Sukumar Sen vs Amrita Lal Mukherjee

P.N. Mookerjee, J.—In this appeal by the tenant-Defendant some aspects of the statutory provisions contained inter alia in Section 12(3) of the Rent Control Act of 1948 and Sections 14(5) and 18(5) of the Rent Control Act of 1950 fall to be considered.

The material facts are now beyond dispute and they are as follows:

The Appellant was a monthly tenant under the Respondent landlord in respect of a portion of premises No. 3B, Nakuleswar Bhattachariya Lane, at a rent of Rs. 30 per month. The tenancy was according to the English calendar and the Appellant failed to pay or deposit in accordance with the provisions of the prevailing Rent Control legislation, the rent at least from April, 1949, whereupon, on three months'' consecutive default, namely, from April to June, 1949, his tenancy became ipso facto determined under the Rent Control Act of 1948 and the Respondent brought the present suit for ejectment, arrears of rent and mesne profits on August 1, 1949. Various defences, raised to the suit, were negatived by the learned Munsif who eventually decreed the suit on May 23, 1950. In the meantime, the Rent Control Act of 1950 had come into operation on March 31, 1950 and, as the suit was admittedly pending on that date, the learned Munsif on the Defendant''s application, gave him permission (vide order No. 11, dated March 31, 1950) to make the necessary deposit u/s 18(5) of the Act to avail himself of the benefit of the said statute and obtain relief against ejectment. The deposit, however, was not made and, in the result, the decree was passed as aforesaid.

There can be no doubt that the decree was rightly made by the learned Munsif. The suit was filed on August 1, 1949, when the Rent Control Act of 1948 was in force. The case would, therefore, be governed by that Act except so far as the passing of the Act of 1950 during its pendency affected it in law. It cannot be disputed that, at the date of the suit, the Appellant had made the requisite default in the payment of rents of three consecutive months, namely, April, May and June, 1949, and his tenancy had thus ipso facto determined u/s 12(3) of the said Act of 1948. It is true, that the Respondent served no proper or sufficient notice to quit upon the Appellant but, in a case of ipso facto determination of the tenancy under the statute of 1948, no such notice is plainly necessary. The tenancy terminates by reason of the statutory provision alone and, once the requisite default in the payment of three consecutive months'' rent in respect of the rented premises is committed, the interest of the tenant in such premises is "ipso facto determined" and he is to be no longer "deemed to be a tenant". This is expressly provided in the statute itself and no clearer words would be necessary to indicate the immediate determination of the tenancy. As soon, therefore, as the default was made the Appellant became a trespasser and no notice whatsoever was at all necessary in the matter. There was nothing, except possibly Section 18(5), in the Rent Control Act of 1950 which had come into force on March 31, 1950, during the pendency of the suit before the learned Munsif, to affect this position or to revive or restore the Appellant''s tenancy. Even with regard to the said Section 18(5) of the original Act of 1950, this Court held in the two Special Bench cases of Sm. Nandarani Dassi v. Satya Narain Harit ILR [1951] 2 Cal. 250, and S.B. Trading Co., Ltd. v. Satyendra Chandra Sen ILR [1951] 2 Cal. 322, that the said section had no application to cases of ipso facto determination of tenancies u/s 12(3) of the 1948 Act. The position, however, was altered by the later legislative amendment of the Rent Control Act, namely, the Amending Act LXII of 1950, where by the combined operations of Sections 2, 4 and 5, the provisions of Section 18(5) were made applicable to such cases with full retrospective effect, that is, from the commencement of the original Act of 1950. The position in the present case thus was that the Appellant was liable to be ejected subject to the relief, if any, available to him u/s 18(5) of the Rent Control Act of 1950. That relief was offered to him by the learned Munsif but he failed to avail himself of the opportunity and the ejectment decree rightly followed.

Before the trial Court there was also a defence plea of waiver on the part of the Plaintiff Respondent of his right to eject the Defendant. This was based on the insufficient notice to quit (ex. 1) which was served on the Defendant, claiming rent up to July 15, 1949, and the argument was that if the tenancy had terminated u/s 12(3) of the Rent Control Act of 1948, it must have so terminated on the expiry of June, 1949, the relevant three consecutive months of default being April, May and June, 1949 and that, accordingly, demand of rent for the next fifteen days of July, 1949, amounted to a waiver of the statutory forfeiture. This argument was rejected by the learned Munsif and, in our opinion, rightly, as, in this case, there being no contract to the contrary, the rent for June, 1949, could have been paid under the relevant statute on or before the 15th of the following month. The final default, requisite u/s 12(3) of the 1948 Act, therefore, occurred only on the expiry of July 15, 1949, and not before, and, in law, therefore, the tenancy subsisted up to July 15, 1949. The claim for rent up to this stage was, therefore, rightly made by the Plaintiff-Respondent and no question of waiver at all arises and the learned Munsif committed no error in rejecting the Defendant''s plea in that behalf.

