P. K. RUKMINI BAI v. VENKATESWARA SILK HOUSE — 1971 DIGILAW 223 (KAR)

( 1 ) THESE six revision petitions arise out of the three applications Bled by the same landlady against the different tenants for fixation of fair rent under S. 14 of the Mysore Rent Control Act, 1961. The three revision petitions have been filed by the Landlady challenging the correctness of the order of the lower appellate Court and the other three revision petitions have been filed by the tenants challenging the order of the lower appellate Court by which an order remanding the application for fresh determination has been made. As common questions of law and fact are involved in these petitions, they were heard together and decided by this common judgment. ( 2 ) THE case of the petitioner-landlady is that the premises in question is a non-residential premises situated in an important locality in Bangalore, i. e. , Chickpet, Bangalore-2, in which the respondents are the monthly tenants and it is necessary to determine the fair rent. The objection raised by the tenants is that the old building was destroyed by fire and a new building was built during 1947, as such the fair rent has to be fixed at 6 per cent of reasonable cost of construction. It was stated that that if it is so fixed, then the rent which was being paid would itself be excessive. ( 3 ) THE particulars of the properties and other details which are relevant for the present purpose are given below: SI. No. H. R. C. A. no. H. R. C. fr. No. Premises No. Alleged rent in the basic period Fair rent demanded Fair rent awarded 1 2 3 4 5 6 7 1. 32/ 1966 647/62 927 Rs. 300 Rs. 600 Rs. 525 2. 33/1966 646/ 62 929/6 75 150 131-75 3. 34/1966 648 / 62 926 300 600 525 the House Rent Controller recorded the evidence and came to the conclusion that the fair rent fixed will be effective from 1st January 1963. The correctness of the decision given by the Controller was challenged before the Court of the District Judge and the learned District Judge has come to the conclusion that the premises in question was not ready for occupation prior to 1-4-1947, and therefore, the fixation of fair rent by the House rent Controller was erroneous. It is the legality and correctness of these orders that are challenged in these revision petitions. It is the legality and correctness of these orders that are challenged in these revision petitions. ( 4 ) AS the learned Counsel appearing for the respondents challenges the jurisdiction of this Court to go into the question, of fact arising in the case, I will first deal with the objection raised by him. The first contention that arises for consideration is with regard to the scope of the revision petition filed under S. 50 of the Mysore Rent Control Act, 1961. S. 50 (1) of the Mysore Rent Control Act, 1961, reads thus:" 50 (1) Revision by the High Court: - (I) The High Court may, at any time call for and examine- (i) the records relating to any decision given or proceedings taken by the District Judge; (ii) any order passed or proceedings taken by the Court under this Act or any order passed by the Controller under S. 14, S. 15, or Section 16; for the purpose of satisfying itself as to the legality or correctness of such decision, order or proceedings and may pass order in reference thereto as it thinks fit. "according to this provision, the High Court can call for and examine the records for the purpose of "satisfying itself as to the legality or correctness of such decision" and thereafter pass such order as it thinks fit. The submission made by the learned Counsel appearing for the respondents is that jurisdiction to go into the correctness of the order does not entitle the High Court to examine the evidence in the case and take a contrary view. In support of this submission, reliance is placed upon the judgment of this Court reported in E. A. Pais v. P. T. Venkatappa Setty, (1964) 2 Mys. L. J. 18. In that case, this Court considered the scope of S. 12b of the Madras buildings Lease and Rent Control Act, 1949. Under that Act, the revisional court has jurisdiction to call for and examine the records relating to any order passed or proceedings taken under this Act. . . for the purpose of satisfying; itself as to the legality, regularity or propriety of such order. It is the use of the words " legality and propriety " of the order that was under consideration. . . for the purpose of satisfying; itself as to the legality, regularity or propriety of such order. It is the use of the words " legality and propriety " of the order that was under consideration. It was held by this Court as under:" The powers of a revisional Court have always been understood to be more restricted than the powers of an appellate Court and the mere fact that an appellate Court interfered with findings of fact without sufficient reason is not a ground for interference by the revisional authority with the finding of fact by the appellate authority. But if the findings of fact reached by the appellate authority on admitted or proved facts is so perverse that no reasonable person could have reached that conclusion, the revisional authority will have a right to interfere with the findings of fact. " ( 5 ) THE provisions of S. 12b of the Madras Buildings (Lease and Rent control) Act were also considered by this Court in the case reported in u. Ahmed Hussain v. M. Mohiddin Haji, (1965) 1 Mys. L. J. 633. . This Court after consideration of all the decisions under the Madras Act and use of similar words in other enactments held that an examination of propriety would not include the examination of the correctness of the finding involving the actual reassessment of evidence. This Court at page 627 observed thus:"it should also be pointed out, that while determining the extent or ambit of a statutory power, the most important factor to be borne in mind are the nature of the corresponding duty and the object with which the duty is imposed. It is a well known rule of interpretation that where duty and power co-exist, the power is intended to enable the authority to effectively discharge its duty, and the nature of the duty has to be ascertained from the point of view of the object to be achieved by exercising that duty, which again has to be ascertained from the general scheme of the statute. Under the scheme of the Madras Buildings (Lease