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L.R. Counsell Vs. Sukumari Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal305
AppellantL.R. Counsell
RespondentSukumari Debi
Excerpt:
- .....pronounced by the president fixing the standard rent in revision of the standard rent fixed by the rent controller.3. before the rent controller the relevant question that was raised apparently was that the premises were let out on a higher rent than what was alleged by the tenant on the 1st of november 1918. the pleader for the landlady made an application before the rent controller to the effect that the hearing of the matter should be adjourned till the decision of an appeal arising out of a suit for rent brought in the alipur court was decided. this the controller refused to do. upon that the pleader appearing for the landlady did not choose to take any part in the proceedings and did not cross-examine any of the witnesses examined on behalf of the tenant who was the petitioner.....
Judgment:

B.B. Ghose, J.

1. This case came before this Court once on a previous occasion from a decision of the President of the Tribunal. On that occasion the President had dismissed the application for fixing a standard rent on the ground that the demised premises did not fall within the provisions of the Calcutta Rent Act. The decision of the learned President of the Tribunal was set aside by this Court and the case was sent back to him for trial of the other issues involved in the case.

2. The present Rule was obtained by the tenant for the revision of the, judgment now pronounced by the President fixing the standard rent in revision of the standard rent fixed by the Rent Controller.

3. Before the Rent Controller the relevant question that was raised apparently was that the premises were let out on a higher rent than what was alleged by the tenant on the 1st of November 1918. The pleader for the landlady made an application before the Rent Controller to the effect that the hearing of the matter should be adjourned till the decision of an appeal arising out of a suit for rent brought in the Alipur Court was decided. This the Controller refused to do. Upon that the pleader appearing for the landlady did not choose to take any part in the proceedings and did not cross-examine any of the witnesses examined on behalf of the tenant who was the petitioner before the Rent Controller. On the evidence the Rent Controller found that the premises were let out on a rent of Rs. 235 per month on the 1st of November 1918, and adding 10 per cent to that amount he fixed Rs. 259 as the standard rent for the demised premises.

4. The landlady applied for revision of that order under Section 18 of the Rent Act on various pleas. A large number of issues were framed by the President. The material finding with regard to the rent at which the premises were let on the 1st of November 1918 as found by the Controller was affirmed by the President of the Tribunal. The learned President then took up for his consideration what were the 5th and 6th issues before him. These had reference to the fact whether a standard rent had been previously fixed with regard to the premises between two persons, namely, Tuni Meerza and Wishart and to a previous order with regard to the fixing of standard rent of a portion of the building which is now in question which is said to have been 6/7ths of the disputed premises. The President, while observing that fixing of standard rent is an order in rem, did not accept the fixing of the standard rent between Tuni Meerza and Wishart as such on the ground that the order was passed on compromise between the parties. He, therefore, used the fact that the rent was standardized only as a piece of evidence in coming to his conclusion and he made the same use of the standard rent fixed for the portion of the premises. The argument which he used was that in fixing the rent for the portion (6/7) ths of the demised premises) the Rent Controller took into account what he thought to be the proper standard rent of the entire premises. This finding he used for the purpose of coming to his conclusion, which is the vital question in this case, that the rent at which the premises were let on the 1st November 1918 was too low. There was another fact which he took into consideration in coming to his conclusion and it was that the premises were let out at Rs. 280 in November 1913.

5. The decision of the President turned upon the question involved in the fourth issue before him.

6. The point taken on behalf of the petitioner before us may be shortly stated thus: under Section 15, Sub-section (3), Clause (d), the Sent Controller may fix the standard rent at such amount as he deems just where the rent paid on the 1st day of November 1918 was in the opinion of the Controller unduly low and the discretion of the Controller is limited to the first portion of the proviso (i) where it is stated that under Clause (d) the standard rent shall not be fixed at a higher amount than the highest rent actually paid for the premises at any time since the 1st day of November 1918. As I have already stated the procedure followed by the opposite party before the Rent Controller was such that the Rent Controller was not called upon to exercise his judgment and to give his opinion as to whether the rent which was paid on the 1st November 1918 was unduly low or not. The Rent Controller found the rent as it was on the specified date. There was a dispute as regards the amount of rent paid at the time which he decided in favour of the allegation made by the tenant and which has been found to be correct by the President of the Tribunal. Can the landlady under such circumstances by an application for revision of the order of the Rent Controller under Section 18 of the rent Act, start a new point and allege that the rent at that time was unduly low and ask for the opinion of the President and get a standard rent fixed on that basis by the President?

7. It seems to me that the contention on behalf of the petitioner is sound. I think that under the Act the Controller should first form his opinion whether the rent on the prescribed date was unduly low under Clause (d) of Section 15(3) of the Rent Act, and then he is to exercise his discretion in fixing the standard rent. When he does that it is open to the President of the Tribunal to revise that order on an application made by any of the parties. It seems to me a wrong application of the word 'revision' to say that although the decision of the Rent Controller was not sought for on a particular point it was open to any of the parties by an application for revision to the President of the Tribunal to start a new point altogether and to have his decision--not revising a decision of the Rent Controller but a new decision of his own--for the first time.

8. It is contended on behalf of the opposite party that Section 24 of the Rent Act, which lays down that in revising the decision of the Kent Controller the President of the Tribunal shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, for the regular trial of suits, implies that the President can treat the application for revision as a suit irrespective of what was done before the Rent Controller. It seems to me that that is not the proper reading of that section. Although it is difficult to understand what is really meant by that provision, it seems to be clear that the President of the Tribunal is to follow the procedure laid down in revising a decision of the Rent Controller. If there is no decision of the Rent Controller to revise there is nothing which the President of the Tribunal can revise. Apparently this section lays down that where there is a decision of the Controller on a particular question the President, in revising that decision, may take further evidence and come to his own conclusion haying the decision of the Controller before him.

9. It seems to me, therefore, that the President of the Tribunal had no jurisdiction under Section 18 or Section 24 of the Rent Act to express his opinion as to whether the rent paid on the 1st of November 1918 was unduly low or not in the absence of anything to show that the Rent Controller was invited to express his opinion upon that point.

10. It has been further argued on behalf of the opposite party, that assuming that the President had no jurisdiction to fix the standard rent on the basis that the rent paid on the 1st of November 1918 was unduly low, he has fixed the standard rent after taking into consideration the two proceedings before the Rent Controller to which I have already referred. But the judgment of the President of the Tribunal can hardly be construed in that way. It is quite clear that he treats the decisions in both the proceedings as evidence for the purpose of coming to the conclusion that the rent paid on the 1st November 1918 was too low.

11. An attempt was made to support the decision of the President of the Tribunal on the ground that the standard rent fixed in the case between Tuni Meerza and Wishart should be considered as a decision in rem, because although there is a recital of the decision having been arrived at on consent, the Rent Controller was not authorized to fix a standard rent on consent of the parties. That may be so. But it is quite clear that the Rent Controller who had decided that case treated his decision as having been arrived at on consent of parties. If that is so the President of the Tribunal was quite right in his opinion that it could not operate as a judgment in rem. Nor could the decision fixing a standard rent of a portion of the premises be so considered as the two premises are not identical.

12. In my opinion, therefore, the judgment of the President of the Tribunal cannot stand and must be reversed and the decision of the Rent Controller restored.

13. The Rule is made absolute with costs; the hearing fee will be five gold mohurs.

Cuming, J.

14. I agree.


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