does not clearly disclose the basis of the decision.

We have therefore considered the evidence, in this case and we think that the disputed premises can be fairly compared with premises No. 34 Vivekananda Road. It appears from the Inspector's report that the disputed premises contain several verandahs and a portion, The floor area of the rooms is 1864 sq. ft. and of the verandahs about 500 sq. ft. The floor area of the rooms in 34, Vivekananda Road is 1208 sq. ft., the rent is Rs. 155/-. The rate works out at about Rs. 12-12-0. The Appeal Bench added 10 per cent, on account of renovation. On such addition the rate would work out at about Rs. 14/- per 100 sq. ft. On this basis, the rent of the rooms only would come up to Rs. 255/- per month. The Appeal Bench has fixed the basic rent of the disputed premises at Rs. 300/- per month. It would stem therefore that the Appeal Bench added a sum of Rs. 45/- as rent for the verandahs and the portico in question. It is difficult to say that this basis is wrong. Having regard to all the circumstances of this case, it is not possible to say that the concurrent decisions of the Rent Controller and the Appeal Bench have resulted in a material failure of justice. This Rule is therefore discharged with costs.

17. I shall now take up Civil Revision Case No. 1844 of 1951. In this case the tenancy of the opposite party commenced in May 1949. The Rent Controller fixed the standard rent at Rs. 137/8/- per month in place of the agreed rent of Rs. 200/- per month. Both the landlord and the tenant preferred appeals. The Appeal Bench has fixed the standard rent at Rs. 50/- per month.

18. In Civil Revision Case No. 1847 of 1951 the Rent Controller fixed the standard rent at Rs. 165/- per month in place of the agreed rent of Rs. 531/- and the standard rent of Rs. 350/-. Both the landlord and the tenant preferred appeals. The Appeal Bench fixed the standard rent at Rs. 100/- per month.

19. In Civil Revision Case No. 1848 of 1951 the tenant came into occupation in January 1950. The Rent Controller fixed the standard rent at Rs. 247/8/- per month in place of the agreed rent of Rs. 501/-. Both parties appealed. The Appeal Bench fixed the standard rent at Rs. 112/- per month.

20. All the above cases are cases of residential tenancies. In all these cases the Rent Controller referred to the Inspector's report, his own inspection and the judgments, Exhts. 2, 2-A, Exht. B to B(4). He discarded Exht. 2 on the ground that an appeal was pending. He did not consider it safe to rely on Ex. B to B(4) which are based on the agreed rents in respect of portions of the premises No. 20, Baranashi Ghose Street which is the house in dispute. His finding as regards the basic rent proceeded on the footing that the disputed premises would have fetched certain rentals on the 1st of December, 1941, and on this basis he calculated the standard rent in accordance with schedule A of the 1950 Act. The Appeal Bench considered the rents of premises Nos. 14, 16, 19 and 21 Baranashi Ghose Street as also the reports of the Inspector and of the Rent Controller. The Appeal Bench merely referred to the rent of premises No. 34, Vivekananda Road. The Appeal Bench concluded by saying that the local rate varied from Rs. 8-4-0 to about Rs. 14/- per 100 sq. ft. in December 1941. The Appeal Bench took the highest rates and gave an increase of 10 per cent, in consideration of the advantages of the disputed premises and took the rate to be Rs. 15/- per 100 sq. ft. The Appeal Bench discarded the agreed rents of portions of the disputed house as appearing from Exht. B to B(4). The appeal Bench then fixed the standard rents.

21. Dr. Sen Gupta contended that the judgment does not disclose how the figures showing the standard rent were worked out in these cases. He gave us a comparative table of the floor areas and rents of the disputed premises and the other premises referred to by the Judge in his judgment. He submitted that the tenants were in exclusive possession of the verandahs and derived full advantage of such use of the verandahs and he contended that, as such the floor area of these verandahs should be taken into account in ascertaining the hypothetical rent in December, 1941.

22. Dr. Sen Gupta also contended that the Appeal Bench merely referred to the standard rent of premises No. 34, Vivekananda Road which corresponds to the old premises No. P26, Jagannath Ghat Road but did not properly consider the effect of comparison of the rent of this premises,

23. We have given our best consideration to these contentions. We are of opinion that there is some force in them. The judgment of the Appeal Bench does not show whether the learned Judge paid due attention to the matters referred to by Sen Gupta. In this view we are of the opinion that the appeals have not been properly disposed of by the learned Judge and there has been a material failure of justice in these cases.

24. The result is that the judgment of the Appeal Bench in these cases is set aside and these cases are remitted to the Appeal Bench for a re-hearing of the appeals. It will be open to the Appeal Bench, if it thinks it to be necessary, to take additional evidence. The costs of these Rules will abide the result.

25. Civil Revision Cases Nos. 1845 and 1846 of 1951 may be dealt with together.

26. The tenant is Debika Hosiery Factory. In these cases the Rent Controller fixed the standard rent, respectively, at Rs. 20/- and Rs 85/- per month in place of the agreed rents of Rs. 40/- and Rs. 225/-. The landlord appealed in both the cases. The tenant preferred an appeal only in the second case. The Appeal Bench fixed the standard rent at Rs. 20/- and Rs. 60/- respectively.

27. The premises in question in these cases were used for non-residential purposes. The Rent Controller compared the rent paid by another hosiery concern in respect of the adjoining premises No. 23, Baranashi Ghose Street. The Appeal Bench does not specifically give any reasons for its conclusions.

28. We have considered the evidence bearing on this point. The other premises referred to in the judgment of the Appeal Bench were all used for residential purposes and cannot be regarded as comparable premises. If we compare the rent of the disputed premises with the rent of the hosiery concern in No. 23, Baranashi Ghosh Street and also take into consideration the fact that there was renovation of the disputed premises, it is not possible for us to say that the judgment of the Appeal Bench is such as may be said to have resulted in a material failure of justice.

29. In this view, these Rules are discharged with costs but as the tenant opposite party is common in these cases we direct that there will be one set of hearing fee for the two Rules.

Das Gupta, J.

30. I agree.


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