1. This appeal is on behalf of the defendant, and it arises out of a suit for ejectment, after service of notice to quit, in which a claim for arrears of rent a3 also for damages on account of subsequent use and occupation was joined. The plaintiff's allegation was that the defendant was occupying the land as a monthly tenant and had failed to vacate it even, after the expiry of the period given to her by the notice to quit.
2. The trial Court decreed the suit in respect of both the claims and made an order for recovery of possession as also for rent as claimed in the suit, together with damages up to the date of the judgment, provided that the deficit court-fees were paid by the plaintiff within ten days. An appeal taken by the defendant to the lower appellate Court was dismissed.
3. Only one point was urged before us in the present second appeal, and it will be sufficient to state the tenant's defence so far as that point is concerned. The suit was brought, on 29th May 1940, and it was on the very next day, viz., 30th May 1940, that the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, (Act 9 [IX] of 1940) came into operation. In accordance with Section 3 of the Act, a plea was taken by the defendant that the suit being one for ejectment of a non-agricultural tenant, it was liable to be stayed. Both the Courts below have overruled this plea on the ground that since the defendant was in arrears with respect to rent, the suit was one 'for ejectment of a non-agricultural tenant on account of the non-payment of rent,' and, as such, excepted from the operation of Section 3. In taking this view, they relied principally upon a decision of Mitter J. in Purnendu Nath v. Narendra Nath : AIR1941Cal302 . It also appears that the attention of the Courts was drawn to a decision of Mukherjea and Biswas JJ. in Kumud Nath Das v. Protap Chandra Muzumdar : AIR1942Cal145 , but the Courts below observed that the observations made in the course of that judgment were of a tentative character and did not definitely overrule the view taken by Mitter J.
4. It was contended by Mr. Mitter who appeared before us on behalf of the appellant that the present suit was not excepted from the operation of Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act. In our opinion, this contention is sound and must prevail. It is undoubtedly true that in Purnendu Nath v. Narendra Nath : AIR1941Cal302 , decided by Mitter J. his Lordship observed that the words 'suit for ejectment on account of the non-payment of rent' in Section 3 of the Act only meant a suit for ejectment of a tenant whose rent was in arrear. He based this view of the section on the ground that as the law stood, non-payment of rent could not be a ground for ejectment, and accordingly the phrase, 'suit for ejectment on account of the non-payment of rent' could only be taken as a phrase of descriptive character. The question, however, was carefully examined in a subsequent decision of Mukherjea and Sen JJ. in Reliance Jute Mills Co., Ltd. v. Dukhi Shah Dhanraj Shah : AIR1942Cal550 , which appears to have been given after the decision of the lower appellate Court in the present case. I The view taken by their Lordships was that the words 'suit or proceeding for ejectment on account of the non-payment of rent' in Section 3 of the Act referred to cases where there was a condition in the lease that on default of payment of rent for a specified period, the tenancy would be forfeited and the landlord would have a right to re-enter. According to this decision, only those suits would be excepted from the operation of Section 3 which answered this description, and the mere fact that the defendant was in arrear in respect of rent, although ejectment might be sought on some other ground, would not suffice.
5. With respect, it appears to us that the view taken in the case above referred to is plainly the correct view to take of the section. Section 111, T.P. Act, which enumerates the circumstances in which a lease of immovable property determines, lays down in Section 111(g) that such determination may take place by forfeiture of the tenancy in a case where the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. It is quite obvious that a landlord and a tenant may stipulate as between themselves that the rent must be paid regularly, that a default in respect of the regular payment of rent would entitle the landlord to treat the tenancy as forfeited and to re-enter the premises. That the breach of an express condition such as is contemplated by Section 111(g), T.P. Act, may cover non-payment of rent is placed beyond doubt by the language of Section 114 which deals with a case where a lease of immovable property is determined by 'forfeiture for non-payment of rent.' We respectfully agree in the view taken by Mukherjea and Sen JJ. in Reliance Jute Mills Co., Ltd. v. Dukhi Shah Dhanraj Shah : AIR1942Cal550 , and hold that a suit for ejectment on account of non-payment of rent, as contemplated by Section 3, Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 1940, and excepted from its purview, is a suit wherein the landlord asks for ejectment of the tenant on the ground that a default has been committed with respect to payment of rent. We are unable to agree with Mitter J. that a suit for ejectment on the ground that there has been default in respect of the payment of rent cannot, in any circumstance, be maintainable. We notice that his Lordship's judgment is not a considered one but was delivered immediately and the respondent was not represented before him. If, as we hold, such a suit be maintainable in law, the language of Section 3 makes it perfectly clear that it contemplates only those suits in which non-payment of rent is the ground for the claim for ejectment. The section speaks of 'ejectment on account of nonpayment of rent', and this language can leave no room for doubt as to the meaning of the Legislature.