In his appeal before the learned Subordinate Judge, the Defendant-Appellant reiterated his pleas, based on the questions of notice and waiver, but the same were rejected. For reasons already given, that decision also must be held to be correct.

The Defendant-Appellant also applied again before the learned Subordinate Judge for relief u/s 18(5) of the Rent Control Act of 1950. This application was made under the new amended Section 18(5), the Amending Act LXII of 1950 having come into force in the meantime. The learned Judge, however, held that, in view of what had already happened before the learned Munsif, namely, that the Appellant had been afforded full opportunity to avoid ejectment by making the necessary deposit but had failed to avail himself of the same, he was not entitled to apply again for the said relief. In our opinion, the learned Subordinate Judge took the correct view of the law in the circumstances of this case. The amended statutory provision was given, as we have already said, full retrospective effect, that is, from the commencement of the original Act of 1950 when the suit was pending before the learned Munsif. The latter''s order, therefore, allowing the Defendant to make the necessary deposit to avoid ejectment was validly passed but this opportunity, properly granted, was not availed of by the Defendant. The statute, so it seems to us, contemplates the affording of one opportunity u/s 18(5), and, if that is allowed to pass, the defaulting tenant is not entitled to a second indulgence. The Defendant-Appellant''s application u/s 18(5) of the Rent Control Act was, therefore, rightly rejected by the learned Subordinate Judge.

The objections, which we have discussed above, to the Plaintiff''s claim for ejectment comprise all the points which were urged before us by the learned advocate for the Appellant. We have held above that there is no substance in any of the said objections and we have already given our reasons for that view. This appeal must, therefore, fail.

Before concluding we ought to mention that, in this case, there was an order by this Court u/s 14(5) of the Rent Control Act, 1950, directing the Appellant to make certain deposits at certain times and providing further that, in case of any default on his part, his defence to the Plaintiff''s claim for ejectment would "be struck out" and he would "be placed in the "same position as if he had not defended the claim to ejectment "in the trial Court". On the strength of this order the Respondent raised a preliminary objection at the hearing of this appeal,-and he had also filed previously an application for the purpose on April 4, 1952,-that, as, admittedly, the Appellant had committed defaults in the carrying out of that order, no hearing of the appeal was either necessary or possible and it had only to be dismissed. The Appellant did not deny the defaults but it was contended by his learned advocate that the effect of the order was only this that he would have to argue the appeal on the footing that the trial Court''s decree was ex parte and he would not be entitled to refer to or rely upon either his client''s written statement or the evidence adduced by him. He, however, urged that in spite of his client''s inability or failure to carry out the order of this Court, passed u/s 14(5) of the Rent Control Act of 1950, he was not absolutely debarred from pressing his appeal or urging the dismissal of the Plaintiff''s suit on pure points of law, arising on admitted facts or on the Plaintiff''s own case or materials, and the learned advocate relied upon the decision of Sarkar, J., in the case of S.B. Trading Co., Ltd. v. Olympia Trading Corporation, Ltd. (1951) 88 C.L.J. 298 in support of the position taken up by him. It appeared to us that the terms of the order of this Court u/s 14(5) were not very clear so as to point necessarily to a dismissal of the appeal, as urged by Mr. Dutta for the Respondent. We, accordingly, decided to hear the Appellant''s advocate as amicus curiae, to avoid prejudice or injustice without disturbing the order of this Court and we have heard him fully on all his possible contentions. We are, however, as stated above, unable to accept any of the said contentions for reasons already given.

In the result, therefore, this appeal must fail and it is dismissed with costs.

What we have said above also disposes of the Respondent''s connected application filed on April 4, 1952, to which reference has been made by us in the course of this judgment and which was ordered by this Court to come up for hearing along with this appeal (vide order, dated April 23, 1952) and no further order is necessary on that application.

Sen, J.

I agree.