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TMI Blog1956 (2) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... the Civil Station at first In 1937 for exhibiting cinematograph shows. The Defendants purchased the building on 22-1-1943 and the Plaintiff continued to be in occupation of the properly on terms embodied a lease deed dated 12-4-1943 executed au their favour. At the expiration of the period prescribed therein the lease was renewed for a further tetan of three years by means of a document cited 29. 3,-1940. On 2-7-1946 the Plaintiff applied to the House Rent Controller, Civil Station, for determination of fair rent. The application was dismissed, remanded in appeal, subsequently resulted In fair rent being fixed at ₹ 950/- and increase of this by ₹ 450/- being allowed from 1-10-1946. The final order to this effect was passed on 15-3-1947. On the strength of this the Plaintiff sent notices for adjustment of the amounts paid In excess of the fair rent towards future rent or return of the same. Defendants insisted on the stipulated rent of ₹ 2,000/- being paid and instituted' proceedings for eviction. Finally the Plaintiff filed the suit from which this appeal arises for recovery of Rs. ,41,090/- as representing the total overpayment after deduct-ting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification dated 22-6-1943 it was declared that House means (in the area specified in the schedule appended to this order) any building or -part of a building (let separately or to be Jet separately) suitable for any purpose residential or non-residential (and elsewhere a building or part of a building suitable for occupation as a residence audio includes.... In the next, order dated 19-9-1945 there is nothing new and of importance to be mentioned. The last am to which attention was drawn is the order dated 26-9-1946 which came to force on 1-10-1946. In this the definition of House given in the previous order is repeated! but the words in clause 7(c) are different from those of clause 6(c)' of the earlier order. Sub-douse (c)! reads thus: When the Controller has determined fee lair rent of a house (c) any sum paid in excess of the fair rent whether before or after the commencement of this law in respect of the use of the building after the commencement of this law shall be refunded to the person by whom it was paid or at the option of that, person otherwise adjusted. The House Rent Control Order was passed in exercise of powers under the Defence of India Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-residential houses as to residential houses, the word, residence would or should have been re placed by the word House in Cl. 6 (c). The con finances of the same word after the notification cannot be Ignored or treated as inconsequential for the purpose of refund. Even so, the contention on behalf of the Appellant is that the word residence in 01. 6 hea to be liberally construed and that the benefit of refund should not be denied to tenants who are not dwellers/ The Plaintiff admittedly was not a lessee who lived in the premises but was in occupation of these for the purpose of exhibiting cinema shows as a business. Whether this is tantamount to or synonymous with residence was a point on which there is disagreement in the Division Bench. 6. The word Reside , Resident or Residence is found in several enactments such as the Income Tax Act, Divorce Act, Representation of the People Act, Code of Civil Procedure Code. This Court in '50 Mys 147 (A)' which pertained to an election under the Municipal Act held that a person who ordinarily lived at a particular place and was obliged to leave it under pressure of an order of Government did not cease to be a reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporated company which can neither live nor sleep. It must however be assumed that the company has a residence, with reference to a provision in the Representation of the People Act. Lord Coleridge C.J., expressed in - 'Barlow v. Smith' ILR (1892) 57 (C), The Act distinguishes between occupation and residence and requires that the person who occupies must reside in the borough The party may occupy and not 'reside' there Residence Under the enactment is different from occupation and means where the man lives and where he has his home. It has always been held that a man resides where he lives and has his home. 7. I think, 'residence' in clause 6(c) has to be construed in the manner expressed by these swords. 8. If Residence was meant to include used or occupation of the holding, It may have been so defined either in the Order of 1941 itself or in the Notification of 1943 as was done in regard to the word House . The absence of this and replacing It by the word use in the order of 1946 are significant and imply recognition of the necessary change of words to permit refund of amounts paid towards rent of non-residential buildings. The order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground of mistake and unjust enrichment. The ground is a new One, not raised in pleadings or in issues but Is alleged to be one apparent and vital to require consideration without need for any evidence. In support of this the decision in - 'Sbiba Prasad Singh v. Srish Chandra Naridl' AIR 1949 PC 297 (AIR v. 36) (E), was strongly relied upon. The resemblance between that case and this is that. the dispute is between lesson and lessee, that refund of the over-payment Is claimed by the lessee. Here, the terms of the contract are clear and the obligation, of the lessee is not in controversy. What is urged is a statutory right the existence of this is contested. In the 'Privy Council case', differences between the parties related to the construction of the terms embodied in the written agreement and the question whether there was an over-payment at all had to be determined on the interpretation of the conditions. It was found that moro was) paid than what was due under the agreement and the recipient was not entitled to retain it Or the facts of the present case the Appellant cannot presumably plead that payments were by mistake unless it be a mistake to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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