Malina Bala Dasi vs Kumudlal Choudhury

Guha, J.—The Petitioners before me are landladies in respect of certain premises of which the opposite party is the tenant. In May, 1952, the tenant opposite party filed two applications before the House Rent Controller-one u/s 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (case No. 85 of 1952) for fixation of standard rent and another u/s 7 of the said Act (case No. 83 of 1952) for refund of excess rent realised by the landladies. On June 7, 1952, both the applications were allowed ex parte by the Rent Controller; in case No. 85 under the order of the Rent Controller standard rent was fixed at Rs. 7-12-0 per month with effect from June, 1952. In the other case, that is, in the case of No. 83, the order passed by the Rent Controller on the same date was that the landladies were to refund to the tenant a sum of Rs. 120-12-0. It may be observed here that it was not specified in the order as to how this amount was arrived at. Be that as it may, on July 5, 1952, the landladies filed two applications which were described as review petitions u/s 32 of the said Act for setting aside the orders, dated June 7, 1952. We are not concerned now with the order which was passed in case No. 83 on June 7, 1952, by which the landladies were directed to make a refund to the tenant of the sum of Rs. 120-12-0. The Rent Controller held by his order, dated August 23, 1952, that the previous order passed on June 7, 1952, directing refund was wrong and it was set aside accordingly and the application for refund was rejected. Against this decision an appeal was preferred before the District Judge of Midnapore by the tenant and the learned District Judge was of the opinion that the order of the Rent Controller, dated June 7, 1952, directing refund of the sum of Rs. 120-12-0 was quite legal and accordingly the learned District Judge set aside the order of the Rent Controller, dated August 23, 1952, setting aside the order, dated June 7, 1952, directing refund of the sum of Rs. 120-12-0.

It is the propriety of this order of the learned District Judge which has been called in question before me by the landladies.

Before I enter into the merits of the case it is necessary to refer to one argument advanced before me by Mr. Ghose on behalf of the tenant opposite party. Mr. Ghose contends that in view of the provisions of Section 32(5) of the Rent Control Act, 1950, the review petition filed before the Rent Controller on July 5, 1952, was incompetent inasmuch as an appeal lay against the order passed by the Rent Controller on June 7, 1952, directing the landladies to refund to the tenant a sum of Rs. 120-12-0. It would appear that no objection in this precise form was taken in the courts below. Apart from that there is this thing to be borne in mind that what the landladies were complaining of on July 5, 1952, by their petition was in substance that there is an apparent error on the face of the record in so far as the order, dated July 5, 1952, in case No. 83 by the Rent Controller directing refund was in conflict with the order passed by the same Rent Controller on the same date in case No. 85 by which standard rent had been fixed at Rs. 7-12-0 with effect from June, 1952. That being the position it may well be argued as has been argued before me on bebalf of the landladies-Petitioners that there was a case for applying Section 151 of the CPC and if that be so, the application filed before the Rent Controller on July 5, 1962, was in substance competent. In my opinion there is no valid reason why this line of argument in favour of the competency of the application, dated July 5, 1952, for modifying the order passed on June 7, 1952, in case No. 83 should not be given effect to.

I shall now deal with the merits of the revisional application before me. It has been contended on behalf of the landladies Petitioners that the learned District Judge has taken a wrong view of the law in setting aside the order passed by the Rent Controller on August 23, 1952. The learned District Judge has observed:

Reading Section 7 with Sub-section (1) of Section 3 and Section 17, I am of opinion that the tenant is entitled to refund of the exeess amount over the standard rent of Rs. 7-12-0 paid from 1st November, 1951, and that the order of the learned Rent Controller dated 7th June, 1952, directing refund to the Appellant (namely the tenant) of the sum of Rs. 120-12-0 was quite legal.

In view of the provisions of Section 17, however, it is difficult to uphold the view taken by the learned District Judge. Mr. Ghose has also not adopted the reasoning put forward by the learned District Judge though he (Mr. Ghose) contended that the ultimate finding of the learned Judge is correct. In my opinion, in so far as the reasoning of the learned District Judge is concerned, there cannot remain any room for doubt that he is wrong. Section 17(2) lays down that such portion of rent as exceeds the standard rent determined according to the provisions of the Act of 1950 shall be irrecoverable from the month of the tenancy next after the month from which this Act came into force. In the present case, however, this Sub-section, namely, Sub-section (2) of Section 17 is hardly applicable because in the present case there is no question of the landladies praying for recovery of excess. The alleged excess over the standard rent has already been paid by the tenant. The same observation will apply in regard to Section 3(2) of the Act. Again there is no question of re-fixation of rent in the present case u/s 17. On the contrary, rent was being standardised in the present case u/s 9. Thirdly, the learned District Judge has apparently ignored the specific provisions of Section 10, Sub-section (1), Clause (i) and Sub-section (3). Under Sub-section (5) of Section 10, the Controller has in fixing the standard rent to specify in his order the time from which the rent so fixed shall become payable. In the present case the application for standardisation of rent was made by the tenant in May, 1952 and that was obviously the reason why in consonance with the provisions of Section 10, Sub-section (1), Sub-clause (i), the Rent Controller by his order on June 7, 1952, in case No. 85 fixed standard rent u/s 9 at Rs. 7-12-0 with effect from June, 1952. He did not choose to fix rent with retrospective effect from November, 1951, when the present tenancy began. It cannot be said, therefore, that the order passed by the Rent Controller on June 7, 1952, standardising the rent at Rs. 7-12-0 per month with effect from June, 1952, was erroneous. So long as that order of standardisation of rent with effect from June, 1952, stood it is difficult to understand how by another order passed on the same date, the Rent Controller could direct refund of any amount-in the present case the refund was to the extent of Rs. 120-12-0-could be directed. Obviously, therefore, the order passed by the Rent Controller on June 7, 1952, in case No. 83 directing refund was in conflict with his own order passed on the same date standardising the rent at Rs. 7-12-0 with effect from June, 1952. Mr. Ghose has, however, drawn my attention to the definition of the phrase "Standard Rent" which occurs in Section 2, Sub-section (10)(b). According to that definition standard rent in relation to any premises where the rent has been fixed u/s 9 means the rent so fixed or at which it would have been fixed if an application was made under the said section. Mr. Ghose contends that the second part of Sub-clause (b) would be operative in the present case and according to his contention in the circumstances of the present case if the application for standardisation had been made in November. 1951, the standard rent at Rs. 7-12-0 per month would come into effect from that month and that being so, there was nothing wrong in the order of the refund, so it was contended, passed by the Rent Controller on June 7, 1952, in case No. 83. In my opinion this contention cannot be upheld. The second part of Sub-clause (b) will, in my opinion, come into play in case where the first part of that sub-clause is not applicable. In the present case, however, the standard rent was fixed under the first part of Sub-clause (b) by the Rent Controller on June 7, 1952. In these circumstances, I am of opinion that there was an obvious error in the order passed by the Rent Controller on June 7, 1952, directing refund in favour of the tenant. Reference may also be made in this connection to the case of Sobha Rani Roy v. S.N. Guha Roy AIR (1949) Cal. 681, which is more or less to the point.

I am of opinion, therefore, that the decision of the learned District Judge is wrong and that of the Rent Controller, dated August 23. 1952, is correct.

In the result, therefore, this Rule is made absolute with costs, the order of the learned District Judge is set aside and that of the Rent Controller, dated August 23, 1952, is restored.