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1951 Supreme(All) 210
IN THE HIGH COURT OF ALLAHABAD
P. L. Bhargava and Nasirullah Beg, JJ.
KESHODASS WADHUMAL ADVANI - Appellant
Versus
SYED MURTAZA ALI KHAN - Respondents
Review Appln. 256 Of 1950
Decided On : 10/29/1951
IQBAL AHMED, R.N.Shukla, U.S.Srivastava
Headnote:
CONTROL OF RENT AND EVICTION ACT - SECTION 5 (4) - INTERPRETATION - REASONABLE ANNUAL RENT - DETERMINATION - AGREED RENT - UNFAIR TRANSACTION - REVIEW OF JUDGMENT - MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD.
Fact of the Case:
The applicant, a displaced person from Sind, rented a portion of a house from the opposite party in Lucknow. He filed a suit for fixation of rent under Section 5(4) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, alleging that the agreed rent was excessive and the transaction was unfair. The trial court decreed the suit and fixed the rent at Rs. 40 per month. Both parties filed revisions against the decision of the trial court. The learned single Judge held that the suit fell within the second class of cases under Section 5(4) of the Act, where the agreed rent is alleged to be higher than the reasonable annual rent, and that the trial court had no jurisdiction to examine the correctness or propriety of the municipal assessment. He allowed the revision filed by the opposite party and dismissed the one filed by the applicant.
Finding of the Court:
The court held that the judgment under review suffered from mistakes or errors apparent on the face of the record. The learned single Judge had erred in holding that the suit fell within the second class of cases under Section 5(4) of the Act and that the trial court had no jurisdiction to examine the correctness or propriety of the municipal assessment. The court also found that the agreed rent was higher than the reasonable annual rent determined in the manner provided by Section 2(e) and (f) of the Act, that the transaction of rent was unfair, and that the finding of the trial court that the reasonable monthly rent was Rs. 40 was not vitiated on any ground.
Issues: 1. Whether the suit fell within the first or second class of cases under Section 5(4) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947? 2. Whether the trial court had jurisdiction to examine the correctness or propriety of the municipal assessment? 3. Whether the agreed rent was higher than the reasonable annual rent? 4. Whether the transaction of rent was unfair? 5. Whether the finding of the trial court that the reasonable monthly rent was Rs. 40 was vitiated on any ground?
Ratio Decidendi: 1. The court held that the suit fell within the first class of cases under Section 5(4) of the Act, where the reasonable annual rent is inadequate from the point of view of the landlord or excessive from the point of view of the tenant, as the applicant had alleged that the agreed rent was excessive and the transaction was unfair. 2. The court held that the trial court had jurisdiction to examine the correctness or propriety of the municipal assessment, as it was necessary to determine the reasonable annual rent in order to decide whether the agreed rent was higher than the reasonable annual rent. 3. The court held that the agreed rent was higher than the reasonable annual rent determined in the manner provided by Section 2(e) and (f) of the Act. 4. The court held that the transaction of rent was unfair, as the applicant had been required to pay an excessive rent and had been subjected to misrepresentation and fraud by the opposite party. 5. The court held that the finding of the trial court that the reasonable monthly rent was Rs. 40 was not vitiated on any ground.
Final Decision: The application for review was allowed, the decision of the learned single Judge in civil Revision No. 256 of 1950 was set aside and the said revision was dismissed with costs. The order of the learned Single Judge dismissing the Civil Revision No. 230 of 1950, which is not the subject-matter of review, will stand. The costs of this application for review shall be borne by the parties.
( 1 ) THIS is an application for review of a judgment, delivered by a learned single Judge of this court in two connected Civil Revisions, filed under Section 115, Civil P. C. on the ground of some mistake or error apparent on the face of the record and also on the ground that there is other sufficient cause for granting the review. On behalf of the opposity party a preliminary objection has been raised as to the maintainability of the application on the ground that there is no mistake or error apparent on the face of the record, nor is there any other sufficient cause for granting a review. This objection relates to the merits of the application and will be dealt along with the merits of the case.
( 2 ) THE facts and circumstances leading to the filing of the aforesaid revisions were these: The applicant, Sri Keshodass Wadhumal Advani, who is a displaced person from Sind in West pakistan and is a registered refugee in Lucknow, needed accommodation for his residence. On 14th February 1948, he rented a portion of the house, described as Crown Gate, No. 2393, on the jagat Narain Road, Lucknow, belonging to the opposite party, Syed Murtaza Ali Khan, on BS. 170 per mensem and paid Rs. 900 in advance. The applicant continued to pay the agreed rent for nearly 15 months, after which disputes arose between the parties.
( 3 ) IT appears that the applioant subsequently realised that the agreed rent was excessive and the transaction of rent was unfair. Accordingly, on 13th August 1949, he instituted a suit in the court of Munsif, North Lucknow, for fixation of rent under Sub-section (4) of Section 5, U. P. (Temporary) Control of Rent and Eviction Act, III [3] of 1947. In the suit filed by the applicant it was alleged in the plaint that the opposite-party had represented to him that the monthly reasonable rent of the accommodation let out to him was Rs. 170 per mensem; that according to the municipal assessment the reasonable annual rent of the accommodation was Rs. 600 and on that basis the monthly rent worked out to Rs. 50; that, as the applicant was not given possession over one of the eight rooms let out to him, the reasonable rent of the accommodation actually in his occupation worked out to Rs. 43-8-0 per mensem: and that as the opposite party had failed to carry out the necessary repairs according to his promise the rent of the accommodation be fixed at Rs. 40 per mensem. In the oral pleadings recorded on the date of issues, it was stated on behalf of the applicant:
"that the first assessment of the house in suit was made in 1940, so far as is in his knowledge, and the rate of rent fixed was Rs. 300 per annum but on an appeal by the defendant it was reduced to Rs. 180 per annum. "
( 4 ) THE allegations of the applicant in the plaint were denied by the opposite-party, who contended that the house was constructed in 1947 and completed in April 1947: that the applicant instead of occupying the entire accommodation himself subdivided it into four portions and sublet three portions on Rs. 50 each and the Municipal Board of Lucknow, had for the first time, assessed the newly constructed building in four tenements on a total rent of RS. 170 per mensem; that the transaction of rent was not unfair and the agreed rent was not higher than the reasonable rent; and that the applicant was not entitled to any abatement thereof. On these pleadings the learned Munsif framed two issues :
1. Was the house in suit constructed in 1947 and completed in April 1947 as alleged by the
defendant ?2. Whether the transaction was unfair and the rent fixed excessive as alleged in para. 7 of the plaint ? If so, its effect ?
( 5 ) THE learned Munsif found that the house was not constructed and completed in 1947 as alleged by the opposite party; that the municipal assessment was incorrect and the transaction of rent was unfair; and that the agreed rent was excessive as alleged by the applicant. Accordingly, he decreed the suit and fixed the rent at R
