Biswanath Dey vs Rakshit Sadhu Khan

Banerjee, J.—This is a petition for revision of an order, passed in appeal dismissing the tenant''s application for fixation of standard rent of two rooms, which are part of a bigger premises on Station Road, Kanchrapara.

The case appears to have passed through a career of tragedies. Started on July 27, 1949, the rent was at first fixed at Rs. 22-12 per month against the contractual rent of Rs. 70 per month, by Shri D.C. Pal, a Sub-Deputy Collector of Barrackpore, acting as Rent Controller. His judgment was set aside in appeal by a Subordinate Judge who remanded the matter to the same Sub-Deputy Collector for re-hearing. On remand the same rent, viz., Rs. 22-12, was fixed by the said Sub-Deputy Collector, by his order dated August 18, 1952. The judgment was affirmed in appeal but was set aside in revision by this Court.

The reason how such a state of affairs came to be, appears from the judgment of Chunder J. passed in revision, an extract from which is quoted below:

It is stated that the rent fixation case was taken up by a Sub -Deputy Collector who had no jurisdiction and who provisionally fixed the standard rent. An appeal being taken to the District Judge he transferred it to the Subordinate Judge who was not empowered under the Act of 1948 to hear appeals. The original application was under the Rent Control Act of 1948. The whole proceeding in appeal having been before a court without jurisdiction must be set aside and the appeal must be remanded to the learned District Judge for disposing of it according to law and in this connection he will consider the question of jurisdiction of the original Rent Controller''s Court.

After remand by this Court, the appeal against the rent fixed by Shri D.C. Pal, Sub-Deputy Collector, was placed before Shri J.C. Majumdar, District Judge of 24-Parganas.

By his judgment dated May 17, 1954, the learned District Judge allowed the appeal and remanded the matter to the proper forum with the following observations:

(a) Shri D.C. Paul, Sub-Deputy Magistrate, Barrackpore, was appointed Additional Rent Controller for Barrackpore subdivision u/s 28(2) of the Act of 1950 by Notification No. 4092 L.R., dated the 2nd April, 1951, published in the "Calcutta Gazette" of April 12, 1951. As such Shri D.C. Paul acted without jurisdiction in disposing of the application for fixation of standard rent which was presented on 27th July, 1949, before the Act of 1950 came into force. He therefore acted without jurisdiction in trying this case and the order made by him must be set aside and the case should be remitted to the Rent Controller, viz., the Sub-divisional Magistrate, Barrackpore, who was appointed under the Act of 1948.

(b) In assessing standard rent he shall take fresh evidence and shall be guided by the following principles of the Act of 1950.

He will first of all ascertain if the premises in dispute were in existence on the 1st of December, 1941, and if so, whether they were then let out to a tenant. If it is found that the premises did exist on the 1st December, 1941, and were let out to tenant, ho should next find out what was the rent which the premises then bore. If that rent can be ascertained the amount of that rent should be taken as the basic rent and further additions must be made thereto for the purposes of determining the standard rent in accordance with the provisions of Rule 2 or Rule 3 of Schedule A, as the case may be.

If it is found that the premises did exist in December, 1941 and were also let out to a tenant, but the rent at which it was let out cannot be ascertained, then the Rent Controller is to proceed u/s 9(2) and determine what the rent may have been at which the premises were, in all probability, let out in December, 1941. After ascertaining that amount, he has to take that as the basic rent and then work out the standard rent by reference to the provisions of Rule 2 or Rule 3 of Schedule A, as the case may be.

If, however, it is found that the premises were not in existence on the 1st December, 1941, or having been in existence were not let out, then the Rent Controller should proceed under the provisions of Section 9(1)(e) and ascertain at what rent the premises, if let out in December, 1941, could reasonably have been so let. The amount of the rent so ascertained, would be the basic rent in such a case and the Rent Controller is then to apply the provisions of Schedule A for the purpose of determining the standard rent although the Schedule would not in terms apply.

Where none of the above provisions of Section 9 applies, the Rent Controller should proceed under the provisions of Section 9(1)(g).

