CHUNILAL VITHALDAS versus MOHANLAL MOTILAL PATEL

Citation: [1966] SUPP. 1 S.C.R. 180 · Decided: 15-04-1965 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

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Judgment (excerpt)

180 
CHUNlLAL VITHALDAS 
v. 
MOHANLAL MOTILAL PATEL 
April 15, 1965 
. [K. N.-WANCIIOO, J. c. SHAH AND s. M. Snuu; JJ.] 
Saurashtra RenJt Control Act 22 of 1951, s. 28-Section providing 
for s2cor..d a.pp2aL agair~st judgment of first appelLate coUrt 
under 
the Act-Such· second appeal whether restricted by s. 100 of Code of 
Civil Procedure. 
The TespOD.dent ·V·las the ~\vner of a buildifig used as a cinemato-
graph theatre. By a registered deed dated December· 23, 1960, the 
appellant obtained a lease of the. theatre at · a monthly rental of 
Rs. 1801/-. He then applied under s. 11 of the Saurashtra Rent Control 
Act 22 of 1951.for an order fixing the standard rent of the. theatre. The 
Court of First Instance fixed the standard rent of the whole. theatre 
at Rs. 1030/12/-. Against th:s order the respondent filed an appeal 
· under s. 28(1) of the Act to the District Court. That court fixed the 
rental at Rs. 1150/-. Against the order of the District Court second 
appeal under 3' 23 (2) of the Act was preferred by the appellant to 
the High.Court It was dismissed under 0.41, r. 11(1); of the Code 
of Civil Procedure. Aggrieved. the appellant came to this Court. It 
vvas contended, inter alia7 
that 
(i) a second appeal under s. 28 of 
the Act was not governed by s. 100 of the Code of Civil Procedure, 
(ii) that in calculating the cost of the ·building the courts below 
erred in taking into. consideration the whole price paid by the res-
pondent for the land as well as the buildings standing on it at the 
time of purchase, and that (iii) the District Court erred in taking 
7% as a~ adc9uat~ retw·n iii r~spect of the prcper~y .i1?- question. 
HELD: (i) .The second appeal under s. 28 of the Act may be en-
tertained by the High Court within the limits provided by s. 100 of 
the Code of Civil Procedure, and it is not open to the parties to dei-
mand reappraisal of the· evidence by the High Court on the ground 
that the District Court had erred in its view of the evidence. The 
High Court was competent to dismiss the appeal under 0.41, r. 11(1) 
of the Code. [184 G] 
· 
· • 
The exPression 'second appeal' in· the Code meaiiS an appeal to 
the High Court from the decision in a civil suit or proceeding of a 
first appe!late ·court subordinate to the High Court. [183 F] . · . 
A 
B 
c 
D 
E 
F 
The disputes directed to be dealt with under the Act are essen-
tially disputes of a civil nature and the courts invested with the 
power under s. 27 of the Act have to adjudicate upon the disputed 
G 
rights in the light of its special provisions. The procedure in the 
trial of suits, -applications and proceedings under the Act is the pro-
cedure prescriocd by the Code of Civil Procedure except when it 
is otherwise provided expressly or by clear implication. (183 G] 
It is true that the proceedings under s. 11 do not result in a 
decree and that certain orders under the Act are made appealable 
H 
under s. 28 though such orders are not appealable under the Code. 
But the right of appeal on that account is not released from the 
restrictions which zre attracted by its very nature. (184 A-B, F-G] 
I • 
i 
-~ 
O. VITIIALDAS V. MOTILAL PATEL (Shah, J.) 
181 
A 
Doshibai Khanna v. Sandhi Suleman Gulmamad, 6 Guj.L,R. 342 
B 
c 
D 
E 
F 
G 
B 
and Nagardas Harichand v. Modi Mohanlal, S.A. No. 381 of 1960 dt. 
21-9-1964, disapproved. 
Union of India v. Mahindra Supply Co. [1962] 3 S.C.R. 497, dis-
tinguished. 
(ii) The courts below did not commit any error in ta!>ing, into 
consideration the whole price paid by the respondent for the land and 
building purchased by him. A building when let out forms a com-
posite unit with the land on which it stands and the rent received 
from the building cannot be wholly attributed to the building. [185 
F-G] 
(iii) On a review of the reasons given it could not be said that 
the District Court committed any error oJ' principle in coming to the 
conclusion that 7% gross return on the cost of construction should be 
regarded as an adequate return from the property in question. 
[186 G] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 427 of 
1964. 
Appeal by special leave from the judgment and order dated 
August 28, 1959 of the Bombay High Court in Civil Application 
Na. 1638 of 1959. 
Bishan Narain, J. P. Mehta, S. N. Prasad, J. B. Dadachanji, 
0. C. Mathur and Ravinder Narain, for the appellant. 
R. M. Hazarnavis, K. L. Hathi, Atiqur Rehman, for the res-
pondent. 
The Judgment of the Court was delivered

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