Hari Prosanna Dutta vs Hiralal Surendra Kumar

Das, J.—This is an appeal by the Plaintiffs in a suit for ejectment.

The Defendants were tenants of certain premises situated in ainthia in the district of Birbhum under a lease for a term of one year, namely, from Agrahayan 1350 B.S. to Kartick 1351 B.S. On the expiration of the term of the lease the land lord did not accept rent and there was no holding over by the tenants of the said premises. The tenants, therefore, became trespassers in the eye of law. On that footing on November 13, 1945, the Plaintiffs instituted a suit for ejectment but in the mean time the West Bengal Rent Control Order, 1942, had come into force and permission of the controller had become necessary for the institution of the suit. Such permission was obtained by the Plaintiffs. The trial court was of opinion that the permission so obtained was not valid and on this ground dismissed the Plaintiffs'' suit. Against the judgment of the trial court the Plaintiffs took an appeal to the lower appellate court. The lower appellate court was of a contrary opinion and held that the permission was validly obtained. In this view it set aside the judgment of the trial court and remanded the suit to the trial court for the purpose of finding out whether, in fact, the Plaintiffs required the premises bona fide for their own use and occupation. An issue was framed for this purpose. When the matter went back the trial court was of opinion that as the West Bengal Rent Control Order had expired by lapse of time the bona fide requirement provided therein was no longer necessary to be proved by the Plaintiffs. It held, however, that such requirement had been established. In this view it decreed the Plaintiffs'' suit. The Defendants took an appeal to the lower appellate court. The lower appellate court by its judgment dated March 11, 1950, differed from the view of the trial court on the question of the existence or otherwise of bona fide requirement on the part of the Plaintiffs. The lower appellate court also held that in view of the terms of the order of remand it was not open to the Plaintiffs to assert that the life of the West Bengal Rent Control Order had run out and that as such bona fide requirement need not be proved by the landlord. In this view the lower appellate court allowed the appeal and dismissed the Plaintiffs'' suit. The Plaintiffs have accordingly appealed to this Court.

Mr. Mukherjee, appearing on behalf of the Plaintiff-Appellants, has first contended that the view taken by the lower appellate court that the order of remand made by the lower appellate court on the previous occasion concluded the matter, is not correct, inasmuch as no appeal lay against the order of remand made by the lower appellate court on the former occasion. This contention seems to be correct. The order for remand was an anomalous one. The lower appellate court directed the framing of an issue and also directed that the whole suit be heard. Such an anomalous order of the lower appellate court was not appealable. Section 105 of the CPC did not, therefore, preclude the Plaintiffs from agitating the question whether the bona fide requirement as provided for in Section 10(2), proviso (c), of the West Bengal Rent Control Order was established or not. The first contention of Mr. Mukherjee must, therefore, succeed.

Mr. Mukherjee has next contended that the finding of the lower appellate court as regards the existence or otherwise of bona fide requirement was not a proper finding. We have perused the judgments of the courts below. In second appeals it is difficult for us to hold that the view taken by the lower appellate court on this question of fact was not a proper finding. The lower appellate court has fully gone into the matter and in coming to its own finding it has not transgressed any provisions of law or the requirements of the order. In this view, this finding cannot be assailed in second appeal. The view taken by the lower appellate court on this point must therefore be affirmed.

Mr. Mukherjee has also contended that the West Bengal Rent Control Order was a temporary legislation and as its life has run out, the requirements provided for in Section 10(i), proviso (c) of the Rent Control Order need not be proved by the landlord after the lapse of the Order itself. In support of this contention Mr. Mukherjee has referred us to the following passage from Craies on Statute Law, 4th ed. p. 347:

Unless it contains some special provisions to the contrary, after a temporary statute has expired, no proceedings can be taken upon it and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.

The passage quoted makes an exception where the temporary statute contains an express provision to the contrary. The question is whether it can be said that the West Bengal Premises Rent Control Order contains such an express provision. The West Bengal Premises Rent Control Order was promulgated by the Governor by virtue of the powers conferred on him by Rule 81(2)(bb) of the Defence of India Rules. These Rules were framed u/s 2 of the Defence of India Act. The Defence of India Act was enacted u/s 102 of the Government of India Act, which empowered the central legislature to legislate on provincial subjects after proclamation of an emergency. Section 102(4) of the Government of India Act as amended by Section 5 of India (Central Government and Legislature) Act, 1946, (9 and 10 Geo. VI, Chapter 39), provided that such an emergency legislation by the Central Government on provincial subject shall, to the extent of the incompetency, cease to have effect on expiry of six months after the cesser of the proclamation of emergency except as respects things done or omitted to be done before the expiration of the said period. Thus the Act limiting the life of the Order itself contained a contrary provision just quoted. The last quoted expression was construed by the Federal Court in the case of J.K. Gas Plant Manufacturing Company (Rampur) Ltd. and Ors. v. King Emperor (1947) 9 F.C.R. 142. That case related to the validity of a prosecution started under Indian Iron and Steel Control (Control of Production and Distribution) Order. 1941. It was held that the prosecution started before September 30, 1946, did not lapse after that date but continued thereafter. On the above principle the statutory requirements contained in the West Bengal House Rent Control Order that the Plaintiffs must prove bona fide requirement of the premises must be held to have remained in operation even after September 30, 1946. This view is supported by a Bench of this Court in the case of Dawoo Dayal Kothari v. Giridhari Laha (1949) 54 C.W.N. 12, which related to the continuance of the proceedings u/s 9(6) of the Calcutta House Rent Control Order, 1945, as amended in 1946. Mr. Mukherjee referred us to a Bench decision of this Court in the case of Suresh Chandra Chatterjee v. Kanti Chandra Bhattacharjee (1928) 47 C.L.J. 530. That case, however, related to a proceeding under the Calcutta Rent Act of 1920 which was passed by the State legislature not by virtue of the provisions contained in Section 102(4) of the Government of India Act quoted already. In that case the principle enunciated in Craies on Statute Law quoted above was clearly applicable, there being no express provisions to the contrary in the Act itself. Mr. Mukherjee also drew our attention to the case of Ashutosh Bhattacharjee v. Mahendra Nath Roy (1950) 54 C. W. N. 813. This was a decision of Mookerjee, J., sitting singly. In that case the suit was filed on May 10, 1944, at a time when no permission under the Calcutta House Rent Control Order, 1943, was necessary for the institution of a suit for ejectment by the landlord. Provision for such permission was first made in the Calcutta House Rent Control Order, 1943, which was promulgated on May 19, 1944, a few days after the institution of the suit. The provision for permission was later on repealed and the Calcutta Rent Ordinance was passed which came into force on October 1, 1946. In this Court in Second Appeal No. 207 of 1947 it was contended that as the Calcutta House Rent Control Order has been repealed, the provision contained therein was no longer available to the Defendant. Mr. Justice Mookerjee was of opinion that as the Act had run out, provision for permission had lapsed. As I have already observed, at the date when the suit was filed the permission required by the Calcutta House Rent Control Order had not come into operation. In those circumstances the learned Judge was of opinion that as the relevant provision which had come into existence after the suit was filed, had itself lapsed, the requirement of such a permission became unnecessary. This view might be supported by the principle that a suit must be determined by the law which was in force at the time of the institution of the suit (see Monomohan Moitra v. Gobinda Das Choudhury (1950) 55 C.W.N. 6). This case, therefore, does not assist the Appellants in the present case. In my opinion, the view taken by the lower appellate court is correct and must be affirmed.

The result, therefore, is that this appeal must fail and it is dismissed with costs.

Debabrata Mookerjee, J.

I agree.