The Rent Controller who heard the matter after the remand by Shri J.C. Majumdar, District Judge, took evidence and also held a local inspection and passed judgment dated July 1, 1957 and came to the following conclusions:

Considering the prevailing rate of rent for similar premises and positive evidence adduced by the 1st party, I find absolutely nothing to disbelieve the 1st party''s evidence that on 1st December, 1941, the premises were in occupation of one Alauddin and that he paid Rs. 11 per month. * * * Accordingly the basic rent is fixed to be Rs. 11 (eleven) per month. Since the premises in question are used for business purposes the standard rent would be the basic rent plus 10 per cent, increase as laid down in Rule 3 of Schedule (A) of W.B.P.R.C. Act, 1950.

There was an appeal preferred by the landlord against the judgment passed by the Rent Controller. Shri A.K. Sen Gupta, the learned District Judge, 24-Parganas, by his order, dated the 28th'' February, 1958, allowed the appeal and dismissed the application for fixation of rent made by the tenant. In dismissing the appeal the learned District Judge gave the following reasons, namely, (a) that Taramoni the original landlord opposite party died on June 9, 1956, during the pendency of the proceedings before the Rent Controller leaving her surviving 5 minor sons and two minor daughters. Her heirs had not been properly brought on the record; (b) the premises as it now is was not in the possession of Alauddin on the material date, namely, December 1941, and the finding of the Rent Controller that the basic rent of the premises in dispute was Rs. 11 per month was unacceptable; (c) There was no material on record as to what would have been the basic rent reasonably payable for the premises if let on December, 1941, the burden of proving standard rent being on the Petitioner (tenant). He having failed to prove the same the contractual rent must prevail.

The present Rule was obtained by the tenant Petitioner against the order of dismissal of the petition for fixation of rent as stated above.

Mr. Pramatha Nath Mittter, the learned Advocate for the landlord opposite parties, emphasised on the point of improper substitution of the heirs of the original landlord as a preliminary objection to this Rule.

Rule 9 of the West Bengal Premises Rent Control Rules, 1950, provides that in making enquiries under the Act the Controller shall follow, as nearly as may be, the procedure laid down in the CPC Code, 1908, for regular trial of suits. The above Rule certainly attracts the provisions contained in Order XXII of the CPC as to abatement, to enquiries or proceedings for fixation of rent before the Rent Controller.

The point as to abatement arises from the following circumstances. The original landlord Taramoni died on June 9, 1956, admittedly leaving five sons and two daughters, all minors. On June 15, 1956, the lawyer agent, appearing for the deceased landlord, brought to the notice of the Rent Controller the death of the sole opposite party and volunteered to supply the names of her heirs later on. On the same day the tenant Petitioner filed an application for substitution of the heirs of the deceased landlord making a somewhat peculiar prayer. It was stated in the said application that Taramoni, the landlord, was dead leaving certain persons, named further down in the petition, as her heirs who were all minors living under the guardianship of their father Indubhusan, excepting a married daughter Karunamoyee by name, who was living under the guardianship of her husband. At the place where the heirs were named in the said petition, it was written, "Raghu Sadhu Khan (minor), "Ranjit Kumar Sadhu Khan (minor) and five or six persons "whose names will be supplied later on after ascertainment".

Thereafter on July 6, 1956, the tenant Petitioner made a second application praying that notice of substitution be sent to the following successors and guardians:

(1) Indu Bhusan Sadhu Khan, husband of 2nd party; (2) Raghunath Sadhu Khan, (3) Ranjit Kumar Sadhu Khan, both sons of 2nd party; (4) Karunamoyee Sadhu Khan, wife of Ram Chandra Sadhu Khan, daughter of second party.

On the two applications above referred to by the tenant Petitioner, the Rent Controller passed an order on July 6, 1956, to the following effect:

Seen petition of 1st party praying substitution of names of successors to 2nd party. Issue notice upon the successors of 2nd party as prayed for.

A statement supplying the particulars of the persons said to be heirs and legal representatives of the deceased landlord was filed on July 14, 1956, on the same line as in the application dated July 6, 1956. One week later, i.e., on July 21, 1956, another statement supplying further particulars of persons, said to be heirs and legal representatives of the deceased landlord, was filed by the Petitioner and more names of heirs were disclosed this time, namely:

(1) Sm. Sidheswari Sadhu Khan; (2) Sambhu Sadhu Khan, (3) Asoke Sadhu Khan, (4) Khoka Sadhu Khan, minor sons of late Tararnoni Dassi; (5) Malina Sadhukan, (6) Bimala Sadhu Khan, minor daughters of late Tararnoni Dassi.

Minor Nos. 2 to 6 being represented by their father guardian Indu Bhusan Sadhu Khan.

