1959 (10) TMI 41 - HC - Indian Laws

Summary

Issues Involved:

1. Proper institution of the suit.
2. Requisitioning of the property and binding nature of the Cabinet Order fixing compensation.
3. Fair rent of the building.
4. Utilization of stone ballast by the Defendant.
5. Expenses on repairs and their adjustment against the amount due to the Plaintiff.

Issue-wise Detailed Analysis:

1. Proper Institution of the Suit:
The Defendant contended that the suit was not properly instituted as Mr. Raghunath Dulloo was not a duly authorized agent of the Plaintiff company. The court found this contention to be without force. The Plaintiff company had appointed Kashmir Cloth General Agency Limited as their managing agents, who in turn appointed Mr. Dulloo as a duly authorized agent to conduct civil suits on their behalf through a power of attorney. The court held that Mr. Dulloo, being the principal officer of the Plaintiff company, was competent to sign and verify the plaint under Order 29, Rule 1 of the Code of Civil Procedure. Hence, the suit was properly instituted.

2. Requisitioning of the Property and Cabinet Order Fixing Compensation:
The Defendant argued that the suit challenging the Cabinet Order fixing compensation was not maintainable under Rule 59-A of the Jammu and Kashmir Defence Rules and Section 5 Clause (i) of Ordinance No. III of 2003. The court held that Rule 59-A did not apply to the case as fixing compensation does not fall within the ambit of the rule. The court emphasized that the right to claim compensation is separate from the act of requisitioning the property and is not barred by Section 5 of the Ordinance. The court cited precedents to support the view that the jurisdiction of civil courts is not excluded unless explicitly stated by statute. Therefore, the suit for compensation was maintainable.

3. Fair Rent of the Building:
The trial court had awarded rent at the rate of Rs. 1,200 per month, but the Defendant argued this was excessive. The court found that the Plaintiff failed to provide evidence of prevalent rent rates in the locality. The court considered the price paid by the Defendant for the property, Rs. 1,50,000, and determined that a fair rent could be calculated at 6% per annum of this amount, resulting in Rs. 750 per month. Consequently, the court reduced the decretal amount proportionately.

4. Utilization of Stone Ballast by the Defendant:
The Plaintiff claimed Rs. 5,133 for stone ballast allegedly utilized by the Defendant. The trial court disallowed this claim as the Plaintiff could not establish that the stone ballast was used by the Defendant. The appellate court upheld this finding, agreeing that the Plaintiff failed to prove the utilization of the stone ballast by the Defendant.

5. Expenses on Repairs and Their Adjustment Against the Amount Due:
The Defendant claimed a set-off for expenses incurred on repairs. The court found that the Defendant did not notify the Plaintiff to execute the repairs, which might have allowed the Plaintiff to undertake the work themselves. Furthermore, the Defendant did not demonstrate that the repairs were absolutely necessary. Therefore, the court disallowed the set-off claimed by the Defendant.

Relief:
The trial court had decreed the Plaintiff's suit to the extent of Rs. 32,340 with proportionate costs. The appellate court, after reducing the rent from Rs. 1,200 to Rs. 750 per month, proportionately reduced the decretal amount to Rs. 20,212/8/-. The Defendant's appeal was allowed to this extent, and the reduced decretal amount was to be paid within two months.

Separate Judgment:
K.V. Gopala Krishnan Nair, J. concurred with the judgment.