Chowringhee, Properties Ltd. vs Bengal Stores Ltd.

Das Gupta, J.—On the applications of both the landlord and the tenant, the rent of premises consisting of a shop room in 8A, Chowringhee Place, Calcutta, has been fixed at Rs. 1,2651-per month by an order of the Chief Judge, Court of Small Causes, Calcutta, on the 10th June, 1952. The learned Judge also ordered that the rent thus fixed would be payable from the month of August, 1949. The applications were filed in 1949, and on the 5th January, 1950, the Rent Controller passed an order fixing the rent at Rs. 1,820/- with effect from the 1st July, 1949. On the 2nd June, 1950, the Fifth Judge, Small Causes Court, Calcutta, who heard the appeals filed by both the landlord and the tenant, fixed the rent at Rs. 1,820/- with effect from the 1st July, 1949, and at Rs. 1,495/- with effect from May, 1950. These orders were ultimately set aside and the order mentioned earlier was passed on the 10th June, 1952. The tenant, however paid to the landlord the entire amount that would be due for July, 1949 to April 1950, at the rate of Rs. 1,820/- per month on the basis that the order passed by the Rent Controller was binding and valid in law; and then the entire amount, that would be due from May, 1950 to June, 1951, on the basis that the rent had been validly fixed at Rs. 1,495/-. When thereafter the rent for these periods, in consequence of the order of the learned Chief Judge of the 10th June, 1952, was found to be payable at Rs. 1,265/- per month, the tenant applied to the Rent Controller for refund of Rs. 8,215/-. The application has been allowed and the appeal therefrom has been dismissed. The present Rule was obtained against the order dismissing the appeal.

It is contended before us on behalf of the landlord that the Court which heard the appeal had no jurisdiction to do so. This is based on the argument that the appeal was u/s 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1948, which will be referred to hereafter as the 1948 Act. If the appeal lay under the 1948 Act, the position in law would no doubt be that it could be heard only by the Chief Judge or the other persons appointed by the local Government under sub-section (2) of section 32 of that Act to hear appeals. Admittedly Sri R.N. Datta, who heard the appeal had not been so appointed. So it is argued that he had no jurisdiction to hear appeals.

I do not think, however, that the appeal was under the 1948 Act. If the appeal had been directed against any order passed on an application made when the 1948 Act was in force, the provisions of section 32 of the 1948 Act would apply. The application was however filed long after the 1948 Act had ceased to be in force. The application was in substance for relief against the effect of the mistaken decisions of the Rent Controller and the Court which had first heard the appeal from his decision. In dealing with this application, the learned Rent Controller was functioning as a Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, hereinafter referred to as the 1950 Act. Under the first sub-section of section 32 of the Act, an appeal lies against any final order passed by the Rent Controller. The appeal that was filed against the Rent Controller''s order of refund of Rs. 8,215/- said to be paid in excess by the tenant in consequence of orders passed by the Court which had since been varied must, in this position of the law, be considered to be an appeal preferred u/s 32(1) of the 1950 Act. Consequently, the learned Chief Judge acted in accordance with the law as enacted in clause (a) of section 32(1) in transferring it to the Court presided over by Sri R.N. Datta and that Court had jurisdiction to hear the appeal.

The next contention on behalf of the petitioner is that the Rent Controller''s power to order refund is limited to the provisions of section 7 of the 1950 Act, so that refund could be ordered only on an application made within the period of six months from the dates of payment. Section 7 is in these words :

7(1) Where any sum has been paid or deposited on or after the date of the commencement of this Act in respect of the occupation of any premises-

(a) on account of rent, being a sum which is by reason of the provisions of this Act irrecoverable, or

(b) as premium, selami, fine or other like imposition in advance, the claiming or the receiving of which is prohibited under this Act, or

(c) on account of price or hire of any furniture in such premises without the permit of the Controller u/s 6,

the Controller may, on application made to him in this behalf at any time within a period of six months from the date of such payment or deposit by the tenant by whom such payment or deposit was made, order the landlord by whom such payment was received or to whose credit such deposit was made, to refund such sum to such tenant or at the option of such tenant, order the adjustment of any sum, so paid or deposited in any other manner.

