MAFAZZAL HOSSAIN Vs. AYESHA BIBI

JUDGEMENT

(1.) This is an application in revision at the instance of the tenant and it is directed against an order fixing the standard rent in respect of the premises held by the tenant. It appears that the tenant was holding the premises in question at a monthly rent of Rs. 268-2-0 and on the 6th of February the tenant instituted Case No. 136/13 of 1950 for fixation of the standard rent under the Act of 1948. Under the order of the Rent Controller a local inspection was held by an Inspector. The Inspector submitted his report on the 14th of March, 1950. After considering the evidence in the case and the report of the Inspector the Rent Controller fixed the standard rent at Rs. 247-4-0 with effect from March, 1950. Against that decision both the tenant and the landlord filed two appeals, the tenant's appeal being Appeal No. 1056 of 1950 and the landlord's appeal being Appeal No. 1147 of 1950. The appellate court allowed landlord's appeal and dismissed the tenant's appeal. As a result of the decision of the appellate court the rent of the premises in question has been fixed at Rs. 291-3-9 pies with effect from May, 1950. Against that decision the tenant has obtained the present Rule.

(2.) It appears from the judgment of the appellate Court that the appellate Judge personally inspected the premises and heard arguments of parties. Mr. Sen appearing in support of the Rule has argued that under the Act of 1950 the appellate Judge had no jurisdiction to hold local inspection and therefore the judgment of the appellate court has been vitiated by what he saw in the course of his personal inspection of the premises in question. Section 32(3) of the West Bengal Premises Rent Control Act of 1950 provides that the powers and procedure of the court in entertaining and hearing the appeal shall be the same as in appeals from orders under the Code of Civil Procedure, 1908. In the present case there was before the appellate court a report made by the Inspector who was appointed by the Rent Controller for the purpose of holding a local inspection and it appears that the appellate court held the local inspection for the purpose of understanding that report which was submitted by the Inspector. As a result of the local inspection no new evidence has been admitted in the case and we cannot say upon the materials on the record that the local inspection held by the appellate court has in any way vitiated the hearing of the appeal. Mr. Sen has also relied upon the decision of this Court in the case of --'Amulya Kumar v. Annada Charan Das', 37 Cal. WN 143. This case however deals with the powers of the Court under p. XXVI, Rule 4 C.P.C. That case has no application to the facts of the present case because here the powers are to be regulated by Section 31 and Section 32 of the West Bengal Premises Rent Control Act. It cannot be said that the court in holding an inspection under the Rent Control Act in the present case is exercising any of the powers conferred by Order XXVI, Rule 4 of the Code of Civil Procedure. Upon the materials on the record the appellate court has come to the conclusion that the tenancy consists of three parts; one part comprising an area of 298 square feet was let out on the 1st of December, 1941, at a rent of Rs. 175/- per month. Besides this there are two other parts which were subsequently added to the tenancy and the subsequent additions consisted of a corridor portion comprising an area of 86 square feet and a rear portion which was known as Suite No. 6. The appellate Court has arrived at the rent of the corridor portion of the tenancy at the rate which was paid in respect of the original por- tion on the 1st of December, 1941. In doing this the appellate court has presumably acted under Clauses (e) of Section 9 of the West Bengal Premises Rent Control Act of 1950. We are of the opinion that this clause does apply to the circumstances of the present cases because here the whole of the premises were not let out on the 1st of December, 1941 and therefore under the last clause the appellate court was justified in taking the rent which would have been reasonably payable for the premises if let out on the 1st day of December, 1941, as the basic rent. After making the calculations on this basis the appellate court has added ten per cent according to the provisions of schedule A of the Act. We do not think that there is any material irregularity or any material failure of justice in this case within the meaning of Section 32(4) of the Act.

(3.) Mr.Sen has further argued that the report of the Inspector which was submitted on the 14th of March, 1950, is not admissible in evidence in this case because the Inspector himself was not examined as a witness. We do not think that there is any substance in this contention. Section 31 of the Act empowers the Rent Controller to authorise any officer subordinate to him to enter and inspect any premises or to hold the inspection himself. If the Rent Controller is empowered to authorise a subordinate officer to inspect the premises we think that he is also empowered to take into consideration the report submitted by the Inspector. The value of the report submitted by the Inspector is certainly open to question if the Inspector is not called as a witness in the case, but we cannot go to the length of saying that the report itself becomes inadmissible because the Inspector has not been examined as a witness. In this case the courts below have relied upon the report submitted by the Inspector upon a consideration of the other evidence and circumstances of the case and we do not think that there is any illegality or irregularity in this procedure.