PANNALAL BAKTAWARMAL Vs. NABAYANDAS DEORA

JUDGEMENT

(1.) NARAYANDAS Deora is admittedly the landlord of premises No. 46, Strand Road, Calcutta. Under him Pannalal Baktwarmal is a tenant in respect of the southern portion of a room and a Verandah, to the West of the room, in the second floor of the said premises. Under the tenant Pannalal Baktwarmal again, Mahalchand Shreekishan firm is a sub-tenant in respect of a third portion of the room let to the tenant. Apart from the subtenancy, the sub-tenant alleged, he had the right of user of the western varandah, in common with the tenant. The contractual rent payable by the tenant Pannalal Baktwarmal was at the material time Rs. 73/- per month. The rent payable by the subtenant above named was Rs. 40/- per month. After the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) had come into operation, the sub-tenant made an application, under section 16 (3) of the Act, for a declaration that the tenant's interest in so much of the premises sublet shall cease and the sub-tenant shall become a tenant directly under the landlord and also for fixation of the rents respectively payable by the tenant and the sub-tenant. In the application aforementioned both the tenant and the landlord were made parties.

(2.) THE Controller made the declaration as prayed for, excepting that he did not make any declaration to the effect that the sub-tenant had right of user of the western Varandah in common with the tenant, and, thereafter, directed his Inspector to make the necessary inspection and submit a report on the rents to be fixed. On contention of the report submitted by the Inspector as also the evidence adduced respectively by the tenant and the sub-tenant regarding rent of other comparable premises, the Controller fixed the rent payable by the tenant to his landlord at Rs. 115/- per month and the rent payable by the quondam subtenant declared to be a direct tenant under the landlord (that is to say Narayandas Deora), at Rs. 40/- per month. Both the tenant and the sub-tenant appealed against the decision-the tenant disputing the rent fixed, the subtenant disputing that portion of the order by which his prayer in respect of his right of user of the Verandah was disallowed. The appellate authority dismissed the tenant's appeal but allowed the appeal preferred by the subtenant. The orders passed by the appellate authority, in the two appeals aforementioned, are being disputed before us in these two Rules.

(3.) IN Civil Revision Case No. 2841 of 1959, directed against the part of the judgment of the Tribunal below by which the rents payable by the tenant Pannalal Baktwarmal and the subtenant Mahalchand Sreekishan firm were fixed, Mr. Pramatha Nath Mitra, learned Advocate for the tenant petitioner, contended that in fixing the rent payable by the tenant and the subtenant, under section 16 (3) of the Act, the Controller and the appellate authority had both proceeded arbitrarily. Elaborating his argument, Mr. Mitra raised two alternative contentions:- (i) He contended that in fixing the rents payable by the tenant and the sub-tenant to the landlord. the duty of the Controller, under section 16 (3) of the Act, was merely to make a proportionate sub-division of the rent, which the tenant was paying to the landlord as between the tenant and the subtenant. (ii) Alternatively, he contended that the duty of the Controller in fixing rent under section 16 (3) of the Act, was to reduce the rent payable by the tenant on principles, which govern reduction of rent in respect of deficiency in area (as in section 52 of the Bengal Tenancy Act) or apportionment or abatement of the contractual rent, in case of failure on the part of the landlord to deliver possession of part of the demised premises. So far as the sub-tenant was concerned, the Controller should fix a fair rent in respect of his direct tenancy under the landlord.