and Rent Control) act, the order of the appellate authority under S. 12 is final and not liable to be called in question in any Court of law, except as provided by S. 12b and the said latter section limits the interference to an examination of legality, regularity and propriety of the appellate order. " ( 6 ) THE learned Counsel for the respondents also placed reliance upon the judgment of the Supreme Court in Malini Ayyappa Naicker v. Seth Mangharaj Udhavadas Firm, AIR 1969 SC 1344 . In that case, their Lordships of the Supreme Court considering the question of the scope of the jurisdiction conferred upon the High Court under the first proviso to S. 75 (1) of the Provincial Insolvency Act, which states that the High Court for the purpose of satisfying itself that the order made in appeal was according to law may call for the records and pass such orders as it thinks fit. Their Lordships considering this proviso held as under:" Quite clearly the legislature did not confer on the High Court under the 1st proviso to S. 75 (l) of the Act an appellate power nor did it confer on it a jurisdiction to reappreciate the evidence on record. If the Legislature intended to confer power to re-examine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent Court is also a decision according to law. At the same time the powers conferred under the 1st proviso to s. 75 (l) of the Act is not co-extensive with that given to the High court under S. 100 (1) (a); decision being "contrary to law" as provided in S. 100 (1) (a) CPC. is not the same thing as a decision being not "according to law" as prescribed in the 1st proviso of S. 75 (l) of the act. The latter expression is wider in ambit than the former. The power given to the High Court under the 1st proviso to S. 75 (1) of the Act is similar to that given to it under S. 25 of the Provincial small Cause Courts Act. The latter expression is wider in ambit than the former. The power given to the High Court under the 1st proviso to S. 75 (1) of the Act is similar to that given to it under S. 25 of the Provincial small Cause Courts Act. " ( 7 ) IN my view, the decision given under the Madras Buildings Lease and Rent Control Act wherein the words of the statute are totally different cannot be applied to the question arising for consideration under the mysore Rent Control Act, 1961. Similarly, the decision of the Supreme court ( AIR 1969 SC 1344 ) deals with the use of words, "decision being contrary to law" and not the use of the words "correctness of the decision". On the contrary, the scope of S. 50 of the Mysore Rent Control Act, 1961, has been considered by the supreme Court in Central Tobacco Co. v. Chandra Prakash, (1969) 1 SCWR 1142. In that case, this is what their Lordships of the supreme Court have stated:"s. 50 of the Mysore Rent Control Act, 1961 (hereinafter referred to as the 'act') gives the High Court power to call for and examine the records relating to any decision given or proceedings taken by the district Judge for the purpose of satisfying itself as to the legality or correctness of such decision, order or proceedings and it further empowers the High Court to pass such order as it thinks fit. The learned Judge of the High Court examined the evidence and differing from the finding of the District Judge came to the conclusion that the landlord had proved that he reasonably required the premises for his own use and occupation. The High Court held that the burden of proving that eviction would cause greater hardship on the tenant lay on him and took the view that he had not discharged that burden. Counsel for the appellant contended first that it was not open to the High court in exercise of its revisionary jurisdiction to differ from the concurrent view of the two lower Courts and, secondly, it had wrongly placed the burden of proof of greater hardship on the tenant and this vitiated its ultimate conclusion. As the revisionary powers are couched in very wide terms we are not inclined to accept the first contention. As the revisionary powers are couched in very wide terms we are not inclined to accept the first contention. "this Court differing from the findings of the Court below on fact held that the premises were required by the landlord for his own use and occupation and this was on reappreciation of evidence. It was held by their Lordships of the Supreme Court that the revisional powers are couched in very wide terms and therefore the contention raised before the Supreme Court that the High Court had no jurisdiction to differ from the concurrent views of the Courts below was rejected. ( 8 ) PRIOR to the pronouncement of the decision by the Supreme Court, this Court, in the case in M. Ramachandraiah v. S. R. Shankara Narayan setty, (1968) 1 Mys. L. J. 442. considered the scope of interference by the High Court under s. 50 of the Mysore Rent Control Act, 1961, and held that the High Court is not precluded from examining the facts. It was further stated that the correctness or otherwise of the findings of fact cannot be decided without reference to the evidence bearing on the question in the context of S. 50 of the Mysore Rent Control Act. At page 446, this is what this Court has stated:" The argument of Sri M. S. Gopal, the learned Counsel appearine on behalf of the respondent, was that the word 'correctness' would not permit interference with the findings of fact, and it appertains only to conclusions arrived at by the learned District Judge on facts. He was in difficulty when a question was put to him as to the process by which such findings on facts could be decided or reviewed without reference to the evidence on which they were based. I am clearly of the opinion that the correctness or otherwise of the findings of fact cannot be dec'ded without reference to the evidence bearing on the question in the context of S. 50 of the Mysore Rent Control Act. " ( 9 ) THEREFORE, having regard to the scheme of the Mysore Rent Control act and the power conferred upon the High Court under S. 50 of the mysore Rent Control Act, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. " ( 9 ) THEREFORE, having regard to the scheme of the Mysore Rent Control act and the power conferred upon the High Court under S. 50 of the mysore Rent Control Act, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. An examination of