Babulal Lakshmi Chand vs Jivraj Lakshmi Thakar

Roxburgh, J.—This is a Rule against an order passed in appeal by the Special Bench, Calcutta Court of Small Causes, on January 18, 1951, setting aside an order of a Judge of that court passed on June 24, 1950, as a result of an application made u/s 18(1) of the West Bengal Premises Rent Control Act, 1950, and allowing the application. The proceedings under Chapter VII of the Calcutta Small Cause Courts Act were instituted on August 30, 1949, that is to say, under the provisions of the West Bengal Premises Kent Control Act, 1948. On February 7, 1950, an ex parte order was passed in the landlord''s favour.

On March 31, 1950, the West Bengal Premises Rent Control Act XVII of 1950 came into force, and on April 17, 1950, the tenant made an application u/s 18(1) of that Act which was allowed by the trial Judge on June 24, 1950, after the tenant had deposited the arrears of rent with interest and costs as required by the provisions of section 18(2) of the Act. The tenant was in default under the provisions of section 12(3) of the Act of 1948 and had thereby ipso facto ceased to be a tenant. Therefore, at the date when the learned trial Judge passed the order on June 24, setting aside the decree in the suit, his order was not in accordance with the decision of this Court in the case of Sm. Nandorani Dassi Vs. Satya Narain Harit, .

On July 15, 1950, the landlord appealed against the order of June 24. The appeal was disposed of on January 18, 1951. In the meantime, the West Bengal Premises Rent Control Act LXII of 1950 had come into force on November 30, 1950.

The lower appellate Court bases its order allowing the appeal on the around that the case in question before it was one u/s 18(5) of Act XVII of 1950, and in accordance with the decision in Sree Narayan Mansingka v. Amar Nath Misra (2) [(1950) 55 C.W.N. 86] held that the tenant was hit by the proviso to section 14(3) of that Act.

In my opinion, this decision is erroneous If it is not, we have the startling position that an order that was correct under the law applicable in the trial court was incorrect because a different law was concurrently applicable in the appellate Court.

The original proceeding, as I have said, was disposed of by all order for possession on February 7, 1950, before Act XVII of 1950 came into force. It was clearly therefore a case in which relief could be given, if at all, by the trial Judge, on an application u/s 18(1) of that Act. The trial Judge passed an order which has not been assailed and I think could not be assailed, except on the ground that at the time it was passed it had been held that section 18(1) did not give relief to persons who had ipso facto ceased to be tenants u/s 12(3) of the Act of 1948. After the order was passed, the landlord''s original application under Chapter VII stood dismissed. The appeal by the landlord was, I think, an appeal in the original "suit".

It is to be noted that when the appeal was filed there had still been no alteration in the law. The law was altered during the pendency of the appeal and some of the provisions in the amended law were made explicitly retrospective. Section 5 of Act LXII runs as follows :

In all applications made under sub-section (1) of section 18 of the said Act which are pending at the commencement of this Act and in all suits referred to in sub-section (5) of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied.

In my opinion, on November 30, 1950, when this section came into force there was no application under sub-section (1) of section 18 of the Act pending. The tenant''s application under that section had been disposed of on June 24, 1950. There was only pending an appeal in regard to the original proceedings commenced on August 30, 1949. In other words, the matter before the appellate court was a suit "referred to in sub-section (5) of the said section 18 which" was "pending at such commencement". Consequently, Act XVII as amended by Act LXII was to apply in that appeal. By the amending Act, section 18 had been amended both in sub-section (1) and sub-section (5) so as explicitly to give relief to persons who ipso facto had ceased to be tenants for default of payment of three months'' rent u/s 12(3) of the Act of 1948. The Special Bench had to deal with the order passed on June 24, 1950, by the trial Judge and to apply section 18 as amended. That section as amended had the effect, in my opinion, that the order of the trial Judge was entirely correct. The only error in that order, namely, that relief had been given to a defaulter u/s 12(3) of the Act of 1948, did not exist under the amended section whose terms were to be applied retrospectively. In that view of the matter, the proper order for the appellate court, in my opinion, was to have dismissed the appeal.

The case might be looked at in another way, namely, that the appeal by the landlord was not an appeal against the order of dismissal of the "suit", but an appeal against the order made on the application u/s 18(1) by the tenant. A difficulty there is, however, that there is no provision whatever for any such appeal in Act XVII Of 1950. In fact the Special Bench itself is a creature of the Act of 1948. Moreover, section 5 of Act LXII of 1950, quoted above, makes no provision for the retrospective application of the amended provisions to appeal against orders made u/s 18(1) of the Act so that it does not seem possible to deal with the matter on those lines.

I may say frankly that the real difficulty in such cases as the present only arises from the view held in the case of Sreenarayan Mansingka Vs. Durga Dutt Misra and Others that the terms of the proviso to section 14(3) apply to cases coming u/s 18(5) of Act XVII of 1950, whereas those provisions obviously do not come into effect at all in cases u/s 18(1) of the Act. In the present case, however, the difficulty is avoided if the view I have taken above is correct.

I may be permitted to say however that it is anomalous if the law is that an application filed in the trial Court on, say, April 1, 1950, by a tenant guilty of the defaults referred to in the proviso to sec. 14(3) would succeed, whereas if the same tenant on the same day filed an appeal (there is nothing to prevent a tenant taking both courses of action) the result would be that in the appeal he would fail. The result is that this Rule is made absolute and the order of the learned trial Judge is restored. I make no order as to costs.