Madras High Court
K. Ramanathan (Died) And Ors. vs B.K. Nalini Jayanthi on 10 September, 1996
Equivalent citations: 1996(2)CTC700
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The unsuccessful tenants are the petitioners in these two civil revision petitions, which were filed against the judgment of the Appellate Authority/Chief Judge, Court of Small Causes, Madras, in R.C.A. Nos. 173 and 174 of 1987 dated 27.2.1989 fixing the fair rent to the premises of the petitioners herein at Rs. 760 per month in both the appeals, and modifying the order of the Rent Controller/9th Judge, Court of Small Causes, Madras, in R.CO.P. Nos. 3384 and 3467 of 1984, who fixed the fair rent at Rs. 816 and Rs. 814 respectively.
2. The respondent/landlady is the owner of the shops in question viz., Old Door No. 94, New Door No. 144, Royapettah High Road and Old Door No. 64/1 and new Door No. 181, Luz Church Road, Mylapore, Madras 4. She filed petitions for fixation of fair rent. The tenants were paying rent ranging from Rs. 75 to Rs. 90 per month per shop. It was the contention of the landlady that these shops are situated in a very important commercial locality surrounded by banks, shops, hotels, bus stand, etc., that they are also nearer to the residential buildings, that the land would fetch Rs. 4 lakhs per ground and that therefore, the fair rent should be fixed as prayed for in her petitions.
3. The tenants/revision petitioners while accepting the ownership, tenancy and monthly rent, have contended that the land would not fetch more than Rs. 1 lakh per ground, that the demised portions are all Type I buildings and are aged about 40 years, and that the present rent paid by them would be the fair rent for the portions occupied by them.
4. The learned Rent Controller fixed the fair rent at Rs. 816 and Rs. 814 respectively for the shops occupied by the revision petitioners as per the calculations found in paragraph' 17 of its order. Aggrieved by the order of the Rent Controller, some tenants have filed appeals before the Appellate Authority. The Appellate Authority fixed the fair rent at Rs. 760 per month for the shops of the petitioners herein. Two of the tenants alone have filed the present revisions against the order of the Appellate Authority, seeking to set aside the orders of the authorities below fixing the fair rent and to re-fix the fair rent to the petition mentioned shops.
5. When the revisions came up before S. Jagadeesan, J., it was contended before the learned Judge that the vacant site, which is not the subject matter of the lease, had been included in arriving at the value of the site. The learned Judge was not able to agree with the counsel for the petitioner. However, the authorities below have concurrently held that the vacant site is part of the lease-hold property. Learned counsel for the tenants raised another contention before the learned Judge with regard to the admissibility of the documents, viz., sale deeds, to fix the value of the site. His contention is, that when the sale deeds have been marked by consent, only the execution of the document is proved and not the contents and therefore, to prove the contents of the documents, the parties have to examine one of the parties-to the documents, i.e., either the purchaser or the seller. According to the learned counsel, though certain documents to prove the value of the site were filed before the Rent Controller, none related to the documents had been examined. Counsel for the tenants relied on an unreported judgment of S. S. Subramani, J., in C.R.P. Nos. 4673 and 4674 of 1987 dated 7.10.1994 wherein the learned Judge had held that to prove the contents of the documents, any of the parties to the documents had to be examined and without their evidence, the contents cannot be held to be proved even though the documents have been marked by consent. The learned Judge having held so, remanded the matter to the Rent Controller for taking a decision afresh by giving opportunity to both parties to adduce evidence afresh. Placing reliance on the judgment of S. S. Subramani, J., the counsel for the petitioners/tenants contended before the learned Judge (S. Jagadeesan, J), that the matter has to be remanded to the Rent Controller to prove the contents of the sale deeds. Dis-agreeing with the view expressed by S. S. Subramani, J., the matter was placed before the Hon'ble the Chief Justice for consideration of the issue raised by a Division Bench and for an authoritative pronouncement.
6. The gist of the reference order reads thus:
"With great respect, I am unable to agree with the view expressed by Subramani, J.
