P.B. Mukherji, j.
1. This is a suit instituted on the 15th day of September, 1949, against the defendant for the recovery of possession of premises No. 63, Upper Circular Road, Calcutta, and for certain other reliefs by way of arrears of rent and mesne profits. The suit was originally instituted by one Kanai Lal Paul against the Indian Homoeopathic Medical Association which is a society registered under Societies Registration Act. The case of the plaintiff was that the defendant was a monthly tenant of premises No. 63, Upper Circular Road at a monthly rent of Rs. 178/4/6 inclusive of taxes from December, 1948, which was increased to Rs. 326/9/-by an order of the Chief Judge of the Small Cause Court, Calcutta.
2. The cause of action pleaded in the plaint for eviction is ipso-facto determination of this tenancy under Section 12(3) of the West Bengal Premises Rent Control Act, 1948. In order to appreciate the point of ipso-facto determination in this case it is necessary to set out the fact of increase of rent made by the Additional Rent Controller and thereafter by the Chief Judge of the Small Cause Court. By an order of the 30th November, 1948, the Additional Rent Controller increased the rent to Rs. 196/- per month with effect from August, 1948. There was an appeal by the landlord against that order to the Chief Judge of the Small Cause Court, Calcutta, The Chief Judge by his order, dated the 19th April, 1949, increased the rent still further and standardised it at Rs. 275/- per month with effect from August, 1948 and Rs. 326/9/- per month with effect from December 1948. The main and only cause of complaint of the plaintiff is that the defendant failed to pay rent at the increased rate ordered by the Chief Judge.
3. The plaintiff's case is that a sum of Rs. 979/11/- became due as arrears of rent for three consecutive months of April, May and June, 1949 by reason of the order of the Chief Judge increasing the rent. The plaintiff on the 13th September, 1949, through his solicitors gave notice to the defendant to vacate forthwith as the tenancy had been determined ipso-facto by reason of the defendant's failure to pay or deposit rent for three consecutive months in accordance with the provisions of the West Bengal Premises Rent Control Act, 1948.
4. The original plaintiff died on the 31st October, 1950, and the present plaintiffs, the executors under the will of the deceased plaintiff, have been substituted by an order of this Court, dated the 15th March, 1951.
5. The written statement of the defendant association contends that there has been in fact no ipso facto determination as alleged or at all. The defendant also pleads that on the 13th May, 1949, the defendant moved this Court on the Appellate Side in its revisional jurisdiction against the order of the Chief Judge and obtained a Rule and an ad-interim order staying operation of the Chief Judge's order. In those circumstances, the defendant submits in the written statement that the plaintiff has no cause of action against the defendant. The written statement was filed on the 3rd November, 1949. (6) The issues raised by counsel for the defendant and accepted by counsel for the plaintiff are:
1. Has the defendant failed to pay or deposit in accordance with the provisions of the Rent Control Act of 1948 the rent payable by it for three consecutive months of April, May and June, 1949? 2 (a) If so, has the tenancy been determined ipso-facto within the meaning of Section 12 (3) of the Rent Act of 1948? (b) If so, is the defendant entitled to any relief under the Rent Act of 1950?
3. To what reliefs, if any, are the plaintiffs entitled?
7. On behalf of the plaintiffs Jagadindu Paul, one of the plaintiffs, has given evidence. On behalf of the defendant association its Secretary, Manindra Chandra Laha has given evidence. There is an admitted brief of documents, marked as Ex. A in these proceedings. The rent challans also have been exhibited in this suit on behalf of the defendant.
8. It is common ground that rents at Rs. 196/- per month had been deposited with the Rent Controller regularly throughout the period in dispute. The rate of Rs. 196/- was fixed by the order of the Rent Controller on the 30th November, 1948, taking effect from August, 1948. After the date of the institution of the suit on the 15th September, 1949, the defendant has regularly and throughout paid or deposited with the Rent Controller rent at this rate of Rs. 196/- per month. No objection on that ground is taken by or on behalf of the plaintiffs. What is said is that the defendant failed to pay the standard rent as fixed by the Chief Judge on appeal and that failure continued for the three consecutive months mentioned in the plaint leading to the statutory forfeiture under Section 12(3) of the Rent Act, 1948.
