1. In this case, there is, first of all, a Rule obtained by the tenant claiming a revision of the decision of the learned President under the Calcutta Rent Act and secondly, an application by the landlords for the issue of a Rule revising the same decision in certain respects. The learned Vakils concerned have very properly and conveniently agreed to put the whole matter before us upon the judgment of the learned President. So far as regards the landlords' application, that depends upon three points. It is said, first of all, that the premises were let to the present tenant for the purposes of a factory and that, therefore, they are outside the definition of the word premises as given by Section 2, Clause (e) of the Calcutta Rent Act III, (B.C.) of 1920. In my opinion, the learned President has dealt with this matter quite correctly. He has enquired into the question whether the building here was let for residential purposes or for the purposes of a shop or an office, and he has come to the conclusion on ample evidence that the letting was not for the purposes of a factory. The state of mind of the tenant at the time as to what he intended to try to do in future is by no means conclusive on this point. The landlords appear to have been sending after all negotiations a draft lease which would have put the tenant under a firm obligation to use the premises only for residential purposes. That being so, the learned President's judgment is unexceptionable on this point.
2. It is then said that the learned President has failed to appreciate the true force of the evidence of the landlords' expert Mr. Shrosbee. That one way of putting the matter which he has criticised was only one of the aspects dealt with by the witness. It is not for us to say whether or not the evidence of that witness was fully and effectively appreciated by the learned President. We are not entitled to revise his decision even if on going through the evidence we should think that he has devoted an insufficient amount of attention or attributed an insufficient importance to one element of a question of fact.
3. Lastly, it is said that the learned President has misdirected himself in fixing the amount of the fair rent in this case. That contention is based upon the proviso to Section 15 of the Rent Act. It seems to me that the position is fairly plain. In order that it may be a question at large how much the standard rent should be, there has, first of all, to be a finding within one or other of the sub-divisions of Clause (3) of Section 15. In the present case, there has to be a finding that the rent paid on the 1st of November, 1918, was, in the opinion of the Controller, unduly low. If that finding is come to, then, by the proviso, the hands of the Controller are tied as to the amount to which he may raise the rent. He is forbidden to fix the rent at a higher amount than the highest rent actually paid for the premises since November, 1.918. But, by the second part of the proviso, if one or other of the things therein mentioned is found, that particular restriction on the question of amount is taken away and the result is that the amount is entirely at large. It is certainly suggested by the language of the S6cond part of the proviso that, where rent has not been increased since the first day of November, 1913, as in the present case, the rent must be unduly low. That, however, is not an enactment, but only a suggestion arising out of the provisions dealing with the details of the subject, and whether that suggestion is well-founded in any particular case is purely a question of fact. The legislature has not therein enacted a presumption which brads the; hands of the Controller when considering; whether the rent on the 1st November, 1918, was or was not unduly low. In my judgment, if the finding of fact under Clause (d) of Sub-section (3) of Section 15 is good, there is no ground for complaint by the landlords under the terms of the proviso. That brings me to the question upon which the Rule was granted to the tenant.
4. The tenant complains that the learned President has found that the rent of 1918 was unduly low by misdirecting him in law. The finding was that before 191S; the premises were let out for more than; they afterwards fetched. He says : 'This fall in the rent was, in my opinion, duo to a change for the worse in the condition of the building brought about by a neglect of necessary and timely repairs. The rent, of November, 1918, which under the Act; is the basis of the standard rent of a house must, I think, be taken as the fair rent which the house would have fetched at that time, if it was in a normal state of repairs. If at that time, the house happened to be out of repairs, the fair rent of the house in its actual condition at that time would be low, and the result of taking that rent as the basis for fixing its standard rent would be that, so long as, the Act remains in force, the owner would be precluded from getting any higher rent in future even after putting the premises in a proper state of repairs; for Section 5 of the Act provides that the standard rent of a house cannot be increased by reason merely of expenditure incurred by the landlord in making necessary repairs. I do not think that that could have been the intention of the legislature.' In my opinion, this construction of the provisions of, Clause (d) of Sub-section (3) of Section 15 is incorrect. The test throughout the Act is intended to be the actual rent, that is to say, the rent at which the premises were let in fact on the 1st day of November, 1918. Under Clause (d), the Controller has to ask himself whether that rent, at that date was unduly low and, in my opinion, the reference there is not to a hypotheticalor notional state of normal repairs but to the actual condition of the premises as compared with the actual rent paid or agreed to be paid. It is perhaps open to some argument, but I will take it for the present purpose that the view of the learned President is right and that in a case where in November, 1918 the premises were let at a rent which was low by reason only of bad condition, the landlord having put the premises in repairs will be unable under the Rent Act to get an increase of rent. I say nothing to prejudice the question if it arises hereafter under Clause (a) of Sub-section (3) or otherwise. It is not, however, plain to me that the legislature may not have contemplated with equanimity some of the troubles of a landlord whose property was in disrepair even although afterwards he has put it into repairs. In order that the rent of a house may be unduly low, all things must be considered. The premises may be out of repairs and still the rent may be unduly low. But in the present case, the learned President has held, as I understand, that the fall in the rent was entirely due to the change for the worse in the condition of the building. He has not found that notwithstanding the bad condition of the building, the rent of 1918 was unduly low nor, in my judgment, did he mean to find anything of the sort. I think, therefore, we must exercise our power in revision and send this matter back to the learned President in order that the question whether the rent paid on the 1st day of November, 1918, was or was not unduly low may be reconsidered and a proper finding come to upon that and the consequential points. It must be distinctly understood that no fresh evidence is to be taken and the remand is solely for a finding under Clause (d) of Sub-section (3) of Section 15 of the Calcutta Rent Act in the light of the observations made in the judgment and for the disposal of the ease accordingly : the Rule of the tenant is made absolute on these terms and to this extent. The landlords must pay to the tenant his costs in the Rule and the application, the hearing fee for the two together being assessed at two gold mohurs.
5. I agree.