5. The Rent Control Act is a self-contained Code and the Code of Civil Procedure had been made applicable only to the limited extent. Even though the Rent Controller is considered to be a Civil Court, the Code of Civil Procedure do not as such apply in toto except to the extent provided by the Act itself. When the Rent Control Act is a self contained Code, the procedure to be followed has also been prescribed in the Rules. When the Code of Civil Procedure is not applicable in toto, equally the Evidence Act also cannot be made applicable to the proceedings under the Rent Control Act. In fact, the Rent Controllers are held to be persona designata. The Rent Control Act is a self contained and complete Code for the regulation of rights of landlords and tenants. In fact, in some of the cases, the Supreme Court has held that the pleadings in the Rent Control matters should be construed liberally without adhering to the principles of the Evidence Act.
6. If to prove the document, the person concerned with such document has to be called as a witness, sometimes the proceedings may be delayed. At times, the concerned person may refuse to appear, as there is no obligation on his part to give evidence. In such cases, both the landlord as well as the tenant would be prejudiced by the prolongation of the litigation. Only on this ground, the Section 51A had been introduced in the Land Acquisition Act, which makes it clear that the certified copy of a document registered under the Registration Act can be accepted as evidence of the transaction recorded in such document. If the parties to the document refuse to give evidence, then the document cannot be marked or even if the document is marked, the contents cannot be considered. The parties to the proceedings have no other source except the document to prove the value of the site. If those documents have not been marked or cannot be taken into consideration, absolutely there will be no material available on record to decide the value of the site. When the proceedings under the Rent Control Act cannot be equated to that of the civil suit, then the strict application of the Evidence Act also cannot be adhered to, depending upon the circumstances. Hence I am of the opinion that the judgment of my learned brother Subramani, J., required to be reconsidered.
7. Further it has to be considered whether the belated objection with regard to the contents of the document can be entertained, because both the parties to the proceedings have marked the documents on either side. The R.C.O.Ps. are of the year 1984. The revisions have been filed in 1991. After 12 years, if this objection is to be allowed and the R.C.O.Ps. to be remanded back, again for another 12 years period the landlady has to wait to get redressal. This will be one of the aspects to be taken into consideration in deciding the question.
8. Hence the papers may be placed before My Lord The Chief Justice for consideration of this issue by a Division Bench in order to give a quietus to the issue.
"Thus, the matter is now before us.
7. In the facts and circumstances of the case, two questions would emerge for consideration and they are:
1. Whether the mere production and marking of a document by consent is sufficient to prove its contents?
2. Whether the truth or otherwise of the facts or the contents so stated in a document would have to be proved by the evidence of those persons who can vouch-safe the truth of the facts in issue?
8. Points 1 and 2:~ We shall now consider the law on the subject. Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) reads as follows:-
"4. Fixation of fair rent - (1) The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub-sections.
(2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building.
(3) The fair rent for any non-residential building shall be twelve per cent gross return per annum on the total cost of such building.
(4) The total cost referred to in sub-section (2) and sub- section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent:
Provided that while calculating the market value of the site in which the building is constructed, the Controller shall take into account only that portion of the site on which the building is constructed and of a portion upto fifty per cent, thereof of the vacant land, if any, appurtenant to such building the excess portion of the vacant land, being treated as amenity:
Provided further that the cost of provision of amenities specified in Schedule I shall not exceed-
(i) in the case of any residential building, fifteen per cent; and
(ii) in the case of any non-residential building, twenty five percent, of the cost of site in which the building is constructed, and the cost of construction of the building as determined under this section.
(5) (a) The cost of construction of the building including cost of internal water supply, sanitary and electrical installations shall be determined with due regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for the area concerned. The Controller may, in appropriate cases, allow or disallow an amount not exceeding thirty per cent, of construction having regard to the nature of construction of the building.
(b) The Controller shall deduct from the cost of construction in the manner specified in clause (a), depreciation, calculated at the rates specified in Schedule II."
9. On account of the scarcity of houses, residential as well as non-residential, there has been a feeling that the landlords were making the tenants pay abnormal rents. Therefore, a machinery has been provided by the Legislature for fixing the fair rent on the invitation of parties. It is to mitigate the difficulties of tenants and at the same time to provide for a reasonable return to the landlord that Section 4 of the Act has been enacted. It did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenant. It wanted to be fair both to the landlord as well as to the tenant. A close reading of the Act shows that fair rent is fixed for the building and it is payable by whomsoever is the tenant, whether he is a contractual tenant or a statutory tenant. As far as the Tamil Nadu Act is concerned, the right to apply for fixation of fair rent is vested in all landlord and tenants of the building both during the subsistence of a contractual tenancy and after its determination, The effect of the decision of Court is that a landlord filing an application for fixing fair rent is entitled to the enhanced rent from the date of his application under Section 4 of the Act. In other words, the determination of the fair rent will date back to the order of the Rent Controller.