9. The order of the Chief Judge of the Small Cause Court was made on the 19th April, 1949. That order fixed the standard rent at Rs. 275/-per month from August, 1948 and Rs. 326/9/-per month from December, 1948. So, the failure was to pay at the rate of Rs. 326/9/- per month for April, May and June, 1949.
10. The defence put forward is that on the 13th May, 1949, the defendant association moved in the Civil Revisional Jurisdiction on the Appellate Side of this Court under Section 115 of the Code of Civil Procedure against this order of the Chief Judge of the Small Causes Court, dated the 19th April, 1949. On that very day, i.e., on the 13th May, 1949, the defendant obtained a Rule calling upon the plaintiffs to show cause why the Chief Judge's order complained against should not be set aside. Pending the hearing of the Rule the defendant also obtained on this day, the 13th May, 1949, an 'ad-interim stay of the operation of the said order'. This stay order continued until the 16th December, 1949, when the Court discharged the Rule on the ground that the Court had no jurisdiction to entertain that application under Section 115 of the Code of Civil Procedure. The judgment delivered on that occasion will be found reported in the 'Indian Homoeopathic Medical Association v. Kanai Lal', 54 Cal W N 389. The Bench in delivering judgment said:
'A reasonable view to take of the matter is to hold that Section 32(6) and (7) of the Act by necessary intendment has taken away the powers of this Court to interfere in revision under Section 115 of the Code with an order passed by the Rent Controller or by the Chief Judge or the District Judge or the appointed Judge.
'The preliminary objection, therefore, succeeds.
'As the question involved was in a state of uncertainty parties will bear their own costs in these Revision cases,
'The Rules are accordingly discharged.'
11. Between the 13th May 1949 and the 16th December 1949, therefore, there was this ad-interim stay of the operation of the order of the Chief Judge standardising the rent at Rs. 326-9-0 per month for the period in suit. The central point of the defence is that by reason of the stay of the operation of the order of the Chief Judge the forfeiture pleaded in the plaint and on which the plaintiffs claim their ground for eviction has not taken place. The forfeiture operates in this case only if the order of the Chief Judge is allowed to operate during the time pleaded in the plaint. Because the default on which reliance is placed by the plaintiffs is the default under the order of the Chief Judge and because the defendant had paid during that period the rent at Rs. 196/- per month as standardised by the order of the Rent Controller & not as finally standardised by the Chief Judge. It is, therefore, argued on behalf of the defendants that on the 15th September 1949 when the suit was instituted the operation of the stay order being there no forfeiture had occurred as claimed in the plaint &, therefore, the plaintiff had no cause of action at the date when the suit was instituted.
12. The answer on behalf of the plaintiffs is that whatever may have been the effect of an interim stay of the operation of the order of the Chief Judge at the time when it was made, it is now quite clear that by reason of the finding of the Court on the 16th December 1949 discharging the rule that it had no jurisdiction whatever in the matter, this order for interim stay was a mere nullity and void ab-intitio being an order passed without any jurisdiction. Therefore the 'ad-interim' stay of the operation of the order of the Chief Judge could not prevent the forfeiture under the statute.
13. It is necessary to refer to certain authorities which have been placed before me in order to decide this controversy. In the case of -- 'Jatis Chandra v. Kshirode Kumar', reported in 47 Cal W N 186 an observation is made to the effect that an action taken by the lower court in a suit in which further proceedings have been stayed by the Appellate Court in ignorance of such stay order, is not a nullity and that such action must be set aside by appropriate proceedings either by the Appellate Court or by the lower Court itself and, if not set aside, it cannot be totally ignored in another suit or other in dependant proceeding particularly if the stay order was ultimately discharged. On behalf of the defendants particular reliance has been placed on the cases observed at page 192 of that report. But in this case Mitter J. at page 193 was careful to observe:
'The case would not in any way be analogous to the case where a Court having no jurisdiction, either territorial or pecuniary or over the subject-matter, assumes jurisdiction and passes a decree or order and does any other act. There is no analogy between a case where a Court passes an order in contravention of the stay order of the Appellate Court and the case, for instance, where the Small Cause Court Judge passes a decree for possession of immoveable property. An order passed by a Court or an act done by it in contravention of the stay order would be an irregular one and may even be regarded as illegal but it would only be an order passed or an act done in the illegal exercise of its jurisdiction and so would not in our judgment be a nullity. It will have to be set aside by appropriate proceedings.'
