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Vurjee Vandass Moolji Vs. R.H. Singha and Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 655 of 1950
Judge
Reported inAIR1952Cal290,55CWN287
ActsConstitution of India - Article 227; ;Code of Civil Procedure (CPC) , 1908 - Section 115; ;Calcutta Rent Ordinance, 1946 - Section 2(7)
AppellantVurjee Vandass Moolji
RespondentR.H. Singha and Co.
Appellant AdvocateAjit Kumar Dutt and ;Nitaidas Roy, Advs.
Respondent AdvocateChandra Sekhar Sen and ;Anil Kumar Sett, Advs.
DispositionPetition allowed
Excerpt:
- .....has been made under article 227 of the constitution & i think there can be no doubt that the chief judge of the small ' cause court is a tribunal functioning in an area over which this court exercises jurisdiction. indeed it has not been contended that this application would not lie under article 227 of the constitution.3. the facts of the case are that the tenant of certain premises, no. 37 ezra street in this city alleged that he took a tenancy of the premises in the year 1945 at a monthly rental of rs. 250/-which was subsequently enhanced to rs. 275/- per month. he further alleged that the rent payable for these premises on 1-12-1941 was rs. 75/-. he, therefore, claimed that the standard rent should be fixed upon that basis. ?4. the rent controller came to the conclusion that on.....
Judgment:

Harries, C.J.

1. This is a petition for revision; of an order of the Chief Judge of the Court of Small Causes, Calcutta in which lie allowed an appeal from a decision of a Rent Controller & fixed the standard rent of certain premises.

2. It has been'held by this Court that decisions given by appellate tribunals under the Rent Control Acts were not revisable in this Court under Section 115, Civil P. C. This application has been made under Article 227 of the Constitution & I think there can be no doubt that the Chief Judge of the Small ' Cause Court is a tribunal functioning in an area over which this Court exercises jurisdiction. Indeed it has not been contended that this application would not lie under Article 227 of the Constitution.

3. The facts of the case are that the tenant of certain premises, No. 37 Ezra Street in this city alleged that he took a tenancy of the premises in the year 1945 at a monthly rental of Rs. 250/-which was subsequently enhanced to Rs. 275/- per month. He further alleged that the rent payable for these premises on 1-12-1941 was Rs. 75/-. He, therefore, claimed that the standard rent should be fixed upon that basis. ?

4. The Rent Controller came to the conclusion that on 1-12-1941 these premises were let at Rs. 143-8-0 & after making the statutory additions he-declared the standard rent of the premises to be Rs. 22W3-0.

5. The tenant appealed to the Court of the Chief Judge of the Court of Small Causes. The learned Judge came to the conclusion that the actual rent payable for these premises on 1-12-1941 was not ascertainable. He however was of opinion: upon certain evidence that. the fair rent which could have been demanded for these premises on 1-12-1941 was Rs. 125/- per month, He accordingly fixed the standard rent upon that basis, the amount being Rs. 171-14-0.

6. Mr. Ajit Kumar Dutta on behalf of the' landlord petitioner has contended that the learned Chief Judge had no jurisdiction to proceed in the manner he did. The application was by the tenant for fixation of standard rent & of course it was for the tenant to prove his case. He alleged that on 1-12-1941 the rent of the premises was Rs. 75/- but he called no evidence to establish this fact; neither did he go into the witness box himself. The landlord called evidence with a view to showing that the rent payable on 1-12-1941 was Rs. 143-8-0 per month. But this evidence was disbelieved by the learned Chief Judge. He is the final court of fact & credibility of witnesses is a matter entirely for him. It is clear therefore that there was no evidence at all before the learned Chief Judge upon which he could find the amount of rent payable in respect of these premises on 1-12-1941. Admittedly they were let on that date & if there is no-evidence of the rent payable then the standard rent could not be fixed & the tenant's application was bound to fail & ought to have been dismissed.

7. The learned Chief Judge however took into' account certain evidence & came to the conclusion that the fair rent for the letting, which as I have said admittedly existed on 1-12-1941, was Rs. 125/- per month & he assessed the standard rent on that basis.

8. It is quite clear from the definition of 'stan dard rent' in the Calcutta Rent Ordinance of 1946 which is applicable, that where premises were let on 1-12-1941, the standard rent must be calculated on the basis of the rent actually paid by the tenant in such letting. It is only when there was no letting on 1-12-1941, that the Court is entitled to consider what a fair rent of the premises would have been if there was a letting on that date. Where however there was a letting the rent payable must be ascertained & the standard rent fixed with reference to such rent.

9. Where the tenant applies for fixation of standard rent he must prove the rent payable on 11-12-1941 when the premises were let on that date. If he fails then his application must fail & that is what has occurred in this case.

10. Mr. Chandra Sekhar Sen seems to suggest that in these proceedings some different rule should be applied than is applied in ordinary litigation, namely, that the person who asks for relief must prove his case. In the present case the tenant must establish what the standard rent is & if he does not produce the material upon which the court can ascertain what the standard rent is then his application must fail. The court is not entitled to arrive at some fair estimate of what the rent should have been on 1-12-1941 when on that date the premises were admittedly let at a lent which could be ascertained.

11. Mr. Sen has suggested that we should restore the order of the Rent Controller because there was material upon which the Controller found that the rent on 1-12-1941 was Rs. 143-8-0. Unfortunately however the Chief Judge has disbelieved this evidence & therefore there is now before us no evidence at all as to what the rent was on the material date. That being so, the application was bound to fail & should have been dismissed by the learned Chief Judge.

12. In the result therefore this petition is allowed, the order of the learned Chief Judge is set aside & the application for fixation of standard rent is dismissed. The petitioner is entitled to his costs in this court the hearing fee being assessed at three gold mohurs.

Banerjee, J.

13. I agree.


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