The last statement in the series supplying particulars of the names and particulars of persons said to be heirs and legal representatives of the deceased landlord was filed, by the tenant Petitioner, on August 27, 1956, this time asking for service of notice on the following persons:

(1) Indu Bhusan Sadhu Khan for self, husband of late Taramoni Dassi.

(2) Sm. Sidheswari Sadhu Khan for self, grandmother of late Taramoni Dassi.

(3) Indu Bhusan Sadhu Khan as father and natural guardian of her minor sons and daughters represented by him, viz., (1) Sambhu Sadhu Khan, (2) Asoke Sadhu Khan, (3) Aloke Sadhu Khan, (4) Raghunath Sadhu Khan, (5) Ranjit Sadhu Khan, (6) Malina Sadhu Khan, and (7) Bimala Sadhu Khan.

(4) Sm. Karunamoyee Sadhu Khan, daughter of the Tararnoni Dassi, wife of Ram Chandra Sadhu Khan.

Considerable difficulty appears to have been experienced by the tenant applicant, in effecting service of notice on the persons sought to be substituted in place of the deceased landlord and ultimately in his attempt to effect substituted service the notice was also published in a local newspaper.

Thereafter, on September 3, 1956, the Rent Controller passed an order directing service to be effected under Order V, Rule 20 of the CPC and also directing that the minors be represented by a pleader guardian named by him. After service under Order V, Rule 20 of the Code had been effected, the Rent Controller passed an order on September 7, 1956, to the following effect:

Names of heirs of O.P. substituted according to law. The lawyer-guardian of the minors appears. He relies on the original w.s. and does not want to file any supplementary w.s. Fix 21st September, 1956, for evidence of 1st party.

Before the date fixed for hearing arrived, Ranjit Kumar Sadhu Khan who had been substituted as one of the sons of the deceased landlord entered. appearance, through his father and natural guardian, on September 14, 1956, and inter alia, objected to the substitution of the heirs of Taramoni Dassi as made by the tenant Petitioner. According to Ranjit, Indu Bhusan Sadhu Khan, Sidheswari Sadhu Khan and Karunamoyee Sadhu Khan were not heirs or legal representatives of Taramoni Dassi, the deceased landlord and the sons and daughters who succeeded to their mother, Taramoni Dassi, were (1) Rakshit Oh. Sadhu Khan, (son), (2) Ranjit Kumar Sadhu Khan (son), (3) Parikshit Chandra Sadhu Khan (son), (4) Pratap Chandra Sadhu Khan (son), (5) Anutap Chandra Sadhu Khan (son), (6) Dayamoyee Sadhu Khan (daughter) and (7) Kanchan Bala Sadhu Khan (daughter), all minors living under the guardianship of their father Indu Bhusan Sadhu Khan.

On the objection taken as above, the Controller passed the following order on the 24th September 1966:

On a consideration of the objections raised by the second party, I find that since the natural guardian of the minors of the 2nd party has appeared, it is now his turn to point out if any additions or alterations should be made to the names of the O.P. The trial cannot stop for nonjoinder or misjoinder of parties. The 1st party made all possible attempts to serve notice upon the O.P. The ejectment decree said to have been passed against the 1st party (tenant) was made after the institution of this R. C. ease. As this case involves a judgment "in rem" and not "in personam", I do not think that is a valid objection on this score. * * *

The position that the deceased landlord was not succeeded by Indu Bhusan Sadhu Khan was not disputed by the tenant Petitioner before the Rent Controller, as is evidenced from an application filed by the tenant Petitioner on February 2, 1957. In that application it was alleged that possibly through ministerial oversight the cause title of the original petition, filed on July 27, 1949, had not been amended, as required, by recording the names of the substituted legal representatives and it was prayed that Karunamoyee, representated by her husband and guardian Ram Gopal Sadhu Khan, Ranjit Kumar Sadhu Khan, Rakshit Chandra alias Raghunath Sadhu Khan, Parikshit Chandra alias Sambhu Sadhu Khan, Anutup Chandra Sadhu Khan, Prtap Chandra Sadhu Khan, Dayamoyee alias Malina Sadhu Khan and Ranisharnabala. alias Bimala Sadhu Khan, who are all minors represented by their father guardian Indu Bhusan Sadhu Khan, be substituted in place of the deceased landlord Tararnoni Dassi. This application was objected to on behalf of Ranjit but no order appears to have been passed on the said application.