10. Section 28 of the Act reads thus:
"28. Summons to witnesses: Subject to such condition and limitation as may be prescribed, the Controller may, in his discretion, issue summons to witnesses requiring them to attend in person to give evidence or to produce documents in their custody in connection with any proceedings before him."
11. Rule 12 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 deals with procedure for the disposal of applications. It runs as follows:-
12. Procedure for the disposal of applications - (1) When an application is presented under Rule 11, the Controller or the authorised officer, or an officer authorised by him, as the case may be, shall fix the date on which and the place at which the inquiry in respect of the application will be held and sent notice thereof to the applicant or applicants and the respondent or respondents mentioned in the application and shall also send a copy of the application along with the notice to the respondent or respondents.
(2) The Controller or the authorised officer or an officer authorised by him, as the case may be, shall give to the parties a reasonable opportunity to state their case. He shall also record a brief note of the evidence of the parties and witnesses, if any, examined on either side; and upon the evidence so recorded and after consideration of any documentary evidence which may be produced by the parties, pass orders on the application.
(3) In any case in which an order is passed ex parte against a tenant or a landlord, or any order of dismissal for default is passed by the Controller, then the party affected may, within thirty days from the date of the order, or if he satisfies the Controller that he knew of the order only on a subsequent date, within thirty days from the date of such knowledge apply to the Controller by whom the ex parte order or the order of dismissal was passed, for an order to set it aside; and if he satisfies the Controller that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing or that such default was occasioned due to circumstances beyond his control, the Controller shall make an order setting aside the ex parte order or the order of dismissal passed, as the case may be, upon such terms as to costs as the Controller thinks fit and shall appoint a day for proceeding with the application.
Provided that no-order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party:
Provided further that in computing the period of thirty days for the purpose of this sub-rule, the time requisite for obtaining a certified copy of the order shall be excluded.
Provided also that where an application for setting aside the ex parte order or an order of dismissal for default has been received under this sub-rule for the first time, all execution proceedings in pursuance of the ex parte order of the order of dismissal for default shall be stayed until the disposal of the application.
Provided also that in respect of a second or subsequent application to set aside an ex parte order or an order of dismissal for default, the Controller shall have discretion to grant or refuse stay."
This rule contemplates the issue of summons to private witnesses at the instance of parties. It also authorises the Controller or the Appellate Authority to require the attendance of witnesses and production of documents. Rule 12(2) provides that the Controller shall give to the parties a reasonable opportunity to state their case and shall also record a brief note of the evidence of the parties and witnesses, if any examined on either side, and upon the evidence so recorded, and after consideration of the documentary evidence that may be produced by the parties, pass orders on the application.
12. Rule 26 of the Rules deals with service of summons. Rule 26(2) states that in respect of every summons issued under Section 28 of the Act, the person at whose instance the summons is issued shall pay into the office of the Controller a fee of one rupee and forty-five paise in the form of court fee stamps for the services of the summons and shall also deposit the amount of the allowances to which the witness is entitled for travelling and attendance at the Court according to the scale for the time being in force with respect to witnesses to Civil Courts in the State of Tamil Nadu.
13. In R.M.Y.R.M. Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd., A.I.R. 1948 Mad. 298 : 1947 (II) M.L.J. 535, the documents relied on by the defendant company to prove their case of mis-representation were marked an Exs.D-7c and P-2. The plaintiffs filed similar documents in connection with the policy granted by the defendant company because they were to some extent inconsistent with the corresponding documents sent to the defendant-company. The defendant-company had been unable to show how any of these documents are admissible in evidence. The Bench in regard to the facts spoken to by the parties, held that the same can be proved only in certain recognised ways, the chief of which is by giving oral evidence of them in Court. The Bench further observed that permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved.
14. In the decision reported in Sait Taraice Khimachand v. Yelamarti Satyam, the Supreme Court held that the mere marking of a document as an exhibit docs not dispense with its proof.
