K.C. Chunder, J.
1. This Rule was issued at the instance of a tenant against the order of the Subordinate Judge, 5th Additional Court, 24-Parganas, in connection with an application by a landlord for fixation of standard rent filed before the Additional Rent Controller of Calcutta.
2. The facts are very simple. The landlord alleged that the premises were let out on 1-12-1941. That has not been contested. The landlord gave evidence as to what according to him was supposed to be the rent actually paid at the time. Both the Rent Controller and the Subordinate Judge disbelieved that evidence. The two courts then proceeded on the basis of Section 9 (1) (g). It is extremely regrettable that although we have very learned decisions on the Rent Control Act, no one has taken the trouble to point out to the lower Courts in simple language what they are practically to do in connection with fixation of rent. Sec-tion 9 of the Rent Act deals with fixation of standard rent. It has two clauses, Clause (1) which says in which cases standard rent is to be fixed. Clause (1) has got seven sub-clauses. The first sub-clause deals with the very simple case -- where Schedule A is to apply. Therefore in a case where it is a question of whether Schedule A will or will not apply, if it is found that it will apply then sub-clause (a) has got to be applied. Sub-clause (b) deals with cases where there has been increase of municipal taxes during the currency of the tenancy requiring therefore an alteration of the rent by assigning the increased taxes amongst the tenants. Sub-clause (c) deals with the case of additions, alterations, and improvements entitling the landlord in certain cases to enhanced rent. Sub-clause (d) deals with the case of furnishing a house during a tenancy, Cases under Sub-clause, (a) to (d) are not very common in our Court but if the general nature of these Sub-clauses as pointed out, is remembered it will be easy for the Courts to find out the particular sub-clause necessary should any such case, arise.
Then we come to the three important Sub-clauses (e), (f) and (g). Sub-clause (f) can only apply if the premises were wholly or substantially constructed after 31-12-1949. In other words, for very new premises a special provision has been made and in such cases this sub-clause alone must be used. I have found cases where Courts have proceeded to apply Sub-clause (f) although the evidence has been that the premises had been constructed prior to 1949 having been in existence perhaps in 1943 or 1944. This is entirely wrong. Leaving aside houses constructed after the 31st December, 1949, that is, absolutely new houses, almost all rent fixation cases, except those I have already mentioned as falling within Sub-clauses, (a) to (d), will fall either under Sub-clause (e) or Sub-clause (g). The distinction is this: if the premises were wholly or partially let out on 1-12-1941 then the Court must proceed on the basis of Sub-clause (e) except where as mentioned in that sub-clause the premises were let rent free or at a nominal rent or for some consideration other than money rent or in addition to money rent.
It has been repeatedly pointed out by this Court that nominal rent does not mean merely a low rent and the Courts must bear this in mind. Therefore, if it is found that the premises in whole or in part were actually let out in 1941 then evidence must be given to show what was the actual rent at that time. If for any reason, as it has been found in the present case by the Courts below, evidence is not such as can be believed by them or is not obtainable then 'notional rent' will have to be found what would the approximate rent for the premises on 1-12-1941, in accordance with Clause (2) of the section. Clause (2) of the Section applies where the case falls under Section 9 (1) (e) and the rent paid on the 1-12-1941 has to be determined. Where, because the evidence is not obtainable or because the evidence of actual rent paid is not satisfactory, such actual rent paid on the 1st December, 1941 cannot be found then the 'notional rent' on the 1st December, 1941 will have to be found in accordance with clause (2) from standard rent of like premises in December, 1941.
In a case in which the house is shown to have been let out on the 1st December 1941np question of Sub-clause (g) can ever arise. It will be a case of either taking evidence of the actual rent or taking evidence and determining the 'notional rent' on 1-12-1941 in case the actual rent is not proved to the satisfaction of the Court or is not obtainable. It is when all these sub-clauses fail then and then only Section 9 (1) (g) can apply. It is the residuary sub-clause but before the residuary sub-clause can be applied the Courts must see that other sub-clauses do not apply. As regards onus of proof in a rent fixation case there is already a reported decision of this Court.
3. In the present case, it is the distinct finding of the Courts below that the premises were let out on 1-12-1941. If the landlord's evidence to show what the actual rent was such as would not carry conviction then the Courts should have proceeded to determine the 'notional rent' on 1-12-1941 in terms of Clause (2), instead of proceeding in this case under Section 9 (1) (g).
4. The result, therefore, is that the Courtshave proceeded entirely on a wrong principleand the decisions must be set aside and thematter remanded to the learned AdditionalRent Controller for fixation of standard rent interms of Section 9 (1) (e) read with Section 9 (2) aspointed out in this judgment. Each party willpay his own costs in this Rule.