JUDGMENT
1. These five connected matters (R.F.A. 148-D of 1960 and Civil Revisions 163-D to 165-D and 169-D of 1965) will be disposed of by one main judgment as they relate to the same controversy. This litigation arises out of the usual landlord and tenant dispute and had a somewhat chequered career. Facts relevant for our purpose may now broadly be stated.
(2) Sardar Begum, appellant in the Regular First Appeal and respondent in the four revisions, is the owner of the premises in question. It is common case of the parties that the building itself was constructed in the year 1945-46 on a lease-hold plto measuring 378.67 square yards on Rohtak Road, Delhi. It appears that during the unfortunate partition of the country in 1947, when India became free from the foreign yoke, Jagdish Chand Bhandari happened to occupy the premises in question. As observed by Shri K.S. Sidhu, learned Senior Subordinate Judge, the circumstances in which this was done are shrouded in mystery. Sardar Begum was apparently in Calcutta and the Custodian of Evacuee Property, New Delhi, seems to have taken charge of this property. On 28-10-1955, this property was restored to Sardar Begum by the Custodian Department.
On 17-4-1956, she presented an application under the Delhi and Ajmer Rent Control Act xxxviii of 1952 for fixation of standard rent. According to her allegations, the Assistant Rent Controller had fixed Rs. 118/- per month as rent for the first and second floors inclusive of house rent and land rent, but she prayed that Rs.160/- per mensem should be fixed as standard rent. This proceeding will be described hereafter as standard rent proceeding. On 26-7-1957, Sardar Begum filed a suit for the eviction of Shri Jagdish Chand Bhandari (respondent in the Regular First Appeal and petitioner in the four revisions) on the ground that he had caused substantial damage to the property by demolition of the wall between two residential rooms on the ground floor and also that he had been using the premises for business purposes which is a purpose toher than the one for which the same had been leased out. This proceeding would hereafter be called eviction proceeding. On 3-11-1958, Sardar Begum instituted a suit for the recovery of Rs.5,750/- on account of rent at the rate of Rs.160/- per month with effect from 29-10-1955 up to 31-10-1958. This suit will hereafter be called as rent suit.
(3) On 29-7-1960, Shri S.K. Kalha, Subordinate Judge 1st Class, Delhi, disposing of the standard rent and eviction proceedings by one order held the standard rent proceedings to be barred by time and on that basis he decreed the rent suit for a sum of Rs.1,440/- at the rate of Rs.40/- per month which he found to be the agreed rate. R.F.A. 148-D of 1960 is an appeal by Sardar Begum from this rent decree.
(4) The order in the standard rent proceeding was upset on appeal and on 28-11-1960 the case was remanded to the Court of first instance for a fresh decision. In the eviction proceeding the defendant's defense had been struck off on 16-7-1960, but on appeal this order is also stated to have been upset by the learned Senior Subordinate Judge and the case remanded to the Court below for trial on the merits.
(5) On 9-4-1964, Shri P.L. Singhla, Subordinate Judge, 1st Class in the eviction proceeding directed the defendant to stop using the premises for business purposes, within one month from that date failing which the said order was to be treated as an order of eviction and the defendant was thereupon to be liable for eviction within three months. The same learned subordinate Judge tried the standard rent proceeding and by the same order he also fixed the standard rent at Rs.147.50 per month with effect from 10-10-1955. This amount was fixed on the basis of Rs.118/- having been fixed as fair rent for the first and second floor, and by adding 25 per cent as an increase thereon in terms of paragraph 3(d) of Iind Schedule of the Rent Act of 1952, the figure of rupees 147.50 per month was arrived at. Jagdish Chand Bhandari tenant and Sardar Begum landlady buth went up on appeal to the Court of the Senior Subordinate Judge against the fixation of Rs.147.50, the tenant claiming reduction and the landlady enhancement of the amount. The appeal Court in a detailed and well-reasonable order disbelieved the tenant's version that the premises had been let out to him at Rs.40/- per month. Assuming this rate to be the agreed rate, the Court below expressed the opinion that this rate was ridiculously low. On this view, section 8(1)(b) of the Rent Act of 1952 was applied and under section 8(4) of the said Act, the cost of construction was determined on the evidence led in the case. Calculating at 7-1/2 per cent of the cost of construction, the standard rent came to Rs.175/- per month, but as the landlady had only claimed Rs.160/- per month, the standard rent was fixed at this figure.
(6) In the eviction case also, two appeals were preferred, one by the tenant and the toher by the landlady, the former claiming dismissal of the eviction application and the latter claiming ejectment on all the grounds urged by her in her application. The learned Senior Subordinate Judge Shri K.S. Sidhu found the order of the first Court to be defective in more particulars than one. The trial Court had given no finding whether the premises had been let for residential purposes alone as alleged by the landlady and in the second place the decree made by the Court was to qutoe the learned Senior Subordinate Judge, "nto definitive and certain in terms and leaves very important questions to be determined by the executing Court". The case was accordingly remanded for a fresh decision. On behalf of the landlady, it was also argued before the learned Senior Subordinate Judge that the tenant had demolished the kitchen adjoining the rear verandah and thereby caused antoher substantial damage to the building. This plea was held nto to have been specifically pleaded in the plaint though according to the lower Appellate Court, a reference to it had been made by the tenant in his written statement. The trial Court was accordingly directed to secure a clarification on this point from the landlady either by means of a statement before issues or by affording an opportunity to amend the plaint. The four revisions mentioned in the beginning of this judgment, have been preferred by the tenant in this Court from the orders of fixation of standard rent and of remand in the eviction proceedings.