15. In the decision reported in T.C. Purushothama Reddiar v. S. Perumal, , the issue before the Court was, whether the respondent had arranged certain election meetings on certain dates. It was contended that the police reports are inadmissible in evidence as the Head Constable who covered those meetings has not been examined in that case. Those reports were marked without any objection. Hence, it is not open to the respondent now to object to their admissibility. It was next urged that even if the reports in question are admissible, the Court cannot look into the contents of those documents. While rejecting the contention, the Supreme Court held that once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
16. In the decision reported in Karuppanna Thevar v. Rajagopala Thevar, , a Division Bench of this Court, in an identical matter, held an follows:
"The consent of the party for marking the document only relieves the plaintiff of his obligation to prove that the original is a public document within the meaning of Section 74. But where document is alleged to have been signed by the defendant and that fact is disputed the plaintiff must prove the signature of the defendant or that the defendant signed the document as required by Section 67. The consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contents."
17. The decision reported in Karuppanna Thevar v. Rajagopala Thevar, , has also referred to the judgments in R.M.Y.R.M. Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd., A.I.R. 1948 Mad. 298 : 1947 (II) M.L.J. 535, which considered the effect of marking a document by consent, and T.C. Purushothama Reddiar v. S. Perumal, . The Bench referred to the observations made in R.M.Y.R.M. Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd., A.I.R, 1948 Mad. 298, that permitting a document to be marked by consent only means that the party consenting is willing to waive his rights to have the document in question proved, that is, the plaintiff was prepared to admit that the documents were what they purported to be, namely, a certificate given by the doctor and sent to the defendant and a reply given by the doctor to the questionnaire sent by the company. But agreeing to the document being marked by consent did not mean that the plaintiff accepted the correctness of every statement made by the doctor in those two documents. The correctness of the allegations contained in the certificate given by the doctor and in his reply would have to be proved only in the recognised ways as contained in the Evidence Act.
18. The decision reported in G. Bulliswamy v. C. Annapurnamma, is a revision petition preferred by the plaintiff against the order of the First Additional District Munsif, Visakhapatnam holding that the deposition recorded in N.E.C.No. 77 of 1969 on the file of the Principal District Munsif, Visakhapatnam, was a deposition recorded by a competent Court in a judicial proceeding and that it can be admitted in evidence under Section 33 of the Indian Evidence Act, thereby over-ruling the objection raised by the petitioner to its admissibility. The plaintiff challenged that order in the above revision. A learned single Judge of the Andhra Pradesh High Court in paragraph 13 has observed as follows:
"I have, therefore, to sec whether this is a case for interference by this Court under Section 115 of the Civil Procedure Code. The lower Court has got no doubt jurisdiction to admit the deposition recorded in an earlier proceeding before the Rent Controller, provided that the provisions of Section 33 of the Evidence Act arc satisfied. In order to invoke Section 33, the lower court should be satisfied that the presence of such an expert cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable."
The learned Judge has further observed that it is pre-eminently necessary that the evidence of such an expert should be recorded in open court so that the Court may have an opportunity of assessing the value of such evidence.
19. In the decision reported in Ramji Dayawala and Sons (P) Ltd. v. Invest Import, , the Supreme Court has observed as follows:
"Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue more proof of the handwriting and execution of the document would not furnish evidence of the truth of the fasts or the contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e., by the evidence of those persons who can vouchsafe for the truth of the fasts in issue."
20. In the decision reported in Manicka Mudaliar v. Shanmugasundara Mudaliar, 1982 (95) L.W. 297 Swamikkannu, a learned single Judge of this Court held that merely marking of a document without proving the same is not permissible in law. The learned Judge has held as follows:
"The documents filed and marked in a case have to be proved in regard to the Indian Evidence Act so that the contents of the said documents can be taken an evidence. By merely marking the documents by consent, the Court is not obliged to look into the contents unless those documents are formally proved in accordance with the provisions of the Indian Evidence Act. The Indian Evidence Act contemplates only certain documents that can be taken judicial note of and when they are enumerated, apart from the said documents, no other document could be taken judicial notice of by a Court... The profession tax certificate issued by the Panchayat President to the petitioner and the income certificate issued by the Commissioner of the Panchayat Union to the respondent and marked as exhibits cannot said to have been proved in accordance with the principles of Evidence Act, unless some witness speaks about the same, In other words, the genuineness or otherwise of those documents and the veracity of the contents of the same as well as the admissibility or otherwise as per the provisions of the Indian Evidence Act can be taken into consideration by a court of law before actually give a finding regarding the points that had been raised in the petition. Therefore, in the instant case, Ex.A-1, B-l and B-2 cannot be said to have been proved. They have to be marked subject to admissibility and relevancy and the documents that are filed cannot be construed as relevant documents."