6. Reference may, however, in this connexion be made to a decision of Derbyshire C.J. and Gentle J. in Radhikalal Goswami v. Gopeswar Basu ('42) 46 C.W.N. 1025. That case has sometimes been taken as laying down an absolute proposition to the effect that wherever a claim for arrears of rent is joined to a claim for ejectment, the suit must be taken to be one for ejectment on account of non-payment of rent. A reference to the facts of the case would, however, show at once that this view of the decision is entirely erroneous. The facts upon which the learned Chief Justice pronounced were of an exceptional character. The tenant was long in arrear; the landlord had served a notice calling upon him to pay up the arrears and quit the land; and he had brought a suit for recovery of the arrears and for ejectment on the tenant having done neither. It was on a construction of this context of facts that the Court held that the suit in that case might properly be regarded as a suit for ejectment on account of nonpayment of rent. The decision, in our view, is no authority for a general proposition that every suit for ejectment in which there is a claim for arrears of rent is a suit for ejectment on account of non-payment of rent.
7. Turning now to the facts of the present case, it appears that in para. 3 of the plaint, the plaintiff stated quite unequivocally that she had served upon the defendant a notice to quit for the reason that she required to take possession of the land for her own purposes. The notice served on the defendant is in identical terms and sets out only that reason. It is true that a reference to arrears of rent is made in Para. 6 of the plaint, but it is perfectly clear that the existence of those arrears was not being made the foundation of the claim for ejectment in any manner whatsoever. Besides, it does not appear to have been established in the case that it was one of the terms of the tenancy that in case of default with respect to payment of rent, the landlords would be entitled to re-enter the premises and, clearly, ejectment was not being claimed in the suit on the basis of such a right reserved to the landlord. In our opinion, the suit in the present case was not a suit for ejeetment on account of non-payment of rent, and accordingly it was liable to be stayed, the moment the Bengal Non-agricultural Tenancy (Temporary Provisions) Act came into operation, or in any event, the moment it was pleaded. The decisions of the Courts below, in so far as they dealt with the claim for ejectment, must, therefore, be set aside, and it must be held that the suit must be deemed to have stood stayed as on and from the date when the Bengal Non-agricultural Tenancy (Temporary Provisions) Act came into operation.
8. Section 3, Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 1940, however, has no reference to a claim for rent, and where the prayers in a suit comprise both ejectment and recovery of arrears of rent, the proceedings, so far as they relate to the latter claim, are not liable to be stayed. In the present case, the trial Court passed a decree for Rs. 44-0-0 on account of arrears of rent as claimed in the suit, as also for a further sum of Rs. 206-10-0 on account of damages for the subsequent period of use and occupation up to the date of the judgment, subject to the payment of the necessary deficit court-fees. There could be no question of the competence of the proceedings before the Courts below so far as the claim for rent and damages was concerned, and the decree so far as it relates to this claim, was obivously a good decree and must be affirmed.
9. That, however, cannot be the end of the matter. In para. 6 of the plaint, the plaintiffs asked for not only the arrears of rent, but also for any mesne profits to -which she might be found entitled by the decision of the Court. It was obviously on the strength of this prayer that the trial Court added in the decree an amount of Rs. 206-10-0 on account of damages on the basis of use and occupation. It appears to us just and proper that on the strength of the same prayer in the plaint, we should increase the amount of the decree so as to comprise the mesne profits payable to the plaintiff up to the date of this judgment. There is no dispute between the parties as to the amount payable. Mr. Basak who appears for the respondent stated to us that the total amount payable to his client on account of rent and damages up to the date of this judgment would be Rs. 913-0-0 without taking into account any payments that might have been made by the appellants. There will, therefore, be a decree for the sum of Rs. 913-0-0 on account of rent and damages up to this date, subject to the respondent paying in the necessary amount of deficit court-fees, and the respondent will be entitled to levy execution for such sum as may still be due to her after giving credit to the appellant for the payments already made.