(7) Shri D.R. Malhtora learned counsel for the appellant Sardar Begum in the Regular First Appeal has at the outset submitted that the impugned order in that appeal having been based on the finding that the application for fixation of standard rent was barred by time and that the agreed rent was Rs.40/- per month, and now that the standard rent had been fixed at Rs.160/- per month in the proceedings which are before us on revision, it would be more in the fitness of things that the revisions for fixation of standard rent be heard first. Agreeing with this submission, we called upon the tenant's learned counsel Shri D.D. Kapur to address us on his revision first.
(8) Shri D.D. Kapur's first challenge - and this is the main assault against the impugned order fixing the standard rent at Rs.160/- per month - is that the application for fixing standard rent was incompetent. This submission is in our opinion, untenable. Nto only was there no clear plea to this effect in the pleadings in the Court of first instance, but this point also does nto seem to have been argued in the Court below. On revision even under S. 35 of the Delhi and Ajmer Rent Control Act of 1952 - However wide its scope may be - such a contention for the first time is inadmissible, for one thing, had a plea to this effect been raised in the Court of first instance, the toher party, could easily have sought suitable amendments in accordance with law.
(9) It is next submitted that the valuation regarding the cost of construction is based merely on guess work and there is no legal evidence in support of it. Here again we do nto agree. There is abundant legal evidence on the record on which the conclusion of the Court below can be founded and on revision we are nto expected to re-evaluate the evidence for reconsidering the finding of fact on the merits. In estimating the cost of construction of any building, in the absence of detailed accounts, an element of inference is inevitable. To call it a mere guess work and, therefore, inadmissible in law would be inept, for to some extent, such an element is indispensable in evaluating property in the peculiar circumstances before us. The contention that the Court below should have upheld the agreed rent of Rs.40/- is misconceived and unacceptable. On the findings of fact arrived at by the Court below, the story of the agreed rent being Rs.40/- per month has been repelled as unbelievable. No illegality in the decision of the Court below has been pointed out with the result that the order fixing the standard rent is upheld.
(10) Once the standard rent is determined at Rs.160/- per month, it seems to us that the regular first appeal must prima facie prevail. Shri D.D. Kapur, learned Counsel for the tenant, made a faint attempt to urge that an independent finding should be given in the appeal on the question of standard rent without taking ntoice of the conclusion in the standard rent proceeding, but the attempt was nto persisted in and soon given up. Ntohing else having been urged against the appeal, it must succeed and the claim of Rs.5,750/- decreed with costs and we order accordingly.
(11) This brings us to the revisions in the eviction proceedings. Shri D.D. Kapur has strongly urged that the direction regarding amendment of pleadings is contrary to law and indeed according to him, there is no justification for remanding the case to the trial Court for redecision. He has sought support for his submission from Rampat Sahu v. Bhajju Sahu Air 1936 Pat 160, where upholding the inherent powers of remand in appellate Courts in addition to the specific powers given by the Code of Civil Procedure, it was observed that the Courts should be slow to exercise that jurisdiction and should only use it in appropriate cases because the power of remand is nto intended to allow an unsuccessful plaintiff who has failed to prove his case, antoher attempt to call witnesses who might have been called on the first occasion and from Nanjan v. Selai , in which it was laid down that a Court should nto direct suo mtou amendment of the pleadings like the filing of additional written statements by the respondents in an appeal, however necessary they may be in the interests of justice.
The propositions of law laid down in these decisions are unexceptionable, but it is indisputable that each case has to be considered on its own peculiar facts and circumstances for determining whether or nto amendment is to be allowed. On the facts and circumstances of this case, in our opinion, the remand for redecision was nto only proper but unavoidable. The order of the Court of first instance was undoubtedly infirm and if the Court of first appeal in its discretion desired the trial Court to deal with the case in accordance with law devtoing its attention to all the questions which arose for adjudication, no fault can be found with this direction, certainly none to justify interference on revision. So far as the direction regarding amendment is concerned, again we are unable to find any ground for interference on revision in the present case.
Broadly speaking, power of amendment to facilitate decision of the real point arising in the controversy is conceded to the civil Courts by statute and this power is generally, construed so as to advance the cause of justice in order to avoid multiplicity of proceedings. In the absence of statutory provision, considerations of equity, justice and good conscience weigh. In the case in hand, however, Rule 4 of the Delhi and Ajmer Rent Control Rules 1953 expressly provides that in the absence of any specific provision in the Act or the Rules, the Court shall, as far as possible, be governed by the provisions of the Civil Procedure Code. If that be so, then obviously, in order to determine the real controversy between the parties, amendment may well be allowed. Before us, ntohing has been said to persuade us to hold that the discretion by the Court below contravenes either any provision of law or is toherwise unjust and inequitable. Of course, when the landlady seeks amendment and there is any valid objection open to the respondent under the law, we have no doubt the Court below would deal with the same in accordance with law. We do nto propose to bind the trial Court in this respect by expressing any opinion in advance. The revisions in the eviction proceedings thus also fail and are hereby dismissed with costs. Parties are directed to appear in the trial Court on 28-11-1966 when a short date would be given for further proceedings in accordance with law and in the light of the observations made above.
2. Petition dismissed.