21. The correctness of the above ruling in Manicka Mudaliar v. Shanmugasundara Mudaliar, 1982 (95) L.W. 297 was canvassed before the Hon'ble The Chief Justice by the petitioner in C.R.P.No. 918 of 1983. Finding substance in the argument of the learned counsel for the petitioner, the Hon'ble the Chief Justice directed the revision to be posed before a Division Bench and therefore the matter was posted before the Division Bench consisting of M.N. Chandurkar, Chief Justice and K. Venkataswami, J., as he then was. In that case A.V.S. Perumal v. Vadivelu Asari, 1986 (I) M.L.J., 233, the petitioner in the revision is the defendant in the suit. The respondent filed the suit for declaration of his right to continue in possession of the suit property as lessee and for permanent injunction. Before the trial court no oral evidence was let in by either side. However, both sides filed documents and they were admitted and exhibited as Exs.A-1 to A-24 on the side of the plaintiff/respondent and Exs.B-1 to B-12 on the side of the defendant/petitioner. The trial court had observed that no oral evidence was let in on both sides, that the documents filed by the plaintiff were marked as Exs.A-1 to A-24 and the documents filed by the defendant were marked as Exs.B-1 to B-12. The trial court on an appreciation of the nature of the documents, etc., dismissed the suit accepting the case of the defendant. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal before the District Judge, Salem. Before the District Court, I.A.No. 321 of 1982 was filed by the plaintiff for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The said petition was opposed by the defendant. The learned District Judge passed a Common Judgment in the appeal as well as in I.A.No. 321 of 1982, and disposed of the appeal by a common order stating that either party did not let in any oral evidence, and relying upon the decision in Manicka Mudaliar's case, 95 L.W. 297, he remanded the suit for fresh disposal after examining witnesses and proving the documents through witnesses. He allowed I.A.No. 321 of 1982 also. Aggrieved against the common order in the appeal and in I.A.No. 321 of 1982, the revision has been filed in this Court by the defendant.
22. Before the Division Bench it was argued that the principle of law laid down in Manicka Mudaliar's case, 95, L.W 297 is too wide and requires reconsideration. It is the contention of the counsel for the petitioner that the appellate court ought not to have allowed the appeal by setting aside the judgment and decree of the trial court on the ground that the document marked in the trial court by consent could not be relied on as there was no oral evidence to prove the contents of the documents exhibited. It was further contended that when the documents were marked by consent, not only there was no further need for a formal proof of the documents, but also it would amount to proof of whatever the documents contained. In support of his contention, learned counsel for the revision petitioner has relied on some rulings of this Court.
23. Arguing contra, learned counsel for the respondent/plaintiff submitted that the District Court was right in applying the law laid down in Manicka Mudaliar's case, 95, L.W 297, and allowing the application as well as the appeal. According to the learned counsel, even though the documents were marked in the trial court by consent, that will not absolve the respective parties from proving the contents of the documents so exhibited. According to him, the consent given for marking the documents will only absolve the parties from formally proving the documents and nothing beyond that. In support of his submission, learned counsel for the respondent also relied on the decisions reported in R.M. Y.R.M. Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd, A.I.R. 1948 Mad. 298 ; 1947 (II) M.L.J. 535 and Sait Tarawa Khimachand v. Yelamarti Satyam, .
