1950 JTR(Cal) 213
1952 AIR(Cal) 290 ; 1950 55 CalWN 287 ; 1951 55 CWN 287
HIGH COURT OF CALCUTTA
Harries, Banerjee
VURJEE VANDASS MOOLJI - Appellant
Versus
R. H. SINGHA - Respondent
Civil Rule 655 Of 1950
Decided On : DECEMBER 18, 1950
In proceedings for fixation of standard rent, the tenant must prove the rent payable on 1-12-1941 when the premises were let on that date. If the tenant fails to do so, the application must fail.
Act
Referred
:CALCUTTA RENT ORDINANCE : S.2(7)
CIVIL PROCEDURE CODE : S.115
CONSTITUTION OF INDIA : Art.227
RENT CONTROL - STANDARD RENT - FIXATION - EVIDENCE - BURDEN OF PROOF - TENANT MUST PROVE RENT PAYABLE ON 1-12-1941 - FAILURE TO DO SO - APPLICATION MUST FAIL - COURT NOT ENTITLED TO ARRIVE AT FAIR ESTIMATE OF RENT ON THAT DATE.
Fact of the Case:
Tenant applied for fixation of standard rent, alleging that on 1-12-1941, the rent was Rs. 75/-. Rent Controller found that the rent on 1-12-1941 was Rs. 143-8-0 and fixed the standard rent accordingly. Tenant appealed to the Chief Judge of the Court of Small Causes, who found that the actual rent payable on 1-12-1941 was not ascertainable, but fixed the standard rent at Rs. 171-14-0, based on the fair rent which could have been demanded on that date.
Finding of the Court:
The court found that there was no evidence before the Chief Judge upon which he could find the amount of rent payable in respect of the premises on 1-12-1941. The tenant failed to prove the rent payable on that date, and the landlord's evidence was disbelieved by the Chief Judge.
Issues: Whether the Chief Judge had jurisdiction to fix the standard rent based on the fair rent which could have been demanded on 1-12-1941, when there was no evidence of the actual rent payable on that date.
Ratio Decidendi: The court held 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.
Final Decision: The court allowed the petition, set aside the order of the Chief Judge, and dismissed the application for fixation of standard rent.
RENT CONTROL - STANDARD RENT - FIXATION - EVIDENCE - BURDEN OF PROOF - TENANT MUST PROVE RENT PAYABLE ON 1-12-1941 - FAILURE TO DO SO - APPLICATION MUST FAIL - COURT NOT ENTITLED TO ARRIVE AT FAIR ESTIMATE OF RENT ON THAT DATE.
Fact of the Case:
Tenant applied for fixation of standard rent, alleging that on 1-12-1941, the rent was Rs. 75/-. Rent Controller found that the rent on 1-12-1941 was Rs. 143-8-0 and fixed the standard rent accordingly. Tenant appealed to the Chief Judge of the Court of Small Causes, who found that the actual rent payable on 1-12-1941 was not ascertainable, but fixed the standard rent at Rs. 171-14-0, based on the fair rent which could have been demanded on that date.
Finding of the Court:
The court found that there was no evidence before the Chief Judge upon which he could find the amount of rent payable in respect of the premises on 1-12-1941. The tenant failed to prove the rent payable on that date, and the landlord's evidence was disbelieved by the Chief Judge.
Issues: Whether the Chief Judge had jurisdiction to fix the standard rent based on the fair rent which could have been demanded on 1-12-1941, when there was no evidence of the actual rent payable on that date.
Ratio Decidendi: The court held 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.
Final Decision: The court allowed the petition, set aside the order of the Chief Judge, and dismissed the application for fixation of standard rent.
AJIT KUMAR DUTT, ANIL KUMAR SETT, CHANDRA SEKHAR SEN, Nitaidas Roy
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 and 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 and 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 and 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 and 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 and 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 and if there is no evidence of the rent payable then the standard rent could not be fixed and the tenant's application was bound to fail and ought to have been dismissed.
( 7 ) THE learned Chief Judge however took into' account certain evidence and 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 and 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 and 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 and 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 and 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 and 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 and 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 and 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.