Mohit Kumar Bose vs Jagat Mohan Dutta

P.N. Mookerjee, J.—This second appeal is directed against a concurrent decree for ejectment. Both the courts below have discussed the plaintiff''s claim for ejectment on account of the tenant''s default in payment of rent for over six consecutive months, namely, from November, 1948 to June 1949. The suit was brought on 10th November, 1949, and, in the plaint, two grounds were given for avoiding the bar of the Rent Control Act of 1948 (which was then in force), namely, bona fide requirement of the landlord for his own use and occupation u/s 11 (i) (f) and ipso facto determination of the tenancy u/s 12(3).

Eventually, however, the ground of bonafide requirement was negatived by the trial Court and it does not appear to have been pursued thereafter. I may also add that on the materials on record, that ground cannot be said to have been substantiated.

Ipso fact determination of the tenancy was found by the trial Court and that finding has been affirmed by the lower Appellate Court and, although, during the pendency of the suit in the trial Court, the Rent Control Act of 1950 (including the Amending Act LXII of 1950) came into force, the tenant defendant was held disentitled to the benefits of the new section 18(5) of that Act in view of the proviso to section 14(3) on account of default in the payment of rent from November, 1948, to June 1949 and a decree for ejectment was ultimately passed by both the Courts below. The propriety of the concurrent decision is; challenged in this appeal which the tenant defendant filed on 19th May, 1953.

The plaintiff-landlord''s allegation of default in the payment of rent was denied by the tenant-defendant who relied in this connection on certain payment, alleged to have been made by him on account of the occupier''s share of rates in respect of the disputed premises, and he further claimed reimbursement in respect of certain expenses, alleged to have been incurred by him for repairs. This latter item, however, has not been accepted by any of the Courts below and I have no reason to differ from them on this point. On the other point too, namely, Municipal rates, the occupier''s share being primarily payable by the tenant or the occupier and there being no agreement to the contrary, alleged or proved, the tenant''s liability must prevail.

Before the lower appellate Court, a point was taken on behalf of the defendant-appellant that the payments, made by him on account of Municipal rates, actually exceeded the occupier''s share, payable by him, and he should get credit for this excess payment and should be given relief on the basis thereof. There was, however, no such allegation in the written statement and, on the record also, there is no evidence in support of this new case. In these circumstances, the lower appellate Court rejected this plea of the tenant-appellant and, on the materials before us, I am unable to hold that this new plea should be entertained or can or ought to be given effect to. I would, accordingly, affirm also this part of the decision of the learned Subordinate Judge with the result that the tenant''s denial of default in the payment of rent from November, 1948, to June 1949 must fail. On the above findings, the suit tenancy must be held to have been ipso facto determined u/s 12(3) of the Rent Control Act of 1948 and the only question that remains is whether the tenant-appellant is entitled to protection u/s 18(5) of the Rent Control Act of 1950. In view of the Special Bench division of this Court in the cases of Sm. Nandorani Dassi Vs. Satya Narain Harit, and S.B. Trading Co. v. Satyendra Chandra Sen (2) ( 54 C.W.N. 756) such protection cannot be claimed under the original section 18(5) but the section has since been amended and there can be no question that the defendant-appellant would come within its amended terms unless he is hit by the proviso to section 14(3). This is clear from the Full Bench Case of Ajit Kumar Roy Vs. Surendra Nath Ghose, which also lays down, inter alia, that, for attracting the proviso to cases u/s 18(5), the relevant defaults must have occurred after the coming into force of the amending Act LXII of 1950 on 30th November, 1950.

In the present case, the defaults which have been relied upon by the two Courts below to deprive the tenant-defendant of the benefit of section 18(5) by invoking the proviso to section 14(3) are defaults of 1948-49. These defaults, however, would not be relevant for this purpose in view of the Full Bench decision cited above, and prima facie the matter requires further consideration in the light of the state of things, prevailing since 30th November, 1950, and, for this purpose, the defaults pending suit--and "suit", in this context, will include "appeals"--would be relevant (vide Ajit Kumar Roy Vs. Surendra Nath Ghose, )]. On this point, however, the necessary materials are not on the record and, accordingly, a remand seems inevitable and the case will have to go back to the trial Court for final disposal in the light of the two decisions, referred to above, and the observations, made in this judgment, upon such further materials as the parties may place before the Court to enable it to come to a proper decision as to their respective rights under the law.

The plaintiff-landlord contests the above position and his learned Advocate, Mr. Murari Mohan Dutt has strenuously urged that, as the present ejectment suit was instituted as a suit of a composite character in which ejectment was sought not merely on, the ground of default in the payment of rent or ipso facto determination of the tenancy u/s 12(3) of the 1948 Act but also on the ground of bona fide requirement for the landlord''s own use and occupation, section 14, or, for the matter of that, section 18(5) of the Rent Control Act of 1950, would have no application. Mr. Dutt has presented his argument with some amount of skill and he has placed particular reliance upon some general observations in the Bench decision of this Court, reported in (5) 57 C.W.N. 300, Moulavi Miah v. Sashanko Mohan Guha, and he has also sought assistance from the Full Bench Case of T.S.R. Sarma Vs. Nagendra Bala Debi, , and the unreported Bench decision in the case of Annapurna Roy v. Sm. Jagmaya Choudhury, (7) (S.A. No. 144 of 1952, decided on 31st March, 1954).

I have considered the above cases as also my decision in Sudhi Ranjan Roy Choudhury v. Hillol Kumar Gupta, (8) (58 C.W.N. 869), in which there occur certain general expressions, tending to support Mr. Dutt''s extreme contention. I am, however, far from satisfied that that contention is correct and ought to be accepted. The general expressions, used in the cases cited, apparently for brevity and convenience, must be read in their appropriate context and should not be extended to cover cases which were not in contemplation at the time and did not then arise for consideration, even remotely, and, as I shall explain in the course of this judgment, none of those cases materially affects the decision of the present question.

On a reading of the statute, it seems to me that the crucial point is the nature of the suit at the time when the question of applying the sections 14 and 18(5) arises for consideration. If, at that time, the suit is of the type, contemplated in section 14(1) or section 18(5), that is "a suit for recovery of possession of any premises from the tenant" in which "the landlord would not get a decree for possession, but for clause (i) of sub-section (1) of section 12" or "a suit for ejectment of a tenant", "in which no decree for ejectment would be passed except on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of sub-section (3) of section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948", the corresponding section [section 14 or section 18(5)] would apply and the tenant would be entitled to get relief u/s 14, provided of course, he is not hit by the proviso to sub-section (3) thereof.

In the present case, the question u/s 18(5) was taken not by the Court at the time of writing out its judgment wherein it was found that the landlord would not be entitled to a decree for ejectment except on the ground of ipso facto determination of the suit tenancy u/s 12(3) of the Rent Control Act of 1948, his plea of bona fide requirement for his own use and occupation not being sustainable on the materials on record. At this material time, therefore, the notion of the suit clearly satisfied the requirement of the relevant section 18(5) of the 1950 Act and that section cannot be refused application upon the ground that, on the plaint as it stood, the suit was of a composite character where ejectment was claimed on the two-fold ground of default or ipso facto determination of the tenancy and bona fide requirement. I would, accordingly, reject the landlord''s extreme argument that section 18(5) cannot apply to this case, merely because there was, in the plaint, the ground of bona fide requirement in addition to the ground of default or ipso facto determination of the tenancy when, at the material time of considering the applicability of the section and the availability of its benefits, the vitiating ground of bona fide requirement has been found to be unsubstantial and liable to rejection by the Court and has thus ceased to be of any moment in the case, so far as the Court is concerned.

As I have already stated above, our attention was drawn, in particular to the decision reported in (5) 57 C.W.N. 300, but I do not think that decision helps the plaintiff-respondent in any manner whatsoever. That was a case u/s 14(4) and the nature of the suit fell to be ascertained long prior to the hearing. The plaint in that case showed that the suit for ejectment had been brought not only on the ground of default but was on the ground of the landlord''s bona fide requirement for his own use and occupation. At the stage, when the question u/s 14(4) was taken up for consideration and the nature of the suit came to be investigated, it was impossible to say that "the landlord would not get a decree for possession except on the ground of default" and, accordingly, in the judgment, delivered by my learned brother (Lahiri, J., agreeing), it was held that the section [section 14 (4)] did not apply and the tenant''s defense against ejectment had been wrongly struck off by the Court below under that section. It may not be proper to distinguish this case merely on the ground that it was a decision under the provision of sec. 14(4) and not under the present section [section 18 (5)] as the nature of the suit contemplated by the two sections [section 14 and section 18(5)] is practically the same, but I find nothing in the said decision which, on principle, militates against my view of the law as expressed on the present occasion. The test of the state of things or the nature of the suit at the material time, when the particular section falls for consideration, would undoubtedly support the decision in the case cited and would not present the least inconsistency with it. This I have not sufficiently explained and I would only add that the decision, (5) ( Maulvi Miah (Maulavi and Co.) Vs. Sashanko Mohan Guha, ) was entirely right. Same remarks apply to the Full Bench case of T.S.R. Sarma Vs. Nagendra Bala Debi, and also to my own decision, reported in (8) 58 C.W.N. 869, None of these decisions presents any real conflict with the view which I am now taking of section 18(5), or with the test, herein laid down, for the application of that section, and I am not prepared to whittle down the scope of this section (which has already suffered devastating mutilation, probably unintentional, at the hands of hasty draftsmen) by limiting it only to cases when, the plaint contains no other ground for ejectment under the Rent Control Law except the ground of ipso facto determination of the tenancy u/s 12(3) of the 1948 Act. Practically the same view was taken by my learned brother (sitting with Lahiri, J.), in the other case, cited by the plaintiff-respondent, namely, the unreported case of Annapurna Roy v. Jagmaya Choudhury, (7) (S.A. No. 144 of 1952, decided on 31st March, 1954), and I respectfully agree with that decision. Between that case and the present, the only difference that strikes the eye is that, in that earlier case, the other ground of subletting was not pressed at the hearing, while, in this instant case, the offending ground of bona fide requirement was correctly found against the plaintiff by the trial Court and was not pursued thereafter. I do not see any material difference between the two cases and I have, therefore, no hesitation in following the same principle and rejecting the landlord''s extreme argument on the scope of section 18 (5).

I deem it my duty to point out again that, in some of the cases cited, and particularly, in my own decision in the case reported in (8) 58 C.W.N. 869, there are certain general expressions which, as I have already said, may lend some support to the landlord''s above contention but, if I may repeat again, all these cases were u/s 14(4) of the Act, where the relevant consideration arose--and that is what usually happens under that section--at a stage when, having regard to the plaint, it was impossible to predicate that the landlord would not get a decree for possession but for clause (i) of the proviso to sub-section (1) of section 12(1) [Vide section 14(1) which defines as held by the Full Bench in (6) 57 C.W.N. 1, the suit relevant for section 14(4) also] and the general expressions, used in these judgments to describe the suit, contemplated in section 14, must be read in that context. The present aspect of the matter did not arise for consideration in any of those cases and it should not be held covered or concluded by any of those general expressions, used in an altogether different context and apparently for brevity and convenience.

I would, accordingly, overrule the Respondent landlord''s objection and hold that section 18(5) would apply to this case and the tenant appellant would be entitled to its benefits unless, of course, he falls within the mischief of the proviso to sub-section (3) of section 14 of the Act. This necessary enquiry will have to be made by the trial Court, to which the case will go back now for that purpose.

We are sending the case back to the trial court for ascertaining whether the tenant-defendant has been guilty of the requisite defaults to disentitle him to the benefits of section 18(5) by virtue of the proviso to section 14 (3) of the Act. We are quite conscious that in the present case, at the date of trial court''s original decree, the tenant-defendant had not committed the necessary defaults and, if the correct decision had been taken on that day, the tenant would have been entitled to the benefits of section 18(5) of the Act of 1950. We think, however, that, in these cases, subsequent events should be taken into consideration and the actual state of things, obtaining at the time, when the order u/s 18(5) is eventually passed, should govern the parties. That would avoid multiplicity of proceedings and would be consistent with the ultimate rights of the parties and would also accord substantially with ultimate justice. It would also relieve the Court of the necessity of passing a decree which would be wholly unrelated to the prevailing state of things and the real rights of the parties, actually obtaining, at the time when it is passed. Logically also, if the other view be accepted, the rights of the parties under sections 14 and 18(5) should, strictly be adjusted to the date of the suit and the date of commencement of the Amending Act LXII of 1950 when the sections were first capable of application in the respective cases and this adjustment will have to be directed, in, at least, the majority of cases, at a time when the situation and the parties'' legal position may have completely changed. That would add unnecessary complications and uncertainties to the working of an Act which has already acquired too much notoriety in this respect and has been productive of far greater mischief--and not unoften injustice too,--than it has been able to suppress, by increasing litigations and aggravating bitterness between landlords and tenants. The course, we have suggested above, is also supported by the earlier Bench decision, reported in (4) 58 C.W.N. 307, and is not opposed to the other decision cited, namely, (7), S.A. No. 144 of 1952, decided on the 31st March, 1954, where, apparently, there were no relevant defaults at the time, when this Court passed its order.

In the above view of the matter, we allow this appeal in part, set aside the decrees of the two Courts below and send the case back to the trial Court to pass appropriate orders and finally dispose of the suit in the light of the observations we have made above. Costs of this appeal will abide the final result. Other costs will be in the discretion of the Court when it finally disposes of the suit. The learned Munsif will take up the case and dispose of it finally as quickly as possible.

Guha, J.

I agree.