That in my view is the crux of the problem in this suit. In this case the 'ad-interim' stay was not an order made in the illegal exercise of Court's jurisdiction but it is a case where there was no jurisdiction at all. The distinction between these two classes of cases is material to be observed and it leads to different results. In the Full Bench decision of this Court in --'Hriday Nath v. Ramchandra', reported in 48 Cal 138 (FB) Mookerjee A, C. J. observes at page 148:
'But the distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion. We must not thus overlook the cardinal position that in order that jurisdiction may be exercised there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by Court without jurisdiction' is void subject to the well-known reservation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it.'
The question between the parties in this suit today can be no longer be agitated whether the this Court has jurisdiction to revise the order of the Chief Judge under Section 115 of the Civil Procedure Code or not. That point has been settled so far as the parties to this suit are concerned, and is 'res judicata'. I, therefore, proceed as I consider it is the true correct legal position, that this Court had no jurisdiction at all in the matter under Section 115 of the Civil Procedure Code to revise the order of the Chief Judge.
14. The question then is that the only way the interim stay can be interpreted to prevent the operation of the order of the Chief Judge so as to avoid the statutory forfeiture, is to say that this interim order was necessary for the Court to determine the very point whether it had jurisdiction or not. The only limitation on the doctrine that every order of a Court passed without any jurisdiction is void, is that the Court is given the power to decide whether it has that jurisdiction or not and an order so deciding is not void even though the decision is that the Court has no jurisdiction. It is not possible in my view to contend that except that particular decision of the Court any other decision where there exists no jurisdiction in the Court will not be void and not regarded as a nullity. Can the 'ad interim' stay be regarded as a valid order within jurisdiction on the ground that it is in aid of the Court finally determining against its jurisdiction? The order for stay was to prevent the operation of the Chief Judge's order. That was not necessary for the purpose of deciding the point of jurisdiction. It can be described as necessary only for the purpose of maintaining the 'status quo' during the time that the Court had to take to come to a decision on the question of jurisdiction. An order maintaining 'status quo pendente lite' is not an order deciding the point of jurisdiction. The maintenance of status quo was not essential in this case as its absence would not have rendered the position of any of the parties so irreparable as could not have been repaired by restoration and/or considerations of money. If the stay order were not granted, the defendant would have had to pay at the rate fixed by the Chief Judge and if the Court had held that it had jurisdiction to revise the order and in fact did so revise reducing the rate of rent, then the only question would have been either one of refund or of credit for the excess payment made during that time by the defendant. That, however, is a question which involves considerations of money and money alone.
15. That being the position of the 'ad interim' order for stay, it must be regarded as void without jurisdiction. It is true that during such stay the suit was filed. The filing of the suit may have been a violation of the ad interim order for stay. A violation of such order would ordinarily be ground for (a) proceeding in contempt, (b) or such steps as could be taken by the defendant by injunction or otherwise to restrain such violation. But in any of such proceedings it was open to challenge by the plaintiffs so violating the interim order to contend that the order was without jurisdiction, a nullity and not observable at all.
16. The order of the 16th December, 1949, is an order which in my opinion must have retrospective effect, because the decision that the Court has no jurisdiction must mean that any order made prior to the decision is also without jurisdiction. Otherwise one has to reach the rather insensible conclusion that the Court had no jurisdiction in the final order but the Court had jurisdiction in the interim order. The only way that the Court could have jurisdiction in the interim order would have been an order of such nature which would be necessary to the determination of the point of jurisdiction itself. As I have said, such is not the nature of the interim order in this case.
