Decided on February 06,1956

Globe Theatres Ltd. Appellant
Khan Saheb Abdul Gani Respondents

Referred Judgements :-



VENKATARAMAIYA,.J. - (1.)THIS is an appeal from the decision of the learned District Judge, Civil Station, Bangalore, by which the suit filed by the Appellant for refund of purl, of Uic lunoiinl.'t paid lo nvipondcnU as rent with respect to a building used as a cinema theatre was. dismissed. It has been referred to a Full Bench by the Division Bench which heard it for disposal owing to difference of Opinion about the correctness of the, conclusion gfrlved at by the lower Court:
(2.)THE facts relevant for consideration are not in dispute. The Plaintiff is described in the cause title to the plaint as a company with limited liability having its registered office in Calcutta and represented by its managing director. The Plaintiff taecamo the leasee of a building situated in 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 Rs. 950/ - and increase of this by Rs. 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 Rs. 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 from payments made for the period '2ff -6 -1943 to 1 -10 -1946 at the agreed rate of Rs. 2,000/ -per month the amount payable at Rs. 950/ - per' month as fixed by Rent Controller.
The principal question for determination is whether the fixation of fair rent in the Rent Control proceedings entitles the Plaintiff to the refund claimed by him and this is covered by Issues 2 and 3 framed in the case. In the lower Court the parties seem to have sought consideration of only the provisions of the House Kent Control Order in force from time to time for dis posal of the case and it was held that these do not justify the claim. Mr. Engineer, learned Counsel for the appeallant, contended that the construction of these by the learned Judge as being not helpful to sustain the claim is wrong and referred to the orders and notifications issued from the beginning so as to facilitate the understanding of the changes made from time to time, the meaning lobe attached to these and the purpose thereof.

(3.)TILL 1 -7 -1948 when the Mysore Rent and Accommodation Control Order became applicable to the Civil Station it was governed by orders and notifications issued specially for this area. The first of these was brought to force on 7 -5 -1942. Of the eight clauses contained in this Clause (2) defines "House" as meaning a building or part of a building suitable for occupation as a resident and includes (a) gardon...appurtenant to such bulding (b) any furniture supplied by landlord for in such building; Clause 3 provider for The Controller recording i, finding that the rent of any house is excessive with or without a written complaint, Clause 4 tor his determining the fair rent and Clause 5 for matters to be taken into account. Clause 6 states: When the Controller has determined the relief rent Of a house - (a) the landlord shall not charge any rate in excess of such fair rent; (b) any agreement for the payment of rant in excess of such fair rent shall be null and void la respect of such excess and shall be construed as if it was an agreement for payment of the said fair rent; (c) any sum in excess of such fair rent paid, whether before or after the Commencement of the order in respect of such residence after the commencement of this order Khali be refunded to one parson by whom it was paid or at the option such person otherwise adjusted. By a 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 ae refunded to the person by whom it was paid or at the option of that, person otherwise ad -Justed. The House Rent Control Order was passed in exercise of powers under the Defence of India Rules and essentially a war measure intended to minimise the hardship due to inadequacy of accommodation and tendency of owners of buildings to exploit the situation. As in the case of prices of commodities and dealings in articles, rents of buildings were subjected to control by Government under special -orders and grant of relief under specified circumstances was made possible. To the extent this was done or could toe done there was interference with contractual rights and obligations. The conditions and limits of interference and its effects were laid down in the orders which underwent modifications to meet exigencies arising form time to time. The control provided for in the first order of 1941 related only to "Houses" as ordinarily understood, that is buildings in which persons lived. 'The meaning of the term was extended in 1943 so as to include buildings other than those 'in which persons lived, perhaps because of the need to afford relief to all occupants of buildings irrespective of the munru'r these wove used. This, by itself, does not justify the inference that in all respects the nature and degree of control capable of being exercised over "Houses" residential & non -residential were the same and no difference was intended to be made in regard to the directions which may be issued about both. The notification of 1943 implies that but for it, non -residential houses were exempt from control as otherwise it was superfluous. The effect of enlarging the meaning of House" was to extend the application of the provisions in the Order of 1941 concerning houses to non -residential buildings. That order enabled the Controller to find cut under Clause 3 if the rent stipulated for a house was excessive and if it was SO, to fix the fair rent under Clause 4 In accordance with the terms of Clause 5. The result of the determination of fair rent Clause 6 to be threefold; there is no limitation of applicability so far as prohibition of landlord to charge rent in excess of fair rent or the agreement relating to the payment of. Amount above the fair rent toeing ineffective.... As regards the liability for refund of what has been received in excess of 'Pair Rent' the obligation is attached to payments "in respect of residence" and not house. Even the notification was intended to make all the clauses in the Order of 1941 as operative to non -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 resident of that place. This view may be useful for interpreting; the term when it affects the qualification of a voter or candidate for election under that Act but cannot be of help to ascertain its exact meaning in all cases. Indeed no such meaning, can be attached to the word. In Ramanath Iyer's Law Lexicon after quoting from some cases that 'Residence' has variety of meanings according to the statute (or document) in' which it is used. It is an 'ambiguous word and may - receive a different meaning according to the position in which it is found, the author adds that. it is a word capable of different meanings a word whose statutory meaning de spends on the context and purpose of the statute (It), may receive a larger or more restricted meaning according to what the Court believes the intention of the legislature to have been in framing the particular provision to which' the word is used. It is true there are cases in which it has been, held that the residence of a corporation or company iii the place where it is registered or where it carries on business. This must be understood' as having reference only to the construction of the term for the application' of the particular laws in which It is found. When a company is registered in one country and carries on business in another the question as to where it must be deemed to have residence has arisen in some cases to determine liability for Income Tax. The decision in Egyptian Delta Land and -Investment Co. Ltd., v. Todd' 1929 AC 1 (B) clearly states that for Income Tax purposes it is the place where business is carried on. While considering the import of the expression "person resident in the United Kingdom" in the Income Tax Act, 1918 Viscount Sumner at page 12 said I do not think that residence is ever deter -mined for a natural person simply by the law. Accordingly under the decisions as well as in principle "resident is a term exceedingly unsulted to describe a statutory 'person' which can never be non -resident because by the law of its being it is a fixture. Lord Buckmaster observed at page 35 The difficulty which this question presents is due to the -fact that residence is essentially a condition applicable to men and the tests for its determination such as living and sleeping can have no proper counterpart in an abstract entity such as an incorporated 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 passed by the Resident fixes the fair restful does not decide the liability for refund. 9. It would be a strained construction of the term "Residence" having regard to all this, to -apply It to the use of a building as a cinema theatre (1944) 1 KB 200 (D), cited for the Appellant is distinguishable from the present case. No doubt the sub -tenant in that case who had paid rents In excess of what was due on the basis fo the standard Rent succeeded in enforcing his claim for refund of the excess but this was rendered possible by a .definite statutory provision as is pointed out at page 209 by the statement. The Plaintiffs claim to recover the alleged over -payment is based on Section 14 of the, Act of 1920 as amended by. The language in sub -class (a) and (b) of Clause 8 indicates the result at present and in future and Sub -clause (c) expresses the result concerning acts of the past. It may be that there Is a lacuna in the provision perhaps because of the orders "being passed in a hurry that it was with a very large number of other Acts when war was imminent" and having over -looked some aspects, or because the handicap or hardship alleged by Appellant was not' contemplated by the authorities but the Court cannot Improve upon it to afford relief. I do not find any good reason on the whole to discharge with the view of the lower Court that the provisions of the Rent Control Order do not justify the claim. The Plaintiff no doubt may have cause to complain that this Involves discrimination between residential and non -residential tenants. At the very outset the existence of the distinction between the two is noticed and only two years later the non -residential class was placed within its range. Even after this the two were not on a par in all respects as limits imposed for enhancement of rents are not the same for both. The reasonableness or propriety of the distinction is not a matter relevant for the decision and even if the object was to treat them alike,, it -is not so much tried supposed! as the expressed object which is material for the decision. The disadvantages or difficulties entailed on the Plaintiff "are due to the provisions not being such as may be availed of by him to support the claim and that being so the appeal has to fail. 10. Mr. Engineer argued that if relief can not be had under the Rent Control Order, the Appellant can seek it on 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 and. 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 what one has voluntarily agreed to but what is held by another to be more. The correspondence between the parties and the earlier order of the Rent Controller snow that the property was leased to Appellant tatty compliance with its wish to have the advantage of continuing the business in the premises and that the Respondents were more anxious to secure it for their own use than to let it out on any term. The finding of the Controller at first was that the rent stipulated for was not excessive and payment at the agreed rate was made without demur foil' more than three years. The present litigation would not have arisen but for the Order issued in 1946 during the pendency of the proceedings under the prior Order and the Resident as the appellate authority no having disposed! of the application finally under the prior Order or later ones and but for his leaving the claim for refund open. 11. Parties voluntarily entering into a con tract are wdltmrtiy bound by It and, when they have unreservedly acted up to It for a fairly long time they must be content with the result bene the:ficial or otherwise. No case in which the doctrine of unjust enrichment has been applied tr.v "recovery of unconditional voluntary payment under no mistake of fact has been cited. 12. The claim is permissible, if at all, wider the provisions of the Rent Control Order anil since this has been found to be not possible, the decision of the lower Court has to be upheld. 13. The appeal is consequently dismissed with costs. 14. I agree. 15. I also agree.

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