the correctness of the finding on fact involves the actual reassessment of evidence, and therefore, this Court is entitled to go into the questions of fact and arrive at a decision. In that view, the first contention raised by the learned Counsel appearing for the respondents is rejected. ( 10 ) IN view of the decision given by me holding that this Court is competent to go into the question of fact and determine the correctness of the order passed by the Court below, I am now called upon to consider the evidence and see as to whether the decision arrived at by the Court below is correct or is required to be set aside. ( 11 ) UNDER S. 14 of the Mysore Rent Control Act, 1961, the tenant has to make an application to the Controller for fixing fair rent of the building and the previsions of S. 14 (1) (i) prescribed the period of limitation within which the application is to be filed. On receipt of the application, the Controller holds an enquiry and fixes the fair rent for the building. It is in fixing the fair rent, the Controller is required to have due regard to the facts enumerated in S. 14 (3) of the Act. S. 14 (3) (a) of the Act states that the Controller shall have due regard to the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances during the twelve months prior to the first day of April 1947. So far as S. 14 (6) is concerned, it would be applicable only if a building is constructed after the first day of April 1947. But, in so far as the buildings which are constructed before the first day of April 1947, that provision does not apply and it is the earlier provisions, which will apply and in accordance with those provisions only that the determination of fair rent is required to be made. But, in so far as the buildings which are constructed before the first day of April 1947, that provision does not apply and it is the earlier provisions, which will apply and in accordance with those provisions only that the determination of fair rent is required to be made. In my view, the important thing that is to be determined in the present case is as to whether the building has been constructed before or after the first day of April 1947. ( 12 ) IN support of the claim that building has been constructed before the first day of April 1947, evidence has been led in the case and PW. 1 g. Srinivasa Rao who was the accountant of B. Venkata Rao and S. Sajjan Rao for 30 years has been examined. ( 13 ) THE other document to which reference may be made is to Exhibit p-1 (g) the receipt dt. 19-4-1947 for having received the rent from Suba- rayudu for the two shops for 12 days from 20th March 1947 to the end of the month. This receipt along with Ex. P-2 the lease deed executed by G. Subbarayudu on the 20th March 1947 would disclose that the premises were ready for occupation, as it has been stated that the period of lease is 11 months. These documents, Ex. P-1 (g) and Ex. P-2 are regarding the premises occupied by Subbarayudu and later by Sterling Association (P) Ltd. , regarding which an application for fixation of fair rent was made and it was fixed by the Rent Controller and that was not challenged before the lower appellate Court. These documents are relied upon to show that the building was ready for occupation and I am not able to see how it can be contended that these documents are documents which are inadmissible in evidence. It was submitted by the learned Counsel appearing for the respondents that the counterfoils are not admissible in evidence under S. 32 of the Evidence Act. In my view, under S. 32 (2) of the Indian evidence Act the memorandum made in the ordinary course of business is admissible in evidence. It was submitted by the learned Counsel appearing for the respondents that the counterfoils are not admissible in evidence under S. 32 of the Evidence Act. In my view, under S. 32 (2) of the Indian evidence Act the memorandum made in the ordinary course of business is admissible in evidence. The question in the present case is as to whether the building has been constructed and the material is produced before the court to show that the building was constructed and ready for occupation and this is one piece of material that could be relied upon in support of the conclusion that the building had been constructed before 1-4-1947. I am not referring to the documents Ex. P-1 (b) and Ex. P-1 (c) and R1 relating to Venkateswara Silk House, inasmuch as they are all documents executed subsequent to 1st April 1947. In addition to this material there is another set of documents which is of considerable importance in determining as to when the buildings were ready for occupation. ( 14 ) IN this view, on the material on record, I am of the view that the building had been constructed and ready for occupation, prior to 1-4-1947. ( 15 ) THE next question that arises for consideration is what is the order that should be passed in the present cases. The learned apppellate Judge has not considered the question as to whether the fair rent fixed by the Rent Controller was proper or not. In that view, it is necessary for the learned appellate Judge to consider the remaining question and determine the same. In that view, there is no other choice but to remand the appeals back for fresh disposal of the only question remainin for decision as to whether the fair rent fixed by the Rent Controller was proper in the circumstances of the present cases. In view of the conclusion arrived at by me, C. R. Ps. 403, 412 and 237 of 1968 filed by the tenants do not survive. In the result, CRPs. 621, 622 and 623 are allowed. The order passed by the learned appellate Judge in each of these cases is set aside and the appeals are remitted back for fresh disposal in accordance with law to consider the only surviving question whether the fair rents fixed by the Rent Controller are proper or not. In the result, CRPs. 621, 622 and 623 are allowed. The order passed by the learned appellate Judge in each of these cases is set aside and the appeals are remitted back for fresh disposal in accordance with law to consider the only surviving question whether the fair rents fixed by the Rent Controller are proper or not. As the matters are pending for the last several years, I direct the learned appellate Judge to dispose of these matters within six months from this date. No costs. --- *** --- .