24. The Division Bench consisting or M.N. Chandurkar, C.J., and K. Venkataswami, J., as he then was, said that the principle of law laid down in Manicka Mudaliar's case, 95 L.W 297 is not wholly erroneous but requires modification in the light of the earlier Division Bench decision of this Court, The Bench also further said that they are in respectful agreement with the two Division Bench Judgments which succinctly laid down the correct proposition of law. The two Division Bench judgments are R.M.Y.R.M. Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd, AIR. 1948 Mad. 298 and Karuppanna Thevar v. Rajagopala Thevar, 1974 (II) M.L.J. 260. We have already adverted to the above two Division Bench judgments in paragraphs supra. The latter Division Bench not only noticed the earlier Division Bench judgment of this Court in R.M.Y.R.M. Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd., A.I.R. 1948 Mad. 298, but also the judgment of the Supreme Court in P.C. Purushotham v. Perumal, , to which we have already adverted to in paragraphs supra. On a consideration of the entire rulings placed, the Division Bench has expressed its view about the correctness of the decision in Manicka Mudaliar's case, 1982 (95) L.W. 297 in the following manner:
"In Manicka Mudaliar's case, 1982 (95) L.W. 297, the learned Judge has held as follows:
'By merely marking the documents by consent, the court is not obliged to look into the contents unless these documents are formally proved in accordance with the provisions of the Indian Evidence Act.' We think, with respect to the learned Judge, the above proposition is too wide and needs modification. The correct position as found by the earlier Division Bench approved by the later Division Bench is as follows:
'permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved.' The learned single Judge, in Manicka Mudaliar's case, 1982 (95) L.W. 297 has taken the view even that formal proof also is required notwithstanding the fact that the document was marked by consent. To that extent, the learned single Judge, with respect is not right."
The Division Bench allowed the revision and set aside the judgment of the appellate court and remanded the appeal for fresh disposal by the appellate court in accordance with the discussion made in the judgment.
25. In the decision reported in R. Soundarapandian v. Santhanadevan, 1980 (I) M.L.J. 86, a learned single Judge of this Court, also following the earlier Division Bench judgments of this Court, held that the consent given by a party for marking a document docs not dispense with either the proof of the contents of the document or the truth or otherwise of the contents.
26. In the decision reported in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, , while considering the determination of the marked value in a land acquisition case, the Supreme Court suggested certain features viz., the relationship of parties, the market conditions, the terms of the sale and the date of the sale would be established by examining either the vendor or the vendee, and if they are not available, the attesting witnesses who have personal knowledge of the transaction. The Supreme Court held as follows:
"The underlying principle to fix a fair market value with reference to comparable sale is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification: (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired; and (4) it should posses similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of sale transactions. The proof also would focus on the fact whether the transactions arc genuine and bona fide transactions."
27. In the decision reported in Raju v. Mohamadabi, 1993 (II) M.L.J. 290, which can also be bonaficially noticed in regard to the controversy now raised by the learned counsel for the tenant, one of us sitting single (K.A. Swami, C.J.), has observed as follows:
"Under the Act, in question, in Rent Controller adjudicates the civil rights of the parties, examines the parties, records the evidence of the witnesses that arc produced and he is also expowered to summon the witnesses to give evidence. Therefore, he has got all the trappings of a civil court. Thus, the powers exercisable by the Rent Controller under the Act and the rights adjudicated by him of the parties, undoubtedly lead to a conclusion that the Rent Controller is a Court. If that be so, in the absence of any specific provision excluding the application of Section 5 of the Limitation Act and in view of the provisions contained in Sections 3 and 5 of the Limitation Act, it shall have to be held that the provisions of Section 5 of the Limitation Act are attracted to on application filed under the Act for setting aside an ex parte order of eviction passed by the Rent Controller."
28. In the decision reported in Inder Singh v. Union of India, , while dealing with the rights of the claimants to receive just and reasonable compensation and also fixation of the market value of the lands as on the date of the publication of the notification under Section 4(1) of the Land Acquisition Act, the Supreme Court has observed as follows:-
"It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if cither of them was not available, the attesting witness who had personal knowledge of the transaction is to be examined by producing either the original sale deed or certified copies thereof as evidence. Under Section 51-A of the Act as amended in 1984 the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein. The examination of the witnesses is to find that the sale transactions arc bona fide and genuine transactions between willing vendor and willing vendee as reasonable prudent man and the price mentioned is not throw away price at arms length or depressed sales or brought into existence to inflate market value the lands under acquisition and the sales are accommodating one. Equally it must be brought on record the comparative nature of the lands covered under the sale deed and the acquired lands whether adjacent or actual distance or possessed of similar advantages and whether transactions themselves are genuine and bona fide transactions. This proposition of law, since settled law, in fairness, has not been disputed across the bar. The contention is that at the relevant time it was not being insisted upon. Therefore, none of the witnesses was called upon to prove the sale deeds or to prove the sale transactions. Therefore, when evidence of potential value is available, the same could be considered. We find merit in the contention. At one time we thought of remanding the cases but we find that it would be needless prolongation and the completion on ground by now would have been completely changed. In view of the above settled legal position and the circumstances, the documentary evidence of sale transactions or in the mutation entries on either side are clearly not admissible and therefore, they cannot be looked into and arc accordingly excluded from consideration."
