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Gouri Sankar Show Vs. Anil Chandra Majumdar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rules Nos. 1666 and 1804 of 1952
Judge
Reported inAIR1953Cal671,57CWN431
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 9; ;Evidence Act, 1872 - Section 13
AppellantGouri Sankar Show
RespondentAnil Chandra Majumdar
Appellant AdvocateSunil Kumar Mitter, Adv. in No. 1666 and ;Joy Gopal Ghose, Adv. in No. 1804
Respondent AdvocateJoy Gopal Ghose, Adv. in No. 1666 and ;Sunil Kumar Mitter, Adv. in No. 1804
Excerpt:
- .....the tenant's case that the identical roomwas let out in 1941 has not been accepted by eitherthe rent controller or the judge. some attemptwas made to prove that a portion of the room whichwas previously room no. 3, was occupied by ahotel but the finding of the learned judge is thatthat case has not been proved. it has, however,been found that the hotel was in occupation of aroom and a shed on the ground floor of thesame premises in 1941 at a rent of rs. 105/- permonth. 4. both the rent controller and the learned judge have proceeded on the footing that the premises were not let in 1941 and therefore the standard rent had to be fixed under the provisions of section 9 (1) (e) of the west bengal premises rent control (temporary provisions) act, 1950. that clause requires that the rent.....
Judgment:

Chakravartti, C.J.

1. These are two Rules directed against the same order passed by the Fifth Judge of the Small Cause Court on 20-3-1952 in a proceeding for the standardisation of rent. Civil Revision Case No. 1666 of 1952 arises out of a Rule issued at the instance of the landlord, while Civil Revision Case No. 1804 of 1952 arises out of a Rule issued at the instance of the tenant. The subject matter of the tenancy is a room situated on the ground floor of premises No. 97 Harrison Road, Calcutta. It is said that at one time this room consisted of two rooms, Nos. 3 and 4, but some time ago the partition between the two portions was removed and the area was converted into a single room.

2. The application for the standardisation of rent was made by the tenant. His case was that the contractual rent of Rs. 207/- per month was excessive and inasmuch as the rent borne by the same room in 1941 was Rs. 40/- per month, the standard rent should be fixed at a much lower figure than the contractual rent. The tenant was inducted in December 1949.

3. The tenant's case that the identical roomwas let out in 1941 has not been accepted by eitherthe Rent Controller or the Judge. Some attemptwas made to prove that a portion of the room whichwas previously room No. 3, was occupied by ahotel but the finding of the learned Judge is thatthat case has not been proved. It has, however,been found that the hotel was in occupation of aroom and a shed on the ground floor of thesame premises in 1941 at a rent of Rs. 105/- permonth.

4. Both the Rent Controller and the learned Judge have proceeded on the footing that the premises were not let in 1941 and therefore the standard rent had to be fixed under the provisions of Section 9 (1) (e) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. That clause requires that the rent which would have been reasonably payable for the premises, if let on the 1st day of December, 1941, must first be ascertained and that being taken as the basic rent, the provisions of Schedule A should be worked out. Since the premises concerned are a shop room, the clause of Schedule A applicable would be Clause (3).

5. The tenant did not adduce any evidence as regards the rent borne by other rooms in the same premises. He filed two judgments in respect of the ground floor of premises No. 100 Harrison Road, from which, it appears that the basic rent for the premises there in question, was fixed at Rs. 82/- and 25 per cent being added thereto, the standard rent was fixed at Rs. 102-8 under the Rent Act of 1948. Subsequently, the rent was refixed at Rs. 82/- on the ground that three months had not elapsed, since the rent had been, fixed as mentioned in para. (1) (a) of Schedule A. Both the Rent Controller and the learned Judge have adopted premises No. 100 Harrison Road as a comparable unit, but arrived at different results. The Rent Controller thought that on a comparison with the rent borne by premises No. 100 Harrison Road, the reasonable rent for the premises in question in the present proceeding would be Rs. 60/- per month, whereas the learned Judge has held that it would be Rs. 80/-. The landlord claims more and the tenant insists that, the rent should be less.

6. It appears to us that the proceedings have been conducted in a most confused manner and, there has also been obvious failure on the part of the authorities below to apply the principles of the Rent Act in an accurate manner. To give but one example, it is true that the tenant failed to prove his case that room No. 3 was not in the occupation of any tenant in 1941, but his case that the hotel was in occupation of some room in the ground floor of the premises has been established. If that be so, it is difficult to understand why for the purposes of getting a comparable unit the tenant should have travelled to premises No. 100 Harrison Road and overlooked the other premises in the very same building which were let out in 1941. Then, again, the authorities below adopted for comparison the rent fixed for premises No. 100 Harrison Road. They seemed to have forgotten altogether that what they were to look for purposes of comparison, was not the rent borne by other premises at the time the case was being tried, but the rent borne in 1941. Neither Rs. 827-nor Rs. 102-8 was that rent, so far as premises No. 100 Harrison Road is concerned.

It appears from the second of the judgments adduced on behalf of the tenant that the rent was refixed at Rs. 82/- on the ground that three, years had not elapsed since the rent had been standardised. The Judge there obviously was considering the terms of Clause (3) (a) of Schedule A, but overlooked the fact that that clause speaks of rent fixed as mentioned in para. (1) (a) and that paragraph (1) (a) does not refer to fixation of rent, under the Act of 1948. Be that as it may, it is clear that neither of the authorities below had present to his mind the necessity of looking for instances of rent borne by similar premises in 1941, but for the purposes of determining reasonable rent for the premises in question in 1941, they were adopting instances of rent borne by other premises in 1950 or 1951. It is clear that in doing so they misled themselves.