17. In a recent case of the Patna High Court in -- 'Mohonlal Mahato v. Shibdhari Chaube', reported in AIR 1942 Pat 146, Harries C. J. as Chief Justice of the Patna High Court observes at page 148:
'Mr. Sinha, however, has contended that even assuming that the order was without jurisdiction, yet it would have been obeyed by the learned Munsiff had he received it in time. Doubtless the learned Munsiff would have obeyed the order out of loyalty to the superior court. It is not for the Munsiff to question the validity of these orders. Fortunately, however, for the appellant in this case the order was not transmitted to the learned Munsiff and the sale took place. We are now asked to say that when the sale took place there was in existence an order prohibiting it and that being so, it was a sale without jurisdiction. The order purporting to prohibit the sale was, as I have said, an order without jurisdiction. In short it was no order at all. And that being so, when the sale took place, there was no valid judicial order prohibiting it. It, therefore, took place in accordance with law and was a sale with jurisdiction.'
There are a number of other decisions on this point, but it is unnecessary for me to refer to them as I feel the Full Bench decision of this Court is enough on the point.
18. On behalf of the defendant reliance has been placed on a statement of the law at page 1344 in Vol. II of the 8th Edn. of Danieli's Chancery Practice. That statement is made in these terms:
'An order made by a branch of the Court which has not proper jurisdiction over the cause must till discharge be treated as a valid order and the party affected by such order is not at liberty to treat it as a nullity or obtain another order inconsistent with it from the proper branch of the Court.'
The learned editor in support of this statement cites some cases. The first case cited is of --Boddy v. Kent', reported in (1816) I Mer. 361. But there the question was one of irregular-exercise of jurisdiction. That is a case where it is said that an order, to dismiss for want of prosecution after an abatement, although irregular, is not to be regarded as a nullity and consequently that order must be discharged before the plaintiff can obtain an order to revive the suit. I am not concerned here with an irregular order or an illegal exercise of jurisdiction but a total lack of jurisdiction altogether. The next case cited in Danieli's Chancery Practice is -- 'Fennings v. Humphery', reported in (1841) 4 Beav 1. There again the question arose in this way. 'A' 'agreed to grant a lease of a vault to 'B' and also to erect a crane, etc., and do. within a given time certain other acts which the Court could not decree- to be specifically performed. 'A' having made default, 'B' sued in the court of the Master of Rolls for a specific performance but did not ask that the stated acts should be specifically performed. Pending that suit 'B' also commenced an action at law against 'A' for damages suffered in consequence of the non-performance of the acts. There it was held that the suit and action were not for the same matter and an order to elect obtained by the defendant was discharged. The point, therefore, in that case was entirely different from the problem that I have to decide. The Master of Rolls in fact at page 7 of that report observes:
'But it has been argued that even if the order were not originally valid, the plaintiff by her proceedings at law, after the order was served upon her, has lost the right of applying to discharge it. It is clear that a party who is served with an order, may be guilty of contempt for disobedience, in a case in which the order 'ought not to have been made'. He is not to determine by himself, but ought to come to the Court for relief, if advised that the order is invalid.'
Here again, as I said, it is not a case before me where the order 'ought not to have been made'; the order was made without any jurisdiction altogether. Here was a case where the order 'could' not have been made. The next case cited in Danieli's Chancery Practice is --'Blake v. Blake', reported in (1844) 7 Beav. 514. That was a case where an order alleged to have been irregularly obtained was held not to be a nullity and that it operates until by a proper application it is discharged. There the Master of Rolls at page 514 says: 'I should feel great difficulty in treating the order to amend as a nullity. It may or may not be regular, but it must remain in operation until, upon a 'proper application, it is discharged.'
I am here in this case not concerned with an irregular order but a void order which, as I read the authorities, is to be regarded as a mere nullity as though it was never made. The next case cited in Danieli's Chancery Practice is of -- 'Wilkins v. Stevens', reported in (1840) 10 Sim. 617. That also was a case of an irregular order, not an order passed completely without jurisdiction.