10. It appears that during the pendency of the present appeal, a Rule (civil Rule No. 828/S of 1942) was taken out for stay of delivery of possession of the property, and by an order, dated 22-12-1942, made by Henderson J., the rule was made absolute on terms. The term imposed by his Lordship was that delivery of possession would be stayed if the appellant paid into Court the sum of Rs. 300-0-0 and that the respondent would be entitled to withdraw the money in satisfaction of the subsequent claim for rent if the ppeal was allowed. We now direct that the respondent, on complying with the order of this Court as regards deficit court-fees, would be entitled to withdraw the whole of this sum lying in deposit in the Court below, or such part of it as may be sufficient to discharge the liability still owing to her. We are passing a decree for subsequent damages in order to give practical effect to the order made in the rule for stay.
11. As regards the actual form of the order we should make, it is necessary : to refer to a decision of Edgley and Latifur Kahman, JJ. in Gangjee Sajun & Co. v. Lalji Agarwala Jain ('46) 51 C.W.N. 131, which has subsequently been followed in a case not yet reported Surendra Nath Das v. Sm. Sukumari Debi Appeal No. 1164 of 1942 a decision to which one of us was a party. In the case before Edgley and Latifur Rahman JJ., as well, a decree for ejectment had been passed, although the suit appears to have been one which was not a suit for ejectment on account of non-payment of rent, and although the special Act had been pleaded. This Court did not set aside the decree so far as it related to ejectment, but merely directed that to the extent that it related to ejectment, the execution of the decree would remain stayed for the period during which the special Act might continue in force As far as can be gathered from the judgment, this order was passed on the basis of the proviso to Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940.
12. With respect, this view, in our opinion, is not correct. The scheme of Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act 1940, is that the suits for ejectment on account of non-payment of rent are outside the main provision altogether, and a tenant can claim no relief by way of a stay of the suit under that provision. He must suffer a decree, but after a decree has been passed, the proviso comes to his aid at that stage, for, it provides that although the suit may be one for ejectment of a non-agricultural tenant on account of non-payment of rent, and although the suit could not have been stayed and was not stayed, still, when the stage arrives for the execution of the decree, the tenant defendant may avert execution by putting in the decretal amount, together with the costs of the proceeding. It appears to us that in a case where a suit was one within the main provision of Section 3 of the Act, and not excepted therefrom, and a plea that it should be stayed was wrongly overruled, the decree subsequently passed for ejectment, when it is questioned before this Court in second appeal, cannot be allowed to stand, leaving it to the defendant to have its execution stayed by availing himself of the proviso. The Courts below having proceeded with the suit in direct contravention of the Act, must be deemed to have erred in law and to have passed a decree which they had no jurisdiction to pass. Such a decree can only be set aside and cannot be maintained with 6he qualification that its execution would be liable to be stayed.
13. In the ease above referred to, the learned Judges appear to have taken the whole of Section 3, including the proviso, as applicable to all kinds of suits for ejectment, the main provision and the proviso being applicable to different stages. That, in our opinion, is not the correct view of the section. The main provision applies only to suits in which the claim for ejectment is grounded in some reason other than non-payment of rent and gives relief against trial of such suits. The proviso applies only to suits of the excepted kind and with respect to them,| relief is given not against the trial of the suitsj which cannot be stayed, but only against the execution, of the decree. Where the suit is one within the main provision but was yet not stayed, the operation of the main provision, on the one hand, cannot be excluded and on the other hand, the proviso has no application. Effect must, be given to the main provision.
14. For the reasons given above, this appeal is allowed. The judgments and decrees of the Courts below, in so far as they relate to the question of the ejectment of the defendant, are set aside and it is directed that the suit shall be deemed to have stood, stayed as on and from 30-5-1940. The decrees, in so far as they relate to the claim for rent and damages, are modified in manner that in lieu of the decree passed by the trial Court and upheld by the Court of appeal below, the plaintiff will get a decree for Rs. 913 on account of arrears of rent and damages up to the present date, subject to her paying the necessary amount of the deficit court-fees within one month of the arrival of the record in the trial Court. Since there was no appeal to the lower appellate Court or to this Court with respect to the claim for rent and damages, the deficit court-fees will be payable only with respect to the plaint in the trial Court. On payment of the deficit court-fees within the time allowed above, the plaintiff will be entitled to execute the decree for rent and damages for such balance thereof as may still be found to be owing to her on giving due credit for payments already made by the appellant. In default of the plaintiff-respondent paying the deficit court-fees within the time above allowed, the modification of the decree made by this Court in her favour will stand cancelled. Since success in the litigation has been divided, we direct that each party will bear its own costs throughout.
15. I agree with the judgment which has been delivered by my learned brother. In particular, as I was a party to the decision in second Surendra Nath Das v. Sm. Sukumari Debi Appeal No. 1164 of 1942, referred to above, I entirely agree with the view now expressed by my learned brother on the topic that the decree must be set aside and not stayed.