Rohini Kumar Roy vs Ragho Saran

Renupada Mukherjee, J.—This appeal has arisen out of a suit instituted by the Plaintiffs Appellants for ejectment of the Defendant Respondent from some premises situate in village Shapur within police station Behala in the suburbs of Calcutta after service of notice to quit. Admittedly, the monthly rent payable for the premises was Rs. 20. The allegation of the Plaintiffs landlords was that the tenant Defendant had sublet a portion of the premises and he was also in arrears for a long period beginning from February, 1945. The suit was instituted on February 13, 1948 when the Calcutta Rent Ordinance of 1946 was in operation.

The tenant Defendant denied the subletting and contended that the notice served upon him was not valid and sufficient and he was not a defaulter. The defence of the Defendant succeeded in the trial court on material points and so the claim of the Plaintiffs landlords for khas possession was dismissed. As a portion of the arrears of rent was deposited after the institution of the suit the Plaintiffs were awarded a partial decree for costs. The trial court, however, held that a valid notice to quit had been served on the Defendant.

An appeal was preferred by the Plaintiffs landlords but the appeal was also dismissed making the dismissal conditional to payment by the tenant a certain sum of money by way of arrears of rent and interest on arrears and costs of the trial court. It was ordered by the lower appellate court that if these amounts were not deposited in the lower appellate court within 15 days from the date of the order, then the claim of the Plaintiffs for ejectment would stand decreed. It is an admitted fact that the above mentioned amounts were deposited within the time allowed by the lower appellate court.

Mr. Janah appearing on behalf of the Plaintiffs Appellants submitted one principal point for my consideration. He argued that the Calcutta Rent Ordinance of 1946 was in operation at the material time, namely, at the date of the institution of the suit on February 13, 1948 and, therefore, the suit must be governed by the provisions of that Ordinance and not as held by the lower appellate court, by the provisions of the West Bengal Premises Rent Control Act of 1948 or the West Bengal Premises Rent Control Act of 1960, which respectively came into operation when the suit was pending in the trial court and when the appeal was pending in the lower appellate court. I may just mention here that the suit was disposed of by the trial court on April 18, 1949, and the appeal was disposed of by the lower appellate court on June 23, 1950. The Rent Control Act of 1948 came into operation on December 1, 1948, and the Rent Control Act of 1950 come into operation on March 31, 1950. The lower appellate court has held that the Calcutta Rent Ordinance of 1946 having been repealed by the West Bengal Premises Rent Control Act of 1948 the tenant Defendant is entitled to get the benefit of the provisions of the Rent Control Act of 1948, as also of the Rent Control Act of 1950 which came into operation during the pendency of the appeal in the lower appellate court.

Mr. Janah, contended on behalf of the Plaintiffs Appellants that the lower appellate court committed an error in law in allowing the tenant Respondent to avail himself of the benefit of the two later Rent Control Acts of 1948 and 1950. There is no dispute that the Ordinance of 1946 was repealed by the Rent Control Act of 1948. In holding that the provisions of the Ordinance were superseded by the Rent Control Act of 1948 where they were inconsistent with each other, the lower appellate court relied on Section 45(2) of the Rent Control Act of 1948. That Sub-section runs in the following terms:

Any rules, orders and appointments made or deemed to have been made or anything done or any action taken or any proceedings commenced or deemed to have been done, taken or commenced under any of the provisions of ilia said Ordinance shall continue in force in so far as they are consistent with the provisions of this Act and shall be deemed to have been, made, done, taken or commenced under the corresponding provisions of this Act.

