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TMI Blog2014 (4) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... rent in 1995 in respect of the suit premises would have been Rs.24 per sq. ft per month. In accordance with the mandate of Clause 36 of the Letters Patent, the majority view of the Judges who have heard the relevant point in the appeal is recorded as Rs.24 per sq. ft per month being the rate of rent in the suit premises in the year 1995. The reference is disposed of. - Hon'ble Judges Sanjib Banerjee, J. For the Appellant : Sabyasachi Chowdhury, Avinash Kankani and Syed E. Huda For the Respondents : Partha Sarathi Bose, Sr. Adv. and Subrato Dutt JUDGMENT SANJIB BANERJEE, J. 1. The reference under Clause 36 of the Letters Patent has been made upon a difference of opinion in a Division Bench as to the actual rent in 1995 in respect of the suit premises . The material part of the Division Bench order reads as follows: Since on the ultimate result on fixation of rent, we could not be ad-idem, the matter may be placed before the Hon'ble Chief Justice to refer it to a Third Judge to answer the following question: What would be the actual rent in 1995 in respect of the suit premises? Is it Rs. 14.50 as decided by the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of July 17, 2012 that spelt out that the fair rent at the suit premises was Rs. 15.50 per sq. ft per month. However, the defendant's valuer did not specifically assess the quantum of fair rent in 1995 to be Rs. 15.50 per sq. ft per month. 5. The suit was decreed on May 14, 2013 by holding that the fair and reasonable rent in 1995 for the suit property would have been Rs. 14.50 per sq. ft per month. 6. The plaintiff assailed the decree to the extent that it determined rent much lower than what the plaintiff perceived the rent to have been in 1995. The defendant preferred a cross-objection, primarily on the ground that the suit was not maintainable in view of section 47 of the Code of Civil Procedure, 1908. The Division Bench rejected the cross-objection, but there was a difference of opinion as to what ought to have been the rent for the suit premises in the year 1995. 7. It is imperative at the outset that the scope of the reference and the extent of the authority that may be exercised under Clause 36 of the Letters Patent be appreciated. Clause 36 of the Letters Patent, in its material part, provides that if a Division Court is composed of two or more Judges, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than or equal to Rs. 14.50 per sq. ft per month, it is the figure of Rs. 14.50 per sq. ft per month that would be the majority view since at least two of the three Judges would have found that to be the minimum amount to which the plaintiff was entitled. If, on the other hand, the assessment in the present reference throws up a figure which is greater than or equal to Rs.24 per sq. ft per month, the majority opinion would then be the rate of Rs.24 per sq. ft per month. Again, if the assessment herein leads to a figure between Rs. 14.50 per sq. ft per month and Rs.24 per sq. ft per month, then such figure would be the majority opinion of the Judges who have heard the case on such aspect thereof. 11. The plaintiff refers to the oral evidence of the experts on either side and their reports. The plaintiff exhorts that the report and the oral evidence of the representative of the Talbot Co. appear to be the more convincing and well founded and should be accepted in this reference. The plaintiff also relies on two documents that were permitted to be used by the plaintiff in course of the appeal pursuant to an order of the Division Bench of October 9, 2013, subject to a decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this reference. 15. The plaintiff refers to the judgment and decree of May 14, 2013 and, in particular, to the discussion as to the appropriate rate of rent at the suit premises in 1995 as contained therein. It is necessary to notice the observation on such aspect in the judgment in support of the decree: The location of the present property could not be equated with either of the properties. The defendant is an existing tenant. It is an admitted fact that the building is an old building. The accessibility to the suit premises could not be equated with the accessibility of the ICICI Bank which is situated on a main road and on a busy thoroughfare. If the property situated at the crossing of R.N. Mukherjee Road and Bentink Street could fetch a sum of Rs.20/-per sq. ft. for the ground floor even with all the disadvantages of the suit property would vary between Rs.14/- and Rs.18/- per sq. ft. The location and other special and distinctive features of this property are reflected in the report of the valuer appointed by the bank. ... ... In the instant case, in determining the said rent it has to be kept in mind that the bank is located near to the High Court at Calcut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 14.50/- per sq. ft. in 1995. The said rent is, accordingly, determined at Rs. 14.50 per sq. ft. in 1995 after taking into consideration the aforesaid factors as well as the basic rent in respect of the R.N. Mukherjee Road property, the letter dated August 23, 1982 of India Automobiles Ltd. (1960) and the determination of the rent by the valuer in respect of the suit premises in 1995. 