19. It is, therefore, clear that these authorities referred to in Danieli's Chancery Practice are only in support of the proposition that an order made wrongly or irregularly is not to be treated as a nullity but must be held to be operative until properly discharged in a properly constituted proceeding. But that only goes to show that an order which is without jurisdiction and not merely irregular or illegal is void and a nullity. The decision referred to on behalf of the defendant in -- 'Birajmohini Dassi v. Sarala Debi', 41 Cal W N 396, does not help the defendant. That case, if anything, is an authority for the proposition that it is open to a Court to determine whether it has jurisdiction or not to entertain a suit or a proceeding and if there is a judicial determination, the judicial determination assuming jurisdiction cannot be collaterally attacked. I am not concerned here at all with any judicial determination assuming jurisdiction; it is a case where there is judicial determination saying that the Court had no jurisdiction in the matter.
The other case relied on by Mr. Bagchi forthe defendant is -- 'Haripada v. Krishna Binode Roy', reported in 43 Cal W N 659. Ishould have thought that this was an authoritywhich supports the conclusion I have statedand at which I have arrived. It says wherethere is no inherent lack of jurisdiction in aCourt but the Court passes a decree on the erroneous view of the law which may be pleadedas a bar to the assumption of jurisdiction, sucha decree is not a nullity. The case proceededon the assumption that a decree or an ordermade where there is inherent lack of jurisdiction of the Court is nullity. The same point isillustrated also by the case of -- 'RashmoniDasi v. Gunada Sundari Dasi', reported in 19Cal W N 84. It will be found from the observations of Mookerjee, J. at page 87.
20. On behalf of the plaintiffs Mr. Burman has referred me to the case of -- 'Sahodra Koer v. Dhajadhari Goswami', reported in 16 Cal W N 447 to illustrate the principle that even in the case of disobedience to an injunction it must first be ascertained that the Court had jurisdiction over the subject matter in controversy and that even in that respect a clear distinction between an order erroneously made with jurisdiction and an order made absolutely without jurisdiction is observed. Mr. Burman has even referred me to the principle that in such cases where the Court's order is completely without jurisdiction, it is regarded as a nullity even to the extent that the executing Court can refuse to enforce the decree and for that purpose has drawn my attention to the Full Bench decision of this Court in -- 'Gorachand Haldar v. Profulla Kumar', reported in : AIR1925Cal907 .
21. Lastly on behalf of the defendant Mr. Bagchi relied on the case of -- 'Nageswara Ayyar v. Ganesa Ayyar', reported in AIR 1942 Mad 675 (2). In that case it is held that if the question which is alleged to create the want of jurisdiction is one which the Court itself is bound to decide, surely the matter is not one relating to jurisdiction. It is a fact like any other fact which the Court has to decide and if there is an error in the decision, it can only be remedied by an appeal or any other procedure known to law. I do not see how this proposition at all helps the defendant. If the question of jurisdiction depends on a question of fact such as residence, in that case then that question of fact must be determined by the Court and in determining such fact even if the court comes to a wrong decision that is not a case of inherent lack of jurisdiction in the Court but only a decision erroneous in law or in fact.
22. There is also another consideration arising out of this problem. That is that the defendant obtained this ad-interim order ex parte without notice to the plaintiffs. The defendant chose a procedure which is without any jurisdiction. In my opinion a party before a Court. whether he takes a point of law or a point of fact does so at his peril. That is exactly what has happened in this case. It was on the defendant's petition that the interim order was obtained and then finally it was found that the whole proceeding by revision under Section 115 of the Code of Civil Procedure which the defendant had invoked was one without jurisdiction.' The defendant could have deposited the higher rent as standardised by the Chief Judge even when it had filed the petition for revision under Section 115 of the Code of Civil Procedure. The defendant association chose to do very much more and obtain that interim order for stay. If it had taken the benefit of that order it is common justice that it should take all the risks as well. When the court found later on, that it had no jurisdiction, the statute, namely the Rent Control Act of 1948 had operated to create the statutory forfeiture provided therein. On this basis also and on this consideration I do not see why to allow the statutory forfeiture to operate in these circumstances would create any hardship or would be based on any unjust principle of law. It was a situation which was within the power-of the defendant to avoid by taking no risk and putting in the standard rent with the Rent Controller as fixed by the Chief Judge. If it does not to do so and gamble in law, it will have to bear the loss which that gamble has produced.
