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Kamala Bala Audhya Vs. Amulya Kumar Sen - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 317 of 1952
Judge
Reported inAIR1953Cal714,57CWN682a
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 9
AppellantKamala Bala Audhya
RespondentAmulya Kumar Sen
Appellant AdvocateSudhanshu Kumar Sen, Adv.
Respondent AdvocateKanak Kanti Ghosh, Adv.
Excerpt:
- .....9 (2) to determine on the principles clearly laid down in section 9 (2) what the reasonable rent in december 1942 would be. in order to determine this, it will remember that the rents of similar premises, in december 1941 have to be considered and not subsequent rents of premises built later. those are irrelevant. if it finds that the premises were in existence in december 1941 but the tenant cannot satisfy him by evidence which is relevant what the reasonable rent in december 1941 would have been, then remembering that the onus is on the tenant, it will dismiss the tenant's application. if the tenant satisfies him as to the reasonable rent for december 1941, he will proceed to pass an order in accordance with such determination of rent and apply schedule 'a'.if on the other hand,.....
Judgment:
ORDER

K.C. Chunder, J.

1. This Rule was issued at the instance of a landlord. The matter is very simple & has been complicated merely by misunderstanding of the law on the part of the learned Subordinate Judge. It is regrettable that in spite of numerous published decisions of this Court, such wrong ideas of the law still can prevail in a Subordinate Judge's Court.

2. The tenant asked for standardisation of rent. Therefore the onus of establishing standard rent and thereby evading payment of the contractual rent was clearly on the tenant. The tenant did not shew which of the clause would apply. It has already been pointed out by this Court that there are four different methods of computation in that small Section 9 (1) of the Rent Control Act of 1950. The landlord tried to show that not only was the premises in existence in 1941, it was let out in 1941 and he sought to prove by witness what the actual rent in 1941 was. Both the Courts have disbelieved his story as to what the actual rent was but the trial Court definitely accepted his story that the premises were in existence in 1941. The trial Court applied wrong material to come to the conclusion as to what the reasonable rent would have been in December 1941 for this premises. In trying to arrive at a reasonably payable rent in 1941, it forgot that Section 9 (2) had to be applied and therefore rent, standard or otherwise, of any premises after 1941 December, namely, rent of 1943 or of 1948 would be absolutely irrelevant for the purpose of the standard rent in 1941 December.

The evidence has to show standard rents of similar premises in December 1941. In the present case there was no attempt to prove this by the tenant, that is, there was no attempt on the part of the tenant to discharge the onus that was on him after the landlord showed that the premises were in existence in December 1941. The appellate Court was even more muddled than the trial Court. It did not set aside what the trial Court had said about the rent in 1941 and did not come to any finding that the premises were not in existence in 1941. It accepted the trial Court's estimation of evidence that the actual rent in 1941 was not as high as the landlord tried to make out. It went on to apply Section 9 (1) (g) to a case in which it did not show how that section applied. In order to make that section applicable the premises must not be in existence or let out in December 1941 and must not be substantially completed after December, 1949. There is no such evidence in the present case and no such finding by the learned Judge. The learned Judge applied the wrong principle. The Rent Controller at least applied right principle but took wrong materials for comparison. The Appellate Court absolutely went wrong even as to the principle. The result is that neither Court saw that as the onus is on the tenant and as the tenant had not discharged that onus, the tenant's application should be dismissed.

3. Mr. Ghosh has pointed out that things were not clearly understood in the Courts below and he had no opportunity to show that the landlord's contention that the premises existed in 1941 was-not perhaps correct.

4. The orders of both the Courts below are set aside and the petitioner landlord awarded costs in all the Courts upto this stage and the case is sent back to the Rent Controller first to ascertain whether the premises were in existence in 1941 December or not if the answer is in the negative, it will proceed to other parts of Section 9 (1). If the answer is in the affirmative, then it will first of all ascertain what the actual rent paid for the premises in December 1941 was. If this cannot be done, then it will proceed under Section 9 (2) to determine on the principles clearly laid down in Section 9 (2) what the reasonable rent in December 1942 would be. In order to determine this, it will remember that the rents of similar premises, in December 1941 have to be considered and not subsequent rents of premises built later. Those are irrelevant. If it finds that the premises were in existence in December 1941 but the tenant cannot satisfy him by evidence which is relevant what the reasonable rent in December 1941 would have been, then remembering that the onus is on the tenant, it will dismiss the tenant's application. If the tenant satisfies him as to the reasonable rent for December 1941, he will proceed to pass an order in accordance with such determination of rent and apply Schedule 'A'.

If on the other hand, he finds that the premises were not in existence at all in 1941 December, he will go on to decide whether the premises were in existence prior to December 1949. In the present case as far as I can make out there is no contention as yet that the premises were substantially construed after December 1949. If he finds that the premises existed after December 1941 and before December 1949, he will apply Section 9 (1) (g). In such a case it is unnecessary to compare standard, or any rents but he will apply principles which are ordinarily applied to determine what is just and, fair rent. That is all Section 9 (1) (G) requires to be determined. If on the other hand it is alleged and he finds that the premises are constructed after 1949 December, then he will apply the provisions of Section 9 (1) (f) and in future both the Rent Controller and the Appellate Court will remember these simple principles which I am crystallising here for their practical help from numerous decisions of this Court so that in future there may not be unnecessary revision applications. (5) The Rule is thus made absolute and the case remanded to the Rent Controller for decision in the light of this judgment. He will allow the tenant and the landlord further opportunities of adducing evidence in the matter.


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