Mr. Janah contended that this interpretation of Sub-section (2) of Section 45 of the Rent Control Act of 1948 made by the lower appellate court is erroneous. In support of his argument Mr. Janah relied on the case Monomohan Moitra v. Gobinda Das Choudhury (1950) 55 C.W.N. 6. In that case a suit was instituted by the landlord for ejectment of a tenant from some premises when the Calcutta House Rent Control Order of 1943 was in operation. "When the suit came up for trial the Calcutta House Rent Control Order had been replaced by the Calcutta Rent Ordinance of 1946. The learned Subordinate Judge, who tried the suit, held that the Defendant tenant was entitled to pay up all arrears of rent within one month from the commencement of the Ordinance of 1946 and as the Defendant had paid up all arrears within that time he could not be said to be a defaulter under the Rent Ordinance. In this view of the case the learned Subordinate Judge dismissed the suit. On appeal by the Plaintiff landlord the learned Additional District Judge reversed that decision and remanded the case for fresh trial on the footing that the rights of the parties were to be governed not by the Calcutta Rent Ordinance of 1946 but by the Calcutta House Rent Control Order, which was in force at the date of the institution of the suit. The learned Judges, who heard the second appeal in the High Court, confirmed the order of the lower appellate court and held that there was nothing in the Calcutta Rent Ordinance of 1946 or in the West Bengal Premises Rent Control Act of 1948 which makes its provisions applicable to pending actions. This opinion of the learned judges was given on an interpretation of various sections of the above mentioned Ordinance and Act. I may refer to Section 26 of the Ordinance of 1946 which bears a close resemblance to Section 45(2) of the Sent Control Act of 1948. Section 26 of the Ordinance runs in the following terms:

Any proceedings commenced under any provision of the Calcutta House Rent Control Order 1943, or of the Bengal House Rent Control Order, 1942, or of the Bengal Hotels and Lodging House Control Order, 1942, shall, on the said orders ceasing to be in operation continued and be, as far as may be. deemed to have been commenced under the corresponding provisions of this Ordinance and any appointment made under any of the said orders shall for the purposes of the said proceedings be deemed to have been made under this Ordinance as if this Ordinance was m operation when the said proceedings were commenced or such appointment was made.

The learned Judges, who decided the case mentioned above, held on an interpretation of Section 26 of the Ordinance of 1946 that a suit for ejectment against a tenant cannot be said to be a proceedings under the Calcutta House Rent Control Order but a suit under the general law. They, therefore, held that Section 26 of the Ordinance had no application to the facts of the case before them.

In the present case the applicability or otherwise of the Rent Control Act of 1948 to the suit with which we are dealing depends upon the interpretation of Section 45(2) of the same Act. If, as has been decided by their Lordships in the case of Monomohan Moitra v. Gohinda Das Choudhury (1950) 55 C.W.N. 6. (supra), a suit for ejectment should not be treated as a proceeding mentioned in Section 26 of the Ordinance, there is no reason why the word "proceeding" in Section 45(5) of the Rent Control, Act of 1948 should be given a wider connotation or meaning. A close reading of the whole of Section 45 of the Rent Control Act of 1948 would show that the provisions of the Act of 1948 were given a retrospective operation only in respect of those matters which were special matters within the scope of the Ordinance of 1946 or the Act of 1948. It is not permissible to extend them to suits for ejectment instituted under the general law. following, therefore, the decision in Monomohan Moitra''s case 1 hold that the lower appellate court committed an error of law in holding that the Ordinance of 1946 was abrogated by the Rent Control Act of 1948 to such an extent that suits instituted during the life time of the Ordinance would be governed by the Rent Control Act of 1948 after that Act came into force. In my opinion the present suit would be governed by the provisions of the Ordinance of 1946 and by no other provision of any subsequent Rent Act.

Once it is held that the present suit would be governed entirely by the Ordinance of 1946, there is no escape from the conclusion that the judgments and decrees passed by the courts below are not correct. The suit for ejectment was instituted by the Appellants on two grounds, the first ground being that contrary to the provisions of Clause (B) of Sub-section (1) of Section 12 of the Ordinance the tenant had sublet a part of the premises without the consent of the landlords and the second ground being that the tenant having been a defaulter at the date of the institution of the suit he was not entitled to any protection under the Ordinance as provided in Sub-section (2) of Section 12. It is not disputed that in this particular case their the tenant Respondent had sublet one of the rooms to a sub-tenant, neither is it disputed that the tenant was heavily in arrears at the date of the institution of the suit. The tenant had, therefore, disentitled himself from protection against eviction on both these grounds. At the date of the institution of the suit he was liable to be evicted on both the above grounds. A question may arise whether the life of the Calcutta Rent Ordinance of 1946 having become extinct at the date of the trial of the suit, the grounds for eviction had also automatically ceased to exist. Such a question incidentally come up for the consideration of this Court in the Special Bench case of Tank Chandra Banerjee v. Ratan Lal Ghosal (1956) 61 C.W.N. 263. The following observations quoted from the judgment of Chakravartti, C.J. are pertinent:

The temporary Act will then have expired under its own terms and the position in regard to rights and liabilities, accrued and incurred under it before its repeal and in regard to proceedings under the Act respecting there, whether pending or intended, will then be as in the ease of an expired temporary statute. Whether or not such rights and liabilities can still be claimed and enforced and whether proceedings under the Act in regard to them can still be instituted or continued, will depend on the general incidents of temporary statutes and the construction of the particular Act.

Apparently there was no necessity to decide this point in that case, but it was observed by the learned Chief Justice that whether a suit instituted during the regime of a temporary Act would abate on the cessation of the Act, would depend upon the general incidents of temporary statutes and the construction of the particular Act. In the present case the suit was instituted when the Rent Ordinance of 1946 was in operation. It has already been observed that according to the terms of that Ordinance the Plaintiffs Appellants were entitled to get a decree against the Defendant Respondent on the ground of subletting and also on the ground of default made by the tenant in payment of rent. The suit was instituted under the general law for eviction of the tenant. The tenant enjoyed some limited protection against eviction furnished by the Ordinance. It would be a strange proposition of law to say that with the cessation of the Ordinance the suit of the Plaintiffs Appellants became a nullity. At the utmost it can be said that the Ordinance was not before the court when the suit was tried by the trial court. That fact would not, however, be in any way advantageous to the tenant, because with the cessation of the Ordinance the protections enjoyed by the tenant under it were gone. The tenant in this particular case could only derive. protection from eviction if the Rent Control Act of 1948 or 1950 operated retrospectively. I have already held that these Acts had no retrospective operation. That being the case and the rights of the parties being governed by the Rent Ordinance of 1946 and by no other subsequent Rent Control Act, I am of opinion that the courts below committed an error in law in holding that the Defendant Respondent is not liable to be evicted. It is true that Clause (6) of Sub-section (1) of Section 12 of the Rent Control Act of 1948 allows a tenant to pay up his arrears within one month after the date of the commencement of the act of 1948 in order to gain protection from eviction. But in this particular case the arrears were not paid within that period, as has been noticed by the lower appellate court. Mr. Biswas argued on behalf of the Respondent that the delay in depositing the arrears with the Rent Controller was due to the fact that the Plaintiffs had refused to accept the money. There is, however, no evidence of this alleged refusal by the Plaintiffs.

The lower appellate court has further applied the provisions of Section 18(5) of the Rent Control Act of 1950 for the purpose of dismissing the claim of the Appellants for eviction of the Respondent. In my opinion that provision of law does not apply to the facts of the present case, inasmuch as the decree which can be passed in the present case is not on the ground of ipso face determination of Respondent''s tenancy but on the ground of subletting and also on the ground that the Respondent was a defaulter, both the grounds having disentitled the Respondent from claiming any protection against eviction.

Mr. Biswas appearing on behalf of the Respondent raised a further contention that during the pendency of this appeal in this Court the Appellants served a fresh notice to quit upon his client which would show that the rights claimed under the present suit have been waived. The Appellants have filed a counter affidavit from which I am satisfied that under that notice eviction was claimed completely on different grounds. The Appellants, therefore, never waived their rights under the present suit.

From the foregoing observations it would appear that the lower appellate court committed an error in law in refusing to pass a decree for eviction against the Respondent. The appeal, is therefore, allowed and the judgments and decrees of the courts below are hereby set aside. A decree for eviction is passed in favour of the Plaintiffs Appellants and against the Defendant Respondent. The Respondent must vacate the disputed premises within four months from this date.

The Appellants will get their costs throughout from the Respondent.

Leave is asked for on behalf of the Respondent to file an appeal under Clause 15 of the Letters Patent but refused.