7. It is now well settled that if a tenant wants the rent to be standardised and the contractual rent to be reduced, it is for him to place the Rent Controller in possession of materials which would justify a reduction. The tenant in this case does not seem to have made any effort or at least any adequate effort to do anything of the kind. He adduced some evidence, the relevancy of which is doubtful and even that evidence has been viewed by both the authorities below from a completely wrong angle of vision. In our opinion, the case has been mishandled throughout and it ought to be re-heard.

8. While on this subject, I desire to repeat what I have said on another occasion, namely, that findings of fact in one case are no evidence of that fact in another case, and therefore, it is not correct in law, when certified copies of judgments are filed, to adopt from those judgments statements of fact relating to the premises covered by them, as if the facts were proved by those statements. If, of course, the parties do not object and they adopt the statements as correct statements of fact, it may be permissible to proceed on the basis of the judgments, but otherwise, unless the authorities themselves hold an inspection of the premises concerned and satisfy themselves as to the incidents of the premises covered by the judgment, all that the judgment can be taken legally to prove is that a particular amount had been fixed as the rent for a particular premises and nothing more.

9. In my opinion, this case ought to go back for a rehearing in accordance with law. The Rent Controller ought to apply his mind to the provisions of Section 9 (1) (e) of the Rent Act of 1950 and to those of Clause (3) of Schedule A.

10. There is one other matter to which it is necessary to refer. The learned Judge below has said that he was fixing the basic rent as the standard rent as the tenancy was one for non-residential purposes and three years had not elapsed since rent was being paid at an increased rate. Neither of the parties could enlighten us as to what the learned Judge was referring to and when any increased rate had been introduced in the present case. If no question of any increased rate having been introduced arises, the landlord was clearly entitled to an addition of 10 per cent to the basic rent, whatever the correct amount of the basic rent might be.

11. For the reasons given above, both the Rules in my opinion ought to be made absolute. The judgments of both the Rent Controller and the learned Judge are set aside and the cases are sent back to the Rent Controller for decision in accordance with law.

12. As both parties have been at fault, there will be no order for costs.

Sinha, J.

13. This is another glaring instance in which the assessing authorities below have misdirected themselves as to the principles that should be followed in fixing the standard rent. It has not been realised, and it seems that the arguments before us have been on the footing of no better appreciation of the position, that it was for the tenant who wants to have the rent standardised to prove that the contractual rent was not appropriate, but that the rent was in excess of what is provided for by the Rent Control Act and that it should be, therefore, reduced.

14. It is argued before us that the tenant here was a man who came recently into the premises and was not expected to know what the position was in 1941. That may be his misfortune, but it does not affect the position in law and the onus is nevertheless upon him to show that the contractual rent is not the proper rent payable. After all, he has entered into a contract and wishes to alter it by virtue of the provisions of the Act, and, I think, it is by now well settled that it is for him to adduce evidence to show that the contractual rent should be scaled down. In this particular case, it appears that the evidence adduced showed that in the premises in question there was a tenant in December 1941, a hotel or an eating house, but the controversy raised was whether it paid a rent of Rs. 105/- or less or what space it actually occupied. At least, the appellate Judge was quite satisfied that there was no denying that there was such a tenant in occupation in December 1941; but he said that it was not established that room No. 3 formed the tenancy. Both the assessing authorities came to the conclusion that the standard rent was to be fixed according to the provisions of Section 9 (1) (e) of the Rent Act of 1950, namely, as to what the premises would have fetched on the first day of December 1941, if let out. One would have supposed that it being proved that some part at least of the premises was let out, the rent paid therefor would form the basis for calculating the standard rent. But this was completely ignored. Both the Rent Controller and the learned Judge went to a contiguous premises No. 100 Harrison Road and for the purposes of comparison certified copies of judgments in standardisation cases relating to certain rooms in premises No. 100 Harrison Road have been put on the record. These judgments are not 'inter partes' and no inspection was held in order to verify the facts stated in those judgments. The learned Judge relied on the measurements appearing in those judgments, but has not taken the trouble to have them verified. The judgments may be judgments 'in rem' to prove that the premises had been standardised at a particular rent, but the facts as to the measurements or the amenities etc. are not evidence in this case. Even so, there seems to be no evidence at all whether premises No. 100 was newly built or an ancient edifice and how it compared with premises No. 97. The amenities are not compared. In order to afford a comparison, the Court must have, whether it is acting under Section 9 (1) (e) or (g) sufficient facts to afford a comparison, and it is the duty of the applicant to adduce evidence to show it. A comparison with other premises could only be allowed if they are comparable units, that is to say, if they are similar in situation, user, extent or amenities. An arbitrary comparison is not permissible. The fullest reasons must be given so that the same can be verified.

15. Lastly, as my Lord has pointed out, the learned Judge was completely confused as regards the provisions as to the increase of rent. But inasmuch as nobody could enlighten us as to how the question of increase at all arose, it is not possible to deal with the matter further. I quite agree that both the assessing authorities have been in utter confusion as to the principles to be applied and I agree with the order made by my Lord.


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