Chanchala Bala Dasi vs Nani Bala Dasi

Das Gupta, J.—The present suit for ejectment was instituted on October 20, 1946. On that date, the Bengal House Rent Control Order, 1942, was in force. It continued to be in force till September 30, 1946.

Section 10 of that Order provided for protection of a tenant from ejectment "so long as the tenant pays rent to the full extent "allowable by this Order and performs the conditions of the "tenancy." It was further provided that this protection will be refused to the tenant if (a) he does any act contrary to the provisions of Clause (m), Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882, or (b) he is guilty of conduct which is a nuisance or an annoyance to adjoining or neighbouring occupiers, or (to) where the premises are bona fide required by the landlord for certain purposes.

To get round the provision of this protection the Plaintiff landlord pleaded that the tenant had not paid his rent in full. If the suit had come up for trial before September 30, 1946, the Plaintiff could not succeed unless he succeeded in proving this allegation of default on the part of the tenant. The learned Munsif held that this plea had not been proved.

The suit, however, did not come up for trial during the time the Bengal House Rent Control Order was in force (hereinafter referred to as the Order). The Calcutta Rent Ordinance, 1946 (which will hereinafter referred to as the Ordinance), which came into force on October 1, 1946, was made applicable to the area where the premises in question were situate. Section 12 of this Ordinance contains a provision similar to that in e. 10 of the Bengal House Rent Control Order as regards protection of tenants against ejectment. But in addition to the three cases in which the tenant would lose this right of protection under the Bengal House Rent Control Order Section 12 of the Calcutta Rent Ordinance further provided that the tenant would lose this right of protection from ejectment.

Where in the absence of any contract to the contrary the tenant has, without the consent in writing of the landlord, sublet the premises in whole or in part.

Some time after the Calcutta Rent Ordinance, 1946, became law, the Plaintiff landlord amended his plaint by adding an averment that the tenant had, without the consent in writing of the landlord, sub-let the premises in whole or in part. The learned Munsiff, on interpretation of a written agreement between the parties, concluded that there was a provision therein which allowed the tenant to sub-let the premises without consent in writing of the landlord. He has also stated

The Plaintiff is not entitled to get a decree for ejectment on the ground of subletting as it was made before the Rent Ordinance came into force.

and dismissed the suit.

On appeal the learned Subordinate Judge held that the agreement between the parties did not provide for the tenant sub-letting the premises without the consent in writing of the landlord. He also held on the authority of the decisions of this Court in the cases of Atul Krishna Basu v. Ganesh Chandra Dhar (1948) 52 C.W.N. 379 and Gurupada Haldar, Jiban Krishna Das v. Arjun Das Goenka (1948) 52 C.W.N. 604, that though the sub-letting took place before the Ordinance came into force, the tenant was deprived, by Clause (b) of the proviso to Section 12(1) of the Ordinance of the protection against ejectment.

It is contended before us that on the authority of the decisions of this Court in the cases of Monomohan Maitra v. Gobinda Das Chowdhury (1950) 55 C.W.N. 6 and Joy Kumar Sarkar Vs. S.K. Chaudhuri, we are bound to hold that the provisions of the Order apply in this case and the provisions of the Ordinance do not apply. In Monomohan Maitra''s case (Supra) the suit for ejectment was instituted when the Order was in force but was brought to trial after the Order had been replaced by the Ordinance: the court repelled the argument that the rights of the parties could not be determined according to the Order and must be determined by the Ordinance and held that there was nothing in the Ordinance to make its provisions applicable to pending actions, either expressly or by necessary implication and that the ordinary rule of law that a suit is to be tried by the law as it stood on the date of the institution of the suit, should prevail. As regards Section 26 of the Ordinance, which provides that proceedings commenced under the Order shall, on the Order ceasing to be in operation, be deemed to have been commenced under the corresponding provision of the Ordinance, the Court pointed out that a suit for ejectment was not a proceeding under the Order and so Section 26 of the Ordinance had no application.

In the case of Joy Kumar Sarkar v. S.K. Chaudhuri (Supra) which was a Letters Patent Appeal, Dass and Lahiri, JJ., proceeded on the assumption that Monomohan Maitra''s case (Supra) was correctly decided. It appears from their Lordships'' judgment that while the advocate for the Appellant relied strongly on that authority the advocate for the Respondent did not dispute the correctness of the decision.

Mr. Sen does not deny that there is nothing in the Ordinance which makes its provisions applicable to pending actions. His main contention is that the provisions of the Order are not applicable to the suit as it was "dead" at the date of the trial of the suit and as the "death" was due to expiry, and not to "repeal", the provisions of the General Clauses Act under which pending action are to be governed by the repealed Act have no application. He points out that this aspect of the matter was not considered by the Court in Monomohan Maitra''s case (Supra).

The difference in the effect on pending actions of statutes which are repealed and of temporary statutes which expire has been pointed out in many cases. When a temporary statute expires its provisions cease to have any effect whatsoever on pending proceedings unless there is any special provision anywhere to the contrary. This challenge to the applicability of the provisions of the Order to the present suit would have succeeded, in my opinion, but for the provisions in Section 102(4) of the Government of India Act, 1935. The provisions of Sub-section (4) of Section 102 are in these words:

A law made by the Dominion Legislature which that Legislature would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.

The Defence of India Act, 1939, was made under the first Sub-section of Section 102 of the Government of India Act. But for the issue of Proclamation of Emergency the Dominion Legislature would have been incompetent to make the Defence of India Act in so far as it provided in its second section that the Central Government may by notification in the official gazette make such rules as appeared to it to be necessary and expedient for maintaining supplies and services essential to the life of the community. The effect of Sub-section (4) of Section 102 of the Government of India Act was that the second section of the Defence of India Act remained in force even after the expiration of a period of six months after the Proclamation had ceased to operate as regards things done or omitted to be done before the expiration of the said period. The necessary consequence was that the Defence of India Rules made under that section also remained in force "as regards things done or omitted to be done" and that the Order made under Rule 81(2)(bb) of those Rules also remained in force as respect things done or omitted to be done before the expiry of the period of six months after the Proclamation had ceased to operate.

In my judgment, the filing of the suit for ejectment and the filing of the written statement in that suit should be considered to be "things" done within the meaning of Section 102(4). I am fortified in this view by the decision of this Court in the case of Dawoo Doyal Kothari Vs. Giridhari Laha, , that the language of Section 102(4) of the Government of India Act was "wide enough "to authorise the continuation of the proceedings for setting "aside the consent decree started by the application" on July 12, 1946, beyond the date on. which the Order expired. My conclusion, therefore, is that the Bengal House Rent Control Order was applicable to the suit and that consequently the tenant was protected from ejectment, unless that protection could be refused to him by the special circumstances mentioned in Section 10 of the Order. As I have already stated, the learned Munsif has held that the Plaintiff has not been able to prove his case that the tenant had committed default in the payment of rent. There was thus nothing that would justify a court in refusing the tenant the protection u/s 10. The act of sub-letting is not a ground on which this protection could be refused under the Bengal House Rent Control Order.

I would, therefore, allow this appeal, set aside the order passed by the court of appeal below and restore the order passed by the learned Munsif.

Parties will bear their own costs throughout.

Debabrata Mookerjee, J.

I agree.