23. Finally assuming that the ad-interim order for stay was a good and valid order and within the jurisdiction of the Court in supposed aid of its decision about jurisdiction then the presentation of the plaint on the 15th September, 1949, was not a valid presentation at all, because the stay order was operative at that time. Then there is nothing in law to prevent me treating this plaint as being properly presented on the very first day that the ad-interim order was discharged, that is on the 16th December, 1949. The defendant cannot have it both ways. Either the ad-interim stay was void or it was not. My opinion is that it was void being completely without jurisdiction and is a mere nullity. But even assuming that it is valid, then the plaint would not be regarded as presented even on the 15th September, 1949 and can only be treated as a plaint instituted on the 16th December, 1949. In that event also the defendant has no defence, because on the 16th December, 1949, or on the 17th December, 1949, the statutory forfeiture had worked itself out and was complete as pleaded in the plaint, on the very day the Court declared itself without jurisdiction. The defendant had taken the risk and the risk had gone against it.
In order to get out of this situation Mr. Bagchi for the defendant has argued that the defendant will have a month's more time from the 16th December, 1949 with a view to avail of the deposit of rents by the defendant on the 15th January and 16th January, 1950. In my judgment the time for one month which Mr. Bachi claims is not permissible under the Rent Act of 1948. Section 12(1) (c) of the Rent Act 1948 provides that in the case where the Controller fixes the standard rent then in that case if his order does not mention the time within which the rent is to be paid, then such rent could be paid within one month from the date of such order. The 'Controller' is defined by Section 2(2) of the Rent Act, 1948, to mean Controller appointed under Section 28(1) and includes an Additional Controller and a Deputy Controller appointed under Sub-section (2) of that section. Therefore, 'Controller' under Section 12(1) (c) of the Rent Act, 1948, cannot mean the Chief Judge. Therefore, one month's time from the order of the Chief Judge after the 16th December can under no circumstances be allowed. At the best Mr. Bagchi's point would have been that one month's time from the 19th April, 1949 when the Chief Judge made the order could be allowed. Even that I am not convinced that it can be under the Act. But even then that would expire within a month after April or at the most a month after June, 1949. Even that does not help the defendant. On any view of the matter whether on the Act or on the specific time permissible thereunder, I find it impossible to justify grant of one month's time after the 16th December, 1949 when the High Court in its Revisional Jurisdiction discharged its Rule & vacated the interim stay order. Mr. Bagchi has also contended that the Rent Controller's order merged in the Chief Judge's order and, therefore, the time that would have been available from the Rent Controller's order would be available from the Chief Judge's order. I consider this argument to be fundamentally unsound because the effect of the Chief Judge's order was to completely replace the order of the Rent Controller and does not relate back to the latter order but itself specifies the time from when to come into effect. But here again even assuming this argument to be correct, it does not save the defendant on the facts of this case, because the time on that basis also had expired.
24. On these grounds and for these reasons I hold that there has been defendant's failure to pay or deposit in accordance with the provisions of the Rent Control Act of 1948, the rent payable for three consecutive months of April, May and June 1949. I, therefore, answer the first issue in the affirmative.
25. That being so, the tenancy must be regarded as determined 'ipso facto' under Section 12(3) of the Rent Act of 1948, and Issue No. 2 (a) must be answered also in the affirmative.
26. Then comes the question whether the defendant is entitled to any relief under the Rent Act of 1950 as amended. By Section 18 (5) of Rent Act of 1950 as amended relief is given to tenants against whom suits were pending in the trial court and where no decree for ejectment could be passed except on the ground that the interest of the tenant in such premises had been 'ipso-facto' determined under Section 12(3) of the Rent Act of 1948. It is clear on the pleadings and on the facts in this case that Section 18(5) of the Rent Act of 1950 as amended is attracted. It follows, therefore, that this Court shall exercise the powers of granting reliefs against ejectment given by Section 14 of the Rent Act of 1950 following the provisions and procedure of that section as far as may be necessary.
27. On this point certain facts may be stated briefly, and fortunately they are admitted. It is admitted that since January 1950 upto date all rents at the standard rent fixed by the Chief Judge have been paid and there are no arrears of rent. It is also admitted by Counsel Mr. Burman for the plaintiffs that he does not rely on any pre-Act default in order to deprive the defendant of the benefit of Section 14 of the Rent Act of 1950.
28. The only point on which Mr. Burman on behalf of the plaintiffs argued that the defendant is not entitled to any reliefs is that for the period from November 1950 up to date the deposit by the defendant with the Rent Controller, although made, in fact, was not validly made in accordance with the Rent Act of 1950. The point that he makes is this. The original plaintiff Kanai Lal Pal died on the 31st October, 1950. By a letter the plaintiffs' solicitor informed the defendants' solicitor of the death of Kannai Lal Pal. That letter is dated the 18th November, 1950 and marked Exhibit C. The chalans that have been tendered and exhibited in this suit show that all these deposits have been made in the name of the dead man Kanai Lal Pal in spite of the knowledge of the defendant that the man was dead. According to Mr. Burman the deposit, therefore, in the name of the dead man Kanai Lal Pal was not a deposit within the meaning of the Rent Act of 1950 and this non-observance continued from at any rate the 15th March, 1951 until date. The date 1.5th March, 1951 is taken as being the safest date for Mr. Burman because it was on that date the 'order for substitution was made in this suit to which the defendant was a party and where the grant of probate and the plaintiffs being the executors were recited. Therefore, it is argued by Mr. Burman that at any rate from the 15th March 1951 until today there has been a default within the meaning of the proviso to Section 14 of the Act so as to exclude the defendant from the benefit of Section 14. He says that although the 18 months have not expired, the three occasions with two months each, that is, six months, had expired with the deposit in the wrong name. Therefore it is argued' that there has been no valid deposit in accordance with Section 19 of the Act of 1950 as laid down in Clause (1) of proviso to Sub-section (1) of Section 12 of that Act.
29. A determination of this point depends on the construction of Sections 19 and 20 of the Rent Act of 1950. On behalf of the plaintiffs reliance is placed on Sub-section (2) of Section 20 of the Rent Act of 1950 which provides that deposit shall not be considered to have been validly made if any statements in the tenant's application depositing the rent whether made designedly or with gross negligence were calculated to prevent the landlord from receiving payment from the Controller. The design and gross negligence, according to Mr. Burman, are apparent from the answers of his client in the box Jogindra Nath Pal from questions 10 to 15. On behalf of the defendant, Manindra Chandra Laha has said in answer to question 41 that the defendant had taken it that, it was a question of estate and it would not involve any legal technicality.
30. The only question here is. that in order to attract Sub-section (2) of section 20 it has to be established that a statement is made in the tenant's application designedly or with gross negligence and which was calculated to prevent the landlord from receiving payment from the Controller. It is not enough under this section that the statement was made designedly or with gross negligence. It must also be shown that the statement was calculated to prevent the landlord from receiving payment from the Controller. I will assume and accept for the time being Mr. Burman's suggestions that there was design or gross negligence in this case. But that is of very little assistance to Mr. Burman. He has to show further that this deliberate insertion of the dead father's name was calculated to prevent the present plaintiffs, the executors and the sons of the deceased plaintiff, from receiving payment from the Controller. Mr. Burman appeared to suggest that the name mentioned being that of a dead person, the notices from the Rent Controller of the deposits of such rents would go to the dead person and, therefore, his clients would not be able to know whether any deposits were made or not, and the absence of this knowledge or information would prevent the plaintiffs from receiving the payment from the Controller. But the situation is not so helpless as this argument implies. The Rent Controller also would not know that the person was dead. That being so, the Rent Controller would send the notices addressed to the dead person. But what is the address? It is the same address where the present plaintiffs live. . That appears from the cause title to the plaint; and the only amendment was an amendment of substitution of the present plaintiffs, but the address remained the same as the address of the deceased plaintiff. It requires more than a little strain on my imagination to think that the present plaintiffs would not know about the notices addressed by the Rent Controller to the father at the same house where the plaintiff's sons are living now and that they will thus be prevented from receiving the rents from the Rent Controller. Apart from this even, any enquiry at the Rent Controller's office would have revