1. This appeal is by defendants 1 to 7 in a suit for recovery of arrears of rent of an occupancy holding for the years 1342 to 1845 B.S. Originally the rent of the holding was Rs.31-2-0 and 7 1/2 maps of paddy per annum. In 1923, on the application of the tenant defendants under Section 40, Ben. Ten. Act, the paddy rent was commuted into money rent and as a result of this commutation the total rent of the holding was settled at Rs.85 per annum. In the present suit the plaintiff claims rent at Rs.85 per annum. The defendants claim a reduction of this rent under Section 38, Ben. Ten. Act, on the ground that; there has been a fall, not due to a temporary cause, in the average local prices of atapk food crops during the currency of the present rent: since 1924. In their written statement, para. 6, they ascribe the fall in the price to the world economic depression since 1386 B.S. The relevant portion of Section 38, Ben. Ten. Act, stands thus:
38 (1), An occupancy raiyat may institute a suit for the reduction of his rent on one or more of the following grounds.. (1) on the ground that there has been a fall, not due to a temporary cause, in the average local prices of staple food-crops during the currency of the present rent... (2) In any suit instituted under this section the Court may direct such reduction of the rent, as it thinks fair and equitable.
2. There is no dispute that reduction of rent on the ground stated above may be obtained by way of defence in a suit for recovery of arrears of rent. There is also no dispute that paddy is the staple food-crop of the locality. The learned Munsif who tried the suit upheld the defence claim to the reduction of rent, finding (1) that there has been a considerable fall in the average local prices of paddy during the currency of the present rent; (2) that the cause of the fall is not a temporary one.
3. He compared the average price of paddy for 1930 to 1989 as published by the Government under Section 39, Ben. Ten. Act, with that for the period from 1915 to 1924 and held that the tenants were entitled to a reduction of l/4th of the rent. As the commutation of the paddy rent took effect from 1330 B.S. he allowed this reduction with effect from 1345 B.S. in view of the provisions of Section. 40A, Ben. Ten. Act, according to which a commuted rent was not liable to be reduced for 15 years on the ground of any fall in the average local price of staple food-crops.
4. On appeal by the plaintiff, the learned Subordinate Judge reversed this decision, and held that the tenants were not entitled to any reduction of rent. The learned Subordinate Judge decided against the tenant on the two following grounds, namely: (1) that the requirements of Clause(1) of Section 38, Ben. Ten. Act, were not satisfied as the cause owing to which the price fell was a temporary one; (2) that even if the requirements of Clause(1) of Section 38 be taken to be present, the Court is given discretion in the matter by Clause(2) of the section, and in the circumstances of the present case, that discretion must be exercised against the defendants.
5. The learned Subordinate Judge affirmed the finding of the learned Munsif that there had been a considerable fall in the prices of staple food-crops. He found that there had been this fall since 1931. According to him this fall was due to worldwide economic depression. He, however, took this depression to be a temporary cause relying on the observation of Terrell C.J., in Nathuni Thakur v. Ram Saran Singh ('32) 19 A.I.R. 1932 Pat. 225 at p. 666 to the. effect that this economic depression could not be said to have a permanent effect. He also noticed that 'though the prices are still lower than what ruled before the economic depression set in, there has again been some rise in the prices.' He therefore held that the fall in the average local prices could not be said to be 'not due to a temporary cause' within the meaning of Section 38 (1) (b), Ben. Ten. Act.
6. As to his second ground for refusing the claim for reduction the learned Subordinate Judge was influenced by what he considered to be the factors taken into consideration in the commutation proceedings. According to him three factors were taken into consideration in settling the rent under Section 40, Ben. Ten. Act, viz. (1) prevailing rate of rent in the locality (2) average prices of staple food-crops and (8) average yield of the lands. He thought that there was nothing to show when the prevailing rate of rent came into existence and consequently he observed that if this prevailing rate be taken as coming into existence during the years 1891 to 1900, then the average prices of staple food-crops of that period were almost the same as the average prices of the years 1930 to 1939. Next, taking the average yield of the lands, he found that the present rent of Rs.85 is a little less than l/6th of this average yield. He seems to have taken this to be a fair ratio.
7. Mr.Mukherjee, appearing in support of the appeal before me, contends (1) that the Court of appeal below went wrong in holding that the world economic depression was only a temporary cause; (2) that in exercise of its power under Section 38 (2), Ben. Ten. Act, the Court of appeal below went wrong (a) in its conception of prevailing rent as a factor determining the commuted rent (b) in its appreciation of what proportion should a fair rent bear to the average yield, and (c) in its appreciation of the factors actually taken into consideration in the commutation proceeding.
8. Mr.Ghose, appearing for the plaintiff-respondent, contends (1) that the question whether or not a cause is a temporary one is a question of fact, and is concluded in the present case by the finding of the Court of appeal below. (2) That at any rate the granting of any reduction of rent being discretionary with the Court under Section 38 (2), Ben. Ten. Act, and that discretion in the present case having been exercised by the Court of appeal below against the defendants, no question of law arises for decision in the present appeal.
9. As regards the 'prevailing rate' it is difficult to see how the period 1891 to 1900 at all comes in. Sections 31 and 3lA, Ben. Ten. Act; indicate what is meant by the expression 'prevailing rate' at any time. Section 40 (4) of the Act also indicates which period would come into consideration for. the purposes of commutation of rent in kind to a money rent. The Order (Ex.2) in the commutation pro-seedlings referred to by the learned Subordinate Judge himself shows which period was taken into consideration by the Collector for this purpose. The Order shows that it was 1912 to 1921. I do not see why a period like 1891 to 1900 should arbitrarily be taken for comparison in this case. I am not sure if 1/6th of the average gross yield without making any allowance for the costs of cultivation, etc., is at all a very fair test. In any case, as the exercise of the discretion by the learned Subordinate Judge under Clause(2) of Section 38, Ben. Ten. Act, seems to have been very much influenced by his erroneous conception of the factors taken into consideration in the commutation proceedings, I cannot allow his decision in this respect to stand unless I am satisfied as to the correctness of his decision relating to the requirement of Section 38 (1).
10. The learned Subordinate Judge has found that there has been a considerable fall in the average local prices of staple food-crops during the currency of the present rent, that the cause of this fall is the 'world economic depression,' (8) that this cause is a temporary one-or cannot be said to be 'not a temporary cause' within the meaning of Section 38 (1) (b), Ben. Ten. Act.
11. There is no dispute that the first two are findings of fact. The question is whether the third is also a mere question of fact and if so, whether the finding on the question arrived at by the Court of appeal below is assailable on any of the grounds open to an appellant in a second appeal.
12. The word 'temporary' means 'lasting or intended to last only for a time,' 'existing or continuing for limited time,' 'not of long duration,' 'transitory,' 'changing,' 'lasting for a short time,' 'not permanent.' The word 'permanent' also is used in the same Section 38, Ben. Ten. Act. The word does not import something, which will continue forever. It is something lasting or intended to last indefinitely. The more uncertain the result is the more it must be held to come within the Meaning of the word 'permanent': Krishna Sahai v. Palak Dhari ('15) 2 A.I.R. 1915 Cal. 345 at page 1158.
13. The question whether or not any particular cause is calculated to last indefinitely or only for a short time is necessarily a question of fact. There may be different accounts of the determining factors. But these factors must also be some facts, some accounts of what happened. It may be difficult, doubtful or problematical as to which account should be accepted. But its acceptance is not the application of any Rule of law. But the question whether the accepted accounts satisfy the requirements of a cause being temporary or permanent may be a question of law. Questions of fact and questions of law are no doubt distinct categories involving real differences. But an apparent question of fact may really be a question of law. The question whether the economic depression as causing the fall in the prices does or does not tend to last indefinitely is a question of fact. But the question as to what facts are required to be established in Order to show that the cause is only temporary will be a question of law or at least a mixed question of fact and law.
14. The learned Subordinate Judge in this case has taken judicial notice of the notorious fact of the world economic depression and has accepted the defendants' ease that this depression is the cause of the fall in prices. It is not disputed that the Judge was entitled to take judicial notice of such a notorious fact. Theoretically the need of the Court for information as to such notorious facts is met by the doctrine of judicial notice and this doctrine is recognised in Section 57, Evidence Act. Very little formality need be resorted to in the process of theoretically reminding the Court of what it already knows or of what it is presumed to know. In Order to characterise the depression as a temporary cause the learned Subordinate Judge mainly relied on certain observations of Terrell C.J. in Nathuni Thakur v. Ram Saran Singh ('32) 19 A.I.R. 1932 Pat. 225 at p. 666 where the learned Chief Justice is said to have characterized this very depression as a tem-porary cause within the meaning of this very section, viz., Section 38 (1) (b), Ben. Ten. Act. The learned Chief Justice, however, did nothing of the kind. There he was simply meeting one of the reasons given by Mahammad Noor J., for refusing to take into consideration the world economic depression in determining what would be fair rent under Section 35 of the Act. Mahammad Noor J., said:
The learned advocate has relied upon the present economic depression prevailing in the country. First of all, one cannot be sure how long this depression is going to last, and secondly, if this beoomes a permanent feature it will be open to the defendants to apply for reduction of rent under the provisions of Section 38, Ben. Ten. Act.
15. The learned Chief Justice referring to thia reasoning of Mahammad Noor J. observed: 'The words 'not being due' to a temporary cause' show very clearly that Section 38 would not give relief to the tenant from changes in the proportions due to the economic depression: for from the learned Judge's premise that it cannot be shown that the depression will have a permanent effect, he would be unable in any case to obtain a reduction for this case.'
16. The learned Chief Justice only assumed the premise of Mahammad Noor J. to expose the infirmity in his reasoning. If Mahammad Noor J. _wanted to characterise the depression as temporary because one could not be sure how long the depression was going to last then with due respect I would differ from him. If there was this uncertainty about the duration of the depression it would not be temporary within the meaning of the section.
17. The other fact relied on by the learned Subordinate Judge is that
during the last two or three years, there has again been some rise in the prices, though the prices are still lower than what ruled before the economic, depression.
No doubt this fact may indicate that the price already shows a tendency to rise and such a rising tendency may be evidence of the fact that the cause of the fall is passing away. But the figures after the year 1936 again indi. Cater a fall in the prices. The so-called rising tendency itself might therefore have been due to some temporary cause. The learned Judge seems to have formed his opinion that the world economic depression was a temporary cause on the supposed authority of the case in Nathuni Thakur v. Ram Saran Singh ('32) 19 A.I.R. 1932 Pat.225 and on the supposed rising tendency. The Judge has thus indicated the premises of his reasoning and the premises are not correct. There might have been some difficulty in examining his assumption as to the character of the cause had his premises remained inarticulate. But that is not the case here. In my opinion, though the question whether the cause is or is not to last indefinitely is a question of fact, the question whether or not it is temporary is a mixed question of fact and law.
18. The Judge has not indicated why he characterizes the cause as a temporary one. Is it because the depression itself is a temporary event? Or is it because its influence in the locality is temporary? Or is it because its influence on the price only is temporary? Agam he does not indicate what meaning he gave to the word 'temporary.' Is the case temporary because it is not to last for ever? Even when he says it is temporary he relies on a supposed authority, which is misread and misunderstood by him, and on a supposed rising tendency which does not in fact exist. In these circumstances I cannot allow this finding to stand. The temporary character ascribed to the event is certainly not a notorious fact. The cause of this depression is yet indefinite and undefined. Its removal is yet beyond any discernible solution. It seems as if it has come to stay indefinitely. The difficulty in characterising the world economic depression itself as a temporary event will best appear from the contradictory plethora of solutions offered on all sides for its removal.
The only lasting step to solve the increasing financial paralysis of the world is the adjustment of all reparations and war debts.
This solution was announced by the Basel Experts Committee's Report in December 1931. A year after the cancellation of these supposed causes by the Hoover Moratorium the 'Economist' declared in May 1932 that
a year ago it was possible to believe that the lifting of the burden of reparations and war debts would be such a relief to the world that it would turn the tide of depression. That belief is no longer possible; it is abundantly clear that action on a much wider spate is necessary.
The 'Midland Bank Review' in January 1932 affirmed that the only way out was the way pf a rising price level. Keynes in a lecture on 'The World Economic crisis and the way of escape' in February 1932 declared that the only alternative solution to the disappearance of the existing credit system is a worldwide organised inflation. 'The way of escape from economic crisis' announced Sir William Beveridge in a Halley Stewart lecture on the same subject in the same month,
was by way of international action to suppress the anarchy of purchasing power and to keep the liberty of production and exchange.
A British Liberal Free Trade Manifesto proclaimed that
the only way to renewed prosperity is the removal of all hindrances to the free exchange of goods and commodities.
The views of American, French and German theorists differed markedly from the British as to the causes of the crisis and its solution.
19. 'The causes of this depression lie in much more potent factors than these debts transactions,' affirmed the United States reply to the British Note in December 1932. Andrew Mellon, the world's reputed wealthiest man, declared
I do not believe there is any quick or spectacular remedy for the ills from which the world is suffering, nor do I share the belief that there is anything fundamentally wrong with the social system.
The major cause of the crisis, according to the French economist, Charles Rist, lay in 'British presumption' in endeavoring to re-establish the pound at par without any adequate economic basis. The French Financier and Politician, Caillaux, in a lecture on the world crisis to the Royal Society of Arts in London in March, 1932 explained that
the principal cause of the crisis was not the defective working of the monetary mechanism or the distribution of gold, but a superabundance of meohanical appliances.
According to him the solution of the crisis lay in extended colonial development in Africa.
20. There are some who find a much deeper cause for this depression and reckon this as the result of the deep contradictions of the present epoch. They do not even ascribe this depression to the world war.
What in 1913 might have still appeared, with whatever contradictions and hardships, as a functioning and elaborately adjusted mechanism of world production, trade and finance, advancing with only slight interruptions to a continuous expansion of production and to ever closer world inter-dependence and inter-relationship, has now revealed itself in the present stage as a system of extreme disequilibrium and discord, with downward trends of production over long periods, with an increasing gulf between productive power and actual production, and with centrifugal tendencies of break-up of closer world relations towards a system of restricted world trade, separate and competing financial bases of unstably related currencies, weakened international division of labour, and intensified warfare of the monopolist block. In fact these tendencies were already present in the germ in 1913; but they have only begun to reveal their full character and effeots in the post-war period...The fact that seven years after the outbreak of the world economic crisis and four years after the passing of its lowest point these tendencies are still strongly and even in some respects increasingly marked indicates that these are no short-term factors of a temporary, passing disturbance, but are deeply rooted characteristics of the present period.
21. The final report of the World Economic Conference, 1927 (Geneva) observed:
Immediately after the war many people naturally assumed that the war and the war alone was the reason for the dislocation that emerged in the economic relations of individuals, of nations and of continents. A simple return to pre-war conditions seemed in the circumstances the appropriate objective of economic policy which would be sufficient to cure the current difficulties. It is an instinctive tendency of mankind to turn to the past rather than to the future and, even at a moment when an old Order is being displaced, to revert to former ideas and to attempt to restore the traditional state of affairs. Experience has shown, however, that the problems left by the war cannot be solved in so simple a manner.
22. Oswald Spengler, the German philosopher, ascribes the depression to
the dethronement of politics by eoonomios, of the state by the counting-house, of the diplomatist by the trade union leader. It is here and not in the sequelae of the world war that the seeds of the present economic crisis will be found. This whole crushing depression is purely and simply the result of the decline of state power.
23. It is thus difficult to characterise the world economic depression as a temporary incident. Of course although it may be permanent elsewhere its influence in a particular locality may cease. It will be for the learned Judge to decide the matter. In the result this appeal is allowed. The judgment and decree of the Court of appeal below are set aside and the appeal is remitted to the Court of appeal below for disposal according to law keeping in view the Observations made above. The parties, will bear their respective costs in this Court. Further costs will abide the result. Leave to appeal under cl.15 of the Letters Patent is prayed for and is refused.