(2) An order of refund passed by the Controller under sub-section (i) shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the premises in relation to which the sum ordered to be refunded was paid or deposited, as if such order of refund were a decree of that Court.

The question is whether it was the intention of the Legislature to provide in this section for refund of any amount paid either on the basis of an order of the Court or on the basis of a contract. Refund of any amount paid under order of the Court on the ground that the order has been varied is based on the well-known principle that it is not only the power but the duty of the Court to relieve any party from the consequence of the Court''s own error. Section 144 of the CPC provides for the application of this principle in certain cases but it has consistently been held that even out-side the cases that come within 144 of the Civil Procedure Code, the Court will order restitution to relieve parties against the consequences of the Court''s own erroneous orders. If the Legislature intends to take away the Court''s power, and put an end to the Court''s duty, to relieve a party against the consequence of the Court''s own error except as regards payments made within six months of the application, it is reasonable to expect that it will do so in clear and unmistakable terms; and unless the Legislature speaks in clear and unambiguous words that a court or tribunal will not have such power and such duty, we are bound to hold that the power and duty continued.

If we approach section 7 of the 1950 Act with these principles in mind, the conclusion cannot be escaped that these provisions of section 7 are intended only to provide for refund of the amount paid under a contract independent of any order of the Court.

Our attention was drawn to the decision in Nirmal Chandra Dutta v. Gopal Chandra Dey (1) (56 C.W.N. 291) where the Court set aside an order of adjustment in respect of payments made prior to the 1st April, 1950. In that case, their Lordships (Lahiri and P.N. Mookerjee, JJ.) had not, however, to consider the question of restitution on the ground of any error of the Court. They had to consider and did consider the scope of section 7 of the 1950 Act and held that as the bar of irrecoverability attaches to excess over the standard rent only from the month of the tenancy next after the month in which the Act came into force, no order of adjustment or refund could be made in a case where rent was being fixed by the Court under the provisions of the 1950 Act, in respect of payments made before the 1st April. This decision is, in my judgment, no authority for the proposition that Section 7 of the 1950 Act takes away the power of the Court to order restitution on the ground that the order of the Court on which payment has been based, has been reversed or varied, except for payment made within six months of the application for restitution.

My conclusion therefore is that the Rent Controller''s power to order refund of amounts, paid on the basis of orders of the Rent Controller or of the Court which had heard the appeal which had since been varied, is in no way affected by the provisions of section 7 of the 1950 Act.

It was next contended that the payments were not made under the process of the Court but voluntarily and so restitution should not be granted. There can be no doubt that the payments were made by the tenant in consequence of the orders passed by the learned Rent Controller and the Court which heard the appeal. The fact that payment was not made as the result of execution proceedings, does not make the payment voluntary. It has been held in a number of cases, namely, Gopal Paroi v. Swarna Bewa, (2) 34 C.W.N. 707; Narain Singh v. Bachan Singh, (3) ILR 8 Lah. 41; Surjya Dal v. Jamna Dal, (4) ILR 42 All. 568, that when a person gives up possession in consequence of a decree which is afterwards varied or reversed, he is entitled to restitution u/s 144 of the Civil Procedure Code. The same principle should clearly apply to a case of payment made without execution proceedings in consequence of a decree which is later varied or reversed.

It was next contended that as in the application for fixation of rent itself there was a prayer for refund and no refund was allowed, the prayer for refund must be held to have been rejected and so the present prayer for refund is barred by the principle of res judicata. Clearly, however, the prayer for refund made in the application itself must be for refund of amounts paid under the contract; it could not be prayer for refund of amounts paid in consequence of an order that has been varied. There is therefore no scope for the application of the principle of res judicata here.

Lastly, it was argued that the Court should not order refund because if any such order is passed the tenant will find difficulty in executing the same. It does not appear to me to be necessary to consider at the present stage what, if any, would be the difficulty of the tenant in executing the order of refund, but I am inclined to believe that it will be possible for the Court to find some way of enforcing its order of refund. The contention that as there may be difficulty in the tenant executing the order of refund, no order of refund should be made, should, in my opinion, be rejected. As all the grounds taken have failed, I would discharge the Rule with costs.

Guha, J.

I agree.