KAMALA BALA AUDHYA Vs. AMULYA KUMAR SEN

JUDGEMENT

(1.) This Rule was issued at the instance of a landlord. The matter is very simple & has been complicated merely by misunderstanding of the law on the part of the learned Subordinate Judge. It is regrettable that in spite of numerous published decisions of this Court, such wrong ideas of the law still can prevail in a Subordinate Judge's Court.

(2.) The tenant asked for standardisation of rent. Therefore the onus of establishing standard rent and thereby evading payment of the contractual rent was clearly on the tenant. The tenant did not shew which of the clause would apply. It has already been pointed out by this Court that there are four different methods of computation in that small Section 9 (1) of the Rent Control Act of 1950. The landlord tried to show that not only was the premises in existence in 1941, it was let out in 1941 and he sought to prove by witness what the actual rent in 1941 was. Both the Courts have disbelieved his story as to what the actual rent was but the trial Court definitely accepted his story that the premises were in existence in 1941. The trial Court applied wrong material to come to the conclusion as to what the reasonable rent would have been in December 1941 for this premises. In trying to arrive at a reasonably payable rent in 1941, it forgot that Section 9 (2) had to be applied and therefore rent, standard or otherwise, of any premises after 1941 December, namely, rent of 1943 or of 1948 would be absolutely irrelevant for the purpose of the standard rent in 1941 December. The evidence has to show standard rents of similar premises in December 1941. In the present case there was no attempt to prove this by the tenant, that is, there was no attempt on the part of the tenant to discharge the onus that was on him after the landlord showed that the premises were in existence in December 1941. The appellate Court was even more muddled than the trial Court. It did not set aside what the trial Court had said about the rent in 1941 and did not come to any finding that the premises were not in existence in 1941. It accepted the trial Court's estimation of evidence that the actual rent in 1941 was not as high as the landlord tried to make out. It went on to apply Section 9 (1) (g) to a case in which it did not show how that section applied. In order to make that section applicable the premises must not be in existence or let out in December 1941 and must not be substantially completed after December, 1949. There is no such evidence in the present case and no such finding by the learned Judge. The learned Judge applied the wrong principle. The Rent Controller at least applied right principle but took wrong materials for comparison. The Appellate Court absolutely went wrong even as to the principle. The result is that neither Court saw that as the onus is on the tenant and as the tenant had not discharged that onus, the tenant's application should be dismissed.

(3.) Mr. Ghosh has pointed out that things were not clearly understood in the Courts below and he had no opportunity to show that the landlord's contention that the premises existed in 1941 was-not perhaps correct.