16. It is evident that the trial court found that the rates of rent commanded by a property on Old Post Office Street near the High Court and another on R.N. Mukherjee Road would not be similar. As a consequence, the trial court noticed the rate of rent relied upon in the report of Talbot Co. for the 20, R.N. Mukherjee Road property and founded the assessment of appropriate rent at the suit premises by scaling down the rate for the R.N. Mukherjee Road property. In the plaintiff seeking to rely on the two additional documents that were taken on record by the appellate court order of October 9, 2013, the plaintiff suggests that the basis for the trial court assessment was flawed. The two additional documents pertain to. a 100-year old property at 1A, Old Post Office Street and a 50-year old prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench; and such question requires an assessment in this reference of the actual rent in 1995 in respect of the suit premises . 20. The defendant suggests that the assessment made by the trial court as accepted by one of the Judges in appeal should be followed since there is no error in the methodology adopted for the assessment. The defendant says that several pages have been expended in the judgment of the trial court to indicate why a figure closer to the estimate of the defendant's valuer was justified and, if the method was not awry, it is such figure which should be accepted. The defendant says that the approach adopted in arriving at the figure of Rs.24 per sq. ft per month by one of the members of the Division Bench is exceptionable. According to the defendant if the two valuers had suggested even more disparate figures the assessment by court could never have been by taking the average of the two figures. The defendant maintains that it was not incumbent on the court to accept either opinion as long as a cogent methodology was applied; or else, the court could have relied more on one opinion and less on the other and made an independent assessment to arrive at a fig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was available at the time the decree appealed against was passed, but it could not be produced on account of one or more of the grounds as recognised in the clause. The defendant refers to the dates of the two documents, of September 27, 2013, and suggests that Order XLI Rule 27(1)(aa) does not contemplate evidence which was not in existence at the time when the decree was passed may be relied upon in course of the appeal from the decree. 23. The provision cannot be read so narrowly as to imply that any material not in existence as at the date of the decree cannot be admitted into evidence at the appellate stage under clause (aa). In any event, the additional documents, the chargeability assessment slips relating to an Old Post Office Street property and an R.N. Mukherjee Road property, indicate the date when the queries were raised, which may not have been the date of the relevant transactions. 24. It is the other objection taken by the defendant as to the admission or admissibility of the two additional documents that requires to be considered. Though the words admission and admissibility originate from the same Latin root of admittere, in some contexts the apparent ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judging has to be in accordance with law and not on the basis of the personal perception of a Judge as to what is right or what it ought to be. The manner in which judicial authority may be exercised and the tools of the trade are well established. Most importantly, a judgment has to indicate the basis therefor for it to convey the rules of conduct to the litigants involved and the society at large; and, reveal the methodology adopted for it to be acceptable. 27. The nature of adjudication adopted by a referee Judge in a reference of the present kind, where there is a difference of opinion on a point in course of an appeal heard by a Division Bench of two Judges, would be as in the appeal from the order or decree. It is elementary that the approach in an appeal ought to be to ascertain whether the decision-making process and the impugned decision rendered are in accordance with law. The appellate court may step in, depending on the ambit of the appeal and the scope of the authority available in the appeal, if either the decision-making process or the decision is found to be not in accordance with law or erroneous. The approach in an appeal cannot be to make a fresh assessment by ..... 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