In the meantime, while Tararnoni was alive she had obtained a decree for ejectment against, the Petitioner, on March 25, 1953 and on the ground that there was no present relationship of landlord and tenant between the parties, there was an objection filed on behalf of Ranjit on October 26, 1956, to the effect that in the absence of existing relationship of landlord and tenant the application for fixation of standard rent was not maintainable. The Rent Controller did not pass any order on the aforesaid petition, presumably because by his order, dated the 24th September, 1956, he had already decided that the passing of the ejectment decree was no bar to the continuance of the proceedings for standardisation of rent.

In the background of events hereinbefore narrated, Mr. Mitter, the learned Advocate for the opposite parties, urged three points, namely (a) that Karunamoyee, Indu Bhusan and Sidheswari were no heirs of Tararnoni, (b) that of the five sons and two daughters who were heirs of Tararnoni, only Ranjit was correctly named. The others were not and therefore those persons must be taken to have never been substituted in place of the deceased landlord and the proceedings must be treated as having abated, and (c) that assuming for the sake of argument that the tenant Petitioner was not aware of the real names of the sons and daughters of Tararnoni, until the same were disclosed, on behalf of Ranjit, in his application dated the 14th September, 1956, there was no explanation why the tenant Petitioner took no steps to have the heirs brought on the record by their real names until February 3, 1957. In the absence of such explanation the application for substitution must be treated as barred by limitation. Mr. Mitter commented in passing that the application, dated the 2nd February, 1957, was not only bad for want of explanation therein of the delay between the 14th September, 1956 to the 2nd February, 1957, but was worse because of the disingenuous attempt made in it to throw the blame on the office of the Rent Controller.

M.J.K. Sen Gupta appearing for the Petitioner did not dispute that Karunamoyee, Indu Bhusan and Sidheswari were not heirs to the deceased landlord. He argued however that the inclusion of the names of unnecessary persons, who were not heirs, in the petition for substitution, did not prejudicially affect the application, in so as it was one for substitution of necessary and proper persons, as heirs and legal representatives of the deceased landlord. In my judgment, Mr. Sen Gupta is right in his contention and I hold that the application for substitution did not become bad only because in addition to the names of proper and necessary persons as heirs, names of other persons, who were not heirs, were erroneously included in the petition.

It is not now disputed that Taramoni Dassi, the deceased landlord, left her surviving five sons and two daughters, excluding Karunamoyee, who being a married daughter was no heir of the deceased. In the first application for substitution two sons were named, one of them wrongly and it was further stated that there were five or six other minor heirs whose names would be supplied later on, after ascertainment. The names of the remaining four sons and two daughters were supplied, on July 21, 1956, all wrongly. It should, however, be noted that this was done within 90 days of the death of Taramoni, the deceased landlord. The Petitioner persisted in his error until the order for substitution was made, on September 7, 1956. It cannot, therefore, be disputed that the intention of the Petitioner throughout was to substitute the five sons and two daughters of the deceased landlord Taramoni, who were the real heirs of the deceased and also three more persons, namely, the married daughter, the husband and the grandmother of the deceased, whom the Petitioner erroneously thought to be entitled to the heirship of the deceased. I have already held that the inclusion of the names of additional unnecessary persons, who were not heirs, was a matter of little consequence. The point that calls for my decision is what is the effect of substitution of real heirs in wrong names. In my opinion, if the intention of the Petitioner was to continue the proceedings against all the legal heirs of the deceased landlord Taramoni, then the fact that they were wrongly described by name did not result in the abatement of the proceedings. A difficulty might have arisen if any of the heire had been left out. But in this case all the five sons and two daughters, who inherited the interest of the deceased landlord Taramoni, were sought to be substituted and none was left out. In such circumstances, Tribunals and Courts would have the power to correct the mis-description in names and amend the records of the proceedings and also serve notice of the proceedings on the heirs by their real names. The point was considered in an English decision reported in Challinor v. Roder and Ors. (1895) I.T.L.R. 527, In that case an action was brought by a writ issued on May 2 1884, upon a promissory note due. on May 4, 1878, so that the six years after which the debt, under the Statute of limitations, would have been barred had all but expired. The writ was issued against three persons; as executors of one Findlow, deceased-Nixon, Edwards, and Bill. Of these the name of John Bill had been inserted by a mistake, the third executor''s name being John Myatt, who had, as a matter of fact, acted as an executor and dealt with the testator''s estate. Before the expiration of the 12 months during which the writ would have been properly served, the Plaintiff or his solicitor, without any leave of the Court having been first obtained, and, therefore, irregularly, altered the writ by substituting the name of John Myatt for that of John Bill. This was, of course, done at a time when, so far as Myatt was concerned, any new writ would have been barred by the statute. Myatt was served with the writ so altered and duly entered an appearance to it. On an application subsequently by the Plaintiff to a Judge at Chambers an order was made under Order XVI, Rule 11, amending the writ by striking out Bill''s name and substituting that Myatt. On an appeal by the latter against this order Mr. Justice Denman, Mr. Justice Grove dissenting, held as follows:

The ease came within, the discretion vested in a. Judge at Chambers by virtue of Order XVI, Rule 11, which gave him power to join any person as a co-Defendant who ought to have been joined. His Lordship was of opinion that Myatt ought to have been joined ; ho had acted as executor in relation to the subject matter of the action and it was only just to his co-executors that he should be joined with them as a Defendant as soon as possible. It was neither just nor reasonable that because an executor had been accidentally omitted from a writ, he should have the benefit of the Statute of Limitations while his co-executors could not have it, and that he should so escape by the merest technicality.

The view of Denman J. was followed by the High Court of Madras in a case reported in Narayan Sastrigal v. Mamgalathamal AIR (1914) Mad. 636. Wallis and. Ayling JJ. in delivering the judgment observed as follows:

If the Plaintiff intended to sue Narayana Sastri but mistook his name and entered the name Vaithianada instead, amendment was rightly allowed and the suit is not barred (Challinor v. Roder) (1895) I.T.L.R. 527 (supra). If however the Plaintiff intended to sue the individual Vaithianada under the mistake that he (Vaithianada) had obtained the order or under any other error, then the suit cannot be considered to have been instituted against Narayana within the period of limitation and must be considered barred.

The next question is that having come to know of the real names of the heirs of the deceased landlord as far back as September 14, 1956, whether the Petitioner could wait still further and then make an application, as late as February 2, 1957, to have the records properly amended. In my opinion, there is no period of limitation prescribed for having the names of persons substituted under wrong names amended thereafter. Therefore, although the Petitioner had no justification to wait for unreasonable length of time to have the records amended, still then I am of opinion that no question of limitation arises.

In the view that I take of this matter I over-rule the preliminary objection raised by Mr. Mitter.

On the merits of the case Mr. Sen Gupta argued that the judgment of the court of appeal below was not in accordance with the directions contained in the order of remand made by Shri J.C. Mazumdar, District Judge, on May 17, 1954. Under the directions given in the said order of remand the court of appeal below should have fixed the rent, Mr. Sen Gupta argued, u/s 9(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

Mr. Mitter tried to repel the contention raised by Mr. Sen Gupta and argued that in the instant case the tenant was the Petitioner and the onus was on him to prove what the standard rent should be and this the tenant failed to do. Therefore, Mr. Mitter argued, that the application for fixation of rent was rightly dismissed. In support of his contention Mr. Mitter relied on two decisions of this Court reported in Gouri Sankar Show Vs. Anil Chandra Majumdar, , and Kamala Bala Audhya Vs. Amulya Kumar Sen, .

Before I pass on to consider the legal position, it is necessary for me to refer in brief to the nature of the oral evidence adduced in this case by the Petitioner. The court below examined the evidence in some details and came to the following conclusions:

Budhu Sheikh, the brother of Alauddin, says that Alauddin occupied a different shop and not the premises in dispute. Budhu was no doubt declared hostile by the Petitioner but he could not be shaken in cross-examination. There is no valid reason why the evidence of Budhu should not be accepted and if the evidence of Budhu be accepted the Petitioner''s case about the basic rent of the premises falls to the ground.

Now let it be seen what is the other evidence on the point. Panchu Gopal Day, P.W. 1, says that in December, 1941, Alauddin had a cycle shop in the premises in question. So also is the evidence of Bairati Prasad, P.W. 2, Hemanta Kumar Roy, P.W. 3, Atul Krishna Paul, P.W. 5, Gokul Chandra Dey, P.W. 6, and the Petitioner himself, P.W. 7. It would appear from the evidence given by the aforesaid witnesses that Alauddin''s tenancy as referred to therein was a one-room tenancy. Unquestionably the premises in dispute consist of two distinct rooms. The Inspector''s report is also to the same effect. Hemanta, P.W. 3, says, "The room in occupation of the first party is larger than that occupied by him now". Apparently the statement does not make any sense. To all seeming the witness means to say that the premises in occupation of Biswanath is larger than what was occupied by Alauddin previously. So in any case the irresistible conclusion is that the premises, as they are, were not in possession of Alauddin on 1st December, 1941. That being so, the basic rent in relation to the premises concerned cannot be fixed. The finding of the learned Rent Controller that the basic rent of the premises in dispute Was Rs. 11 per month is unacceptable.

