T.H.S. Rahmath Fathima vs T.K. Kader Mohideen

S.S. Subramani, J.—Both these Revisions are by, the landlady in proceedings for fixation of fair rent. C.R.P. No. 4673 of 1987 arises from

R.C.O.P. No. 2050 of 1984 before the Small Causes Court of Madras. The subject matter of the proceedings is premises No. 39 (Old No. 70),

Mannadi Street, Madras-1. Against the order of fixation of fair rent, the landlady filed R.C.A. No. 116 of 1987, and the tenants filed R.C.A. 819

of 1986. Against the decision in R.C.O.P. No. 2059 of 1984, the tenant filed R.C.A. No. 860 of 1986 and the landlady filed R.C.A. No. 117 of

1987.

The agreed rent in C.R.P. No. 4673 of 1987 is Rs. 350/- and in the other case it is Rs. 300/-. They are adjoining rooms having more of less the

same plinth area and part of the same building.

In both these cases, the petitioners wanted the fair rent to be fixed at Rs. 1085/- According to her, the building is situated in a busy commercial

locality of George Town, namely, Mannadi and Broadway, in the city of Madras, which is a place with heavy traffic, and due to situation and

location of the premises, it will fetch a very high price. According to her, the land value on the date of the application will be not less than Rs. 3

lakhs per ground. In both the cases, the tenant is occupying an area of 770 sq.ft.

In both the petitions, both the tenants are different. They have taken more or less the same contention. They wanted the fair rent to be fixed at

Rs. 399/-.

The Rent Controller, after taking evidence, held that the market value of the land will be Rs. 2 lakhs per ground. For the purpose of fixing the

market value, the landlady relied on Ex.P5, a sale deed in the same locality. The same was not acted upon by the Rent Controller for two reasons.

(1) It is away from the demised premises, and (2) The document was not proved. The tenants'' case that the market value will be only Rs.

80,000/- per ground, was also not accepted by the Rent Controller.

Regarding the cost of construction, the Rent Controller found that as per the P.W.D. rate, it will be Rs. 53.95p. For the said purpose, he relied

on the oral evidence of R.W. 1. He also gave 25p. increase, taking into consideration the nature of the building. The Rent Controller also found

that the age of the building is not 9 years as claimed by the landlady, but was 15 years as contended by the tenant. After calculating the value for

the above purpose, the Rent Controller fixed the fair rent at Rs. 692/-. Both the landlord and the tenants were aggrieved by the order and they

took the matter is appeal to the Appellate Authority.

The Appellate Authority found that the cost of construction is Rs. 50/- per sq.ft. The market value of the land was reduced from Rs. 2 lakhs to

Rs. 1,50,000/-. The 25% excess granted by the Rent Controller was also set aside. Thereafter, the Appellate Authority reduced the fair rent to Rs.

508/-. The reduction made by the Appellate Authority is the subject matter in this Revision.

The tenants have not filed any Revision.

The question that has to be considered is whether the fair rent fixed by the Appellate Authority is correct, or whether it is liable to be interfered

with.

The first point urged by the learned counsel for the landlady is that both the Authorities below have not considered Ex.P-5, the sale deed

executed between two strangers, in a nearby locality. According to him, Ex.P-5 represents the market value in that area. Even though the landlady

has stated that during the relevant lime the market value per ground in that area was Rs. 11 lakhs, the transaction under Ex.P-5 shows that the

property has been sold at Rs. 8 lakhs per ground. This, according to the learned counsel for the petitioner/landlady, is a material piece of evidence,

which the Authorities below have failed to take into consideration.

According to the learned counsel, Ex.P-5, even though a certified copy, is a copy of public document, and hence no further evidence is

required to prove the same. He also submits that in Tamil Nadu, a document are registered only after the Sub Registrar is satisfied about the price

in the locality. According to him under the Stamp Act, notifications of the Government fixing the land value in the locality are issued, and the Sub

Registrar is forbidden from registering any document if it is less that the same.

According to me both these contention of the learned counsel for the petitioner are no correct.

A public document is defined under S. 74 of the Evidence Act. As per S. 74 of the said Act, only the following documents are public

documents. They are:-

(1) Documents forming the acts, or recording the acts (i) of the sovereign authority, (ii) or official bodies and tribunals, and (iii) of public officers,

legislative, judicial and an executive, of any part of India or of the Commonwealth, or of a foreign country.

(2) Public records kept in any State of private documents.

It cannot be disputed that a sale decree executed between private parties will not come under any of the provisions of the said Section S. 75 of the

Evidence Act says that all document which do not come under the category as defined under S. 74 are private documents . In the Commentary of

Evidence Act, by Sarkar, 14th Edition, 1993, at page 1086, the learned author based on English decisions, has stated that a deed of sale is not

public document. Since, it a private document, a mere production and marking of the same is not sufficient to prove its contents.

Even though a document was marked without any objection, we have to consider whether the parties to the said (sic) at competent to prove

the same. The parties and utter strangers to Ex.P-5. Hence they are not competent to prove the same. Then we have got only the production and

marking of the document. A mere marking of a document with consent will not amount to proof of its contents it is so held in the decision reported

in Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya and Others, . In that case, at page 1868, their Lordships have held as

follows:-

The plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There

is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of document.

