9911796707
TMI Blog2014 (4) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... ordship." By an indenture of lease of January 8, 1947, the owner of the suit premises at No. 5, Kiran Shankar Ray Road, Calcutta - 700 001, demised an area measuring 4000 sq. ft on the ground floor of the building in favour of one Commilla Banking Corporation Ltd. The lessee merged with the defendant bank in 1950 and the defendant has been in occupation of the suit premises since. The tenure of the original lease has long expired and the owner of the suit premises recognises the defendant to be a monthly tenant in respect of the premises. 2. In or about 1990, the then owner of the suit premises filed an eviction suit against the defendant. The suit was decreed on August 6, 1990 on the basis of a compromise petition of the parties. Clause 1(iii) of the joint petition of the parties thereto and incorporated in the compromise decree provided as follows: "(iii) The Defendant has agreed to review the rates of rent in the year 1995 and thereafter at the instance of the Plaintiff he (sic, be) reviewed after every 5 years which will be not exceeding 15% of the existing rent." 3. In or about February, 1994 the plaintiff came to be the owner of the land and building at 5, Kiran Shankar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it." 8. It is evident that upon there being a difference of opinion of the Judges of a Bench comprising an even number of Judges, a reference shall be made only to the extent of the difference and such aspect shall be placed before another Judge or a Bench of more than one Judge, provided that the differing Judges are not party to any Bench taking up the reference. The ultimate decision on the relevant aspect would be the majority view thereon. 9. In practice, upon there being a difference of opinion in a two-Judge Bench, the point of difference is referred to a third Judge, as in this case, for the third Judge to concur in the opinion of one of the two original Judges for a majority view being obtained on the point of difference. In the everyday case, if there are only two possible answers to a question and there is a difference of opinion in a two-J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring of the appeal.. 12. The two additional documents are copies of the chargeability assessment slips pertaining to parts of the properties at 1A, Old Post Office Street and 21, Rajendra Nath Mukherjee Road. The value of 4000 sq. ft of carpet area at 1A, Old Post Office Street is shown in the first of the documents to be Rs.11,80,80,000 and the value of the R.N. Mukherjee Road property of equal carpet area is stated to be Rs.9,43,50,000. 13. In the report of Talbot & Co., three properties were considered: an area of 5000 sq. ft in Mangalam Building on Old Court House Street; an area of 6241 sq. ft on the ground and mezzanine floors in a building at 20, R.N. Mukherjee Road; and, an area of 6000 sq. ft in the Jardine Henderson Building on Clive Row. The report speaks of both the Mangalam and Jardine Henderson buildings being new constructions. It is the weighted rate of rent in respect of the 20, R.N. Mukherjee Road property that has been based to support the opinion of the monthly rate of Rs.32.50 per sq. ft as the appropriate rental value of the suit premises in 1995. The oral evidence of the concerned chartered valuation surveyor of Talbot & Co., according to the plaintiffs, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re monthly rent of Rs. 1 per sq. ft. per month. Even 15% increase of the said rent, i.e., Rs.4146.73 p. in 1995 would not be a fair rent in respect of the said property. It was precisely for that reason the bank had agreed to review the rent in the year 1995. The valuer appointed by the bank has given a report fixing rent at Rs.8.40 per sq. ft. per month in 1995." ... "A comparative assessment of the nature, location, accessibility to the main road, amenities available in the suit premises on the one hand and similar characteristics of the premises surrounding on the other hand could be a relevant consideration for determination of rent. Even in the same locality, the rent may differ. A lower rent in a comparable unit may not always be a guiding factor in determining rent if it appears to be meagre and abnormally low. Considering the valuation report and other evidence on record it appears that the "existing rent" in 1995 could vary between Rs. 14/- and Rs.18/-. Three properties were taken into consideration by the valuer on either side in giving their opinion. My conclusion is based on the assessment of the evidence on record and after taking into consideration the comparative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erjee Road property commands a value of, roughly, 20 per cent less than the older Old Post Office Street property. Since the rate of rent that a property would command is directly proportional to the value of the property, it would appear from the additional documents that rent at a comparable property on Old Post Office Street would be substantially higher than the rent at a property on R.N. Mukherjee Road. 17. The plaintiff refers to a judgment reported at (2009) 11 SCC 141 (Mahesh Dattatray Thirthkar v. State of Maharashtra) for the proposition that the minor inconsistencies in any testimony should be disregarded when a matter is decided on the principle of balance of probabilities and not on the basis of beyond reasonable doubt. In that case, involving the valuation of a property acquired under the Land Acquisition Act, 1894, the issue was whether the distance between the acquired property and the comparable property being in excess of 0.5 km and closer to 2 km made any material difference. The Supreme Court opined that the perceived inconsistency was insignificant as the properties were sufficiently close to each other. In such context, there does not appear to be any materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al documents that were taken on record by the appellate court order of October 9, 2013, the defendant says that since the admissibility of the documents was not pronounced upon, no cognizance thereof can be taken in course of this reference. In such context, the defendant places Order XLI Rule 27 of the Code and claims that none of the limbs of sub-rule (1) thereunder was satisfied for the appellate court to allow such documents to be produced or lend credence thereto. The defendant points out that the order of October 9, 2013 did not record any reason for the admission of the two documents and, indeed, the issue of admissibility was left undecided; and was ultimately not addressed. Order XLI Rule 27 of the Code provides as follows: "Rule 27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate court order of October 9, 2013. The word "admissibility" used in the penultimate paragraph of such order, in the context of deciding on the admissibility of the documents, refers to the validity or the acceptability of the documents and has to do with the quality thereof. The order of October 9, 2013 does not imply that the two documents were not admitted in the sense of "admission" within the meaning of the word as used in Order XLI Rule 27(2) of the Code, though no reason in terms of such sub-rule appears from the order. Once the two documents have been admitted, in the sense that they have been taken on record, the "admissibility" of the documents, in the sense of their validity or veracity, is an issue as to the quality of the documents. The defendant has not questioned the veracity of such documents. 25. The plaintiff has introduced the two additional documents to detract from the methodology adopted by the trial court in making the assessment of the rent that the suit premises would have commanded in the year 1995. The plaintiff questions the rationale in the judgment and decree that a property on R.N. Mukherjee Road would command a higher rate of rent than a compar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that culminated in the decision rendered by the trial court on the aspect which is relevant for the reference that falls for scrutiny herein. It has to be kept in mind that if the decision-making process that culminated in the decision cannot be flawed, and the decision involved an element of discretion or guesswork - as is always the case in assessing reasonable or market rate of rent - the appellate court would not intervene to supplant its discretion or guesswork unless the exercise of discretion or the guesswork involved is found to be perverse. 29. On such basis as indicated above, the assumption which is evident in the decision-making process of the trial court, in perceiving a comparable property on Old Post Office Street to command a substantially lesser rate of rent than one on R.N. Mukherjee Road, is found to be not substantiated by any cogent ground. There was no material before the trial court for it to conclude or deduce therefrom that a comparable property on Old Post Office Street would fetch substantially less rent than one on R.N. Mukherjee Road. On the contrary, the additional documents introduced by the plaintiff in the appeal, which indicate the values of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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