29. In the decision reported in Jawajee Naganathan v. Revenue Divisional Officer, , the following passage emphasizes the point at issue:
"The burden of proof is always on the claimant to prove, in each case the prevailing market value as on the date of notification published in the States Gazette under Section 4(1) of the Act with reference to the sale deeds of the same lands or neighbour's lands possessed of same or similar advantages and features executed between willing vendor and willing vendee or other relevant evidence in the Reference Court."
30. To determine the fair rent under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act evidence in each case is absolutely necessary. It will not be possible for any Court to have an idea about the relevant factors, viz., location of the site, proximity, nearness to the developed areas, frontage, situation, etc., etc., in any case, merely on the basis of sale deeds pertaining to some lands in the locality. Even the particulars contained in a given case arc sufficient to prove the nature and character of the lands, dealt with therein, there must be evidence before the Court to the effect that the lands are similar in nature and the character of the lands dealt with in such sale deeds, and those documents could be taken into consideration for fixing the fair rent for any residential of non-residential building. If a party rests content with producing some sale deeds and if there is no material before Court, the sale deeds cannot be taken into account by the Court for determining the market value. Therefore, as held by the Supreme Court in Inder Singh v. Union of India, and Gulzara Singh and Ors. v. State of Punjab and Ors., referred to supra, persons connected with the sale transactions or the attesting witnesses should be examined in order to prove the transactions as well as the factors referred to therein. The burden of proof is always on the landlord to prove in each case the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent. Under Section 64 of the Evidence Act, documents must be proved by primary evidence except in cases mentioned in Section 65 of the Evidence Act.
31. Section 51-A of the Land Acquisition Act has been introduced in the Land Acquisition Act. By virtue of the said section, the provisions of Section 65(f) of the Evidence Act become operative and registration copies of sale deeds or other documents may be accepted as evidence of the transaction recorded in the document in the proceedings under the Land Acquisition Act. Section 51-A of the Land Acquisition Act does not dispense with proof of the relevant factors which are absolutely necessary to enable the Court to determine the market value of the land. Therefore, oral evidence is necessary to speak about the transactions proved by the sale deeds. We have already extracted the observations made by the Supreme Court in Inder Singh v. Union of India, , wherein the Supreme Court has expressly referred to the provisions of Section 51-A of the Land Acquisition Act. Our above view is also fortified by many rulings referred to in the earlier part of this judgment.
32. For the fore-going discussions, we hold that the view expressed by S.S. Subramani, J., in C.R.P.Nos. 4673 and 4674 of 1987 dated 7.10.1994 is correct. We are of the view that the learned Judge has rightly set aside the orders of the authorities below in that case and remitted the matter to the Rent Controller to decide the case afresh since the finding was not based on legal evidence.
33. We do appreciate the anguish expressed by S. Jagadeesan, J., in regard to the pandency of the case in various forums for more than 12 years. It is true that the petitioners herein have not raised the issue of non-examination of witnesses, etc., to prove the sale deeds, etc., before the authorities below or in the grounds of revision, We could have straightaway dismissed the revisions on the ground of non-raising of these points in the grounds of revision. But, however, the mistake of a counsel cannot stand in the way of the tenants getting the benefit of the rulings of this Court and also of the Supreme Court on a pure legal issue. It is true that the matter is pending in some forum or the other for the last 12 years. No one can be blamed for the law's delay, which is due to various circumstances. The landlord is also not prejudiced in any manner since the landlord, filing an application for fixation of fair rent, is entitled to the enhanced rent from the date of him application under Section 4 of the Act, and that any determination now made by the Court below will date back to the date of the petition under Section 4 of the Act.
34. In the result, both the civil revision petitions are allowed. We remit the matter to the Rent Controller for taking a decision afresh. Both parties arc at liberty to adduce evidence afresh both oral and documentary and reasonable opportunity shall be afforded to both parties to do so. The reference is answered accordingly. Both the points arc answered in favour of the petitioners and against the respondent. There will be no order as to costs. Taking into consideration the age of the case, we direct the Rent Controller to dispose of the R.C.O.Ps., within three months from 30.9.1996. The parties are directed to appear before the Rent Controller on 30,9.1996 without waiting for the notice from the Rent Controller.