The same is the case in the decision reported in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, . In that case, their lordships held thus:-

Undoubtedly. mere proof of the hand writing of a document would not tantamount to proof of all the contents of the facts stated in the document, if

the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the

truth of the facts or contents of the documents. The truth or otherwise of the facts or contents so state would have to be proved by Admissible

evidence, i.e., by the evidence of those persons who can vouch safe for the truth of the facts in issue.

(Emphasis supplied)

Our High Court has also taken the same view in 1974 -II-M.L.J. 260 = 87 L.W.777 (Karuppanna Thevar (died) and others v. Rajagopala

Thevar and others). In that case, a Bench of this Court has held:

Whether it is the primary evidence of the production of the original document itself or the secondary evidence of a certified copy, the document will

have to be proved with reference to the person who executed the document, attestation and the hand-writing of the person by whom it is

purported to have been executed under Ss. 67, 68and 69. The consent of the party for marking of document only relieves the plaintiff of his

obligation to prove that the original is a public document within the meaning of S. 74. The consent does not dispense with either the proof of

contents of the document or the truth or otherwise of the contents.

After this decision of this Court, there was a difference of opinion as to whether the marking on consent will amount to proof of the contents of

the document. The dispute was on the basis of a subsequent decision of this Court reported in Manicka Mudaliar Vs. Shanmugasundara Mudaliar,

and also in view of the observations of the Supreme Court in the decisions reported in P.C. Purushothama Reddiar Vs. S. Perumal, and the

dispute was set at rest by the decision of this Court reported in 1986-I-M.L.J. 288=99 L.W. 561 A.V.S. Perumal v. Vadivelu Asari. Their

Lordships discussed the entire law on the point and held that the consent given by a party for marking a document docs not dispense with either

the proof of contents of the document or the truth or otherwise of the contents. Their Lordships held that permitting a document to be marked by

consent only means that the party consenting is willing to waive his right to have the document in question proved. It does not mean the acceptance

of the correctness of every statement, made therein. In view of the above categorical declaration of law by this Court, it cannot be doubted that the

Authorities below have acted correctly in not taking into consideration Ex.P-5. The petitioner should have examined some person who is

connected with Ex.P-5 to prove its contents.

The second contention of the revision petitioner is that the value is fixed by the Government for a particular locality and the document cannot

be registered if the transaction is less than the value fixed by the Government. For that reason, he wanted Ex.P-5 to be accepted as a piece of

evidence. The said argument cannot be accepted. The Government fixes the value only for the purpose of Stamp Duty, i.e., for the purpose of its

revenue. The value is fixed for the locality and not for a particular survey number. The market value for a particular survey number is the result of a

bargain between the parties. That is a matter to be proved by evidence. Judicial notice cannot be taken regarding the value of the property on the

basis of a value fixed by the Government.

But the failure of the petitioner to prove Ex.P-5 will not put an end to this litigation. The authorities below have held that the tenant''s case that

the market value of the land is only Rs. 80,000/- is not correct. The Rent Controller has arbitrarily fixed it at Rs. 3 lakhs, and this has been reduced

by the Appellate Authority to Rs. 1,50,000/-, which again is without any basis. Since the finding regarding the market value of the land is without

any legal evidence, I am constrained to set aside the orders of the Authorities below.

That apart, regarding the cost of construction also, there is no legal evidence. The Rent Controller has relied on the oral evidence of R.W. 1.

Under S. 4(5) of the Rent Control Act, P.W.D. rates are only guidelines and they need not be the basis for fixing the fair rent. The actual cost of

construction can be taken into consideration for fixing the fair rent.

For the said purpose, the learned counsel for the petitioner relied on an unreported decision of this Court in C.R.P. Nos. 708, 709 and 2698

to 2701 of 1985 (Raitan Private Ltd. v. L. Krishnamoorthy and another, order dated 24-10-1986). In that case, it was an application for fixation

of fair rent in the year 1982. This Court held that the cost of construction per sq.ft. is only Rs. 100/-. The P.W.D. rate in that case was also taken

to be Rs. 53/- per sq.ft. only as in this case. The Court can take judicial notice of the fact that after 1970, the cost of land and also the cost of

construction have only increased. Under any circumstance, it cannot be Rs. 53/- per sq.ft. which has not been accepted even by the Appellate

Authority. The decision in C.R.P. Nos. 703, etc. (cited supra) can he taken as a precedent for fixing the cost of construction.

The Appellate Authority has set aside the finding of the Rent Controller regarding the excess of 25% granted by the Rent Controller, taking

into consideration the nature of the building. I do not find any illegality in the finding since the petitioner has no case that the building is such that it

requires any extra cost. She has not even pleaded regarding the relief of 25% excess.

The age of the building and the plinth area are all not in dispute at present. Fixation of fair rent has to be based mainly on the cost of

construction and the market value of the land. Since that finding is not based on legal evidence. I have to set aside the orders of the authority below

and remit the case to the Rent Controller to decide the case afresh. In the result, the Civil Revision Petitioner are allowed. The orders of the

authorities below are set aside, and the matter is remitted back the Rent Controller for taking a decision a freed Both the parties are at liberty to

adduce evidence afresh, and reasonable opportunity shall afforded to them to do so. The parties will applied before the Rent Controller on 31-10-

1987. There will be no order as to costs.

S.S. Subramani, J.—After the order was pronounced, the learned counsel for the petitioner wanted that some time limit may be fixed for the

disposal of the matter on remand.

This being an old matter, I am sure, to Rent Controller will dispose of the same at the earliest, at any rate, within three months from the date of

receipt a copy of this order.