I have examined the evidence myself and I am of opinion that the learned District Judge was not wrong in his appraisement of the evidence.

On the state of the evidence as aforesaid, I have now to examine if Section 9(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 can be applied to the facts of the present case. The circumstances to which the different Sub-section of Section 9 of the said Act are applicable were considered by Ohunder J. in a case reported in Nilkantha Bhattacharjee v. Jitendra Nath Das ILR (1953) 2 Cal. 141, and I quote below the following observation by his Lordship from the said judgment:

Section 9 of the Rent Act deals with fixation of standard rent. It has two clauses, Clause (1) which says in which cases standard rent is to be fixed. Clause (1) has got seven sub-clauses. The first sub-clause deals with the very simple case where Schedule A is to apply. Therefore in a case where it is a question of whether Schedule A will or will not apply, if it is found that it will apply then Sub-clause (a) has got to be applied. Sub-clause (b) deals with cases where there has been increase of municipal taxes during the currency of the tenancy requiring therefore an alteration of the rent by assigning the increased taxes amongst the tenants. Sub-clause (c) deals with the case of additions, alternations, and improvements entitling the landlord in certain cases to enhanced rent. Sub-clause (d) deals with the case of furnishing a house during a tenancy. * * * Then we come to the three important Sub-clauses (e), (f) and (g). Sub-clause (f) can only apply in the premises were wholly or substantially constructed after 31st December, 1949. In other words, for very new premises a special provision has been made and in such cases this sub-clause along must be used. I have found cases where Courts have proceeded to apply Sub-clause (f) although the evidence has been that the premises had been constructed prior to 1949 having been in existence perhaps in 1943 or 1944. This is entirely wrong. Leaving aside houses constructed after the 31st December, 1949, that is, absolutely new houses, almost all rent fixation cases, except those. I have already mentioned as falling within Sub-clauses (a) to (d), will fall either under Sub-clause (e) or Sub-clause (g). The distinction is this: if the premises were wholly or partially let out on 1st December, 1941, then the Court must proceed on the basis of Sub-clause (e) except where as mentioned in that sub-clause the premises were let rent free or at a nominal rent or for some consideration other than money rent or in addition to money rent. * * * *

Therefore, if it is found that the premises in whole or in part were actually let out in 1941 then evidence must be given to show what was the actual rent at "that time. If for any reason, as it has been found in the present case by the Courts below, evidence is not such as can be believed by them or is not obtainable then "notional rent" will have to be found what would be the approximate rent for the premises on 1st December, 1941, in accordance with Clause (2) of the section. Clause (2) of the section applies where the case falls u/s 9(l)(e) and the rent paid on the 1st December, 1941, has to be determined. Where because the evidence is not obtainable or because the evidence of actual rent paid is not satisfactory, such actual rent paid on the 1st December, 1941, cannot be found then the "notional rent" on the 1st December, 1941, will have to be found in accordance with Clause (2) from standard rent of like premises in December, 1941.

On the evidence adduced in this case I am unable to apply any of the provisions of Section 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, to the facts of the present case. The premises in occupation of Alauddin in 1941 appears to have been a different premises. The actual rent paid for the premises in occupation of the present Petitioner, in December. 1941, does not appear. There is some evidence of rent payable in respect of nearby premises but there is no evidence to show that those premises are like premises or similar premises, namely, whether those are covering more or less the game area as the disputed premises or have the same amenities.

The Court of Appeal below right in pointing out that there was no material as to what would have been the rent reasonably payable for the premises, if let on December, 1941. In these circumstances, I have no alternative but to affirm the judgment of the Court of Appeal below. I do this with regret because of the tragic long-drawn struggle put up by the tenant in this case to which reference has already been made. Evidence on behalf of the tenant Petitioner was thoughtlessly adduced and he pays the penalty for it.

This Rule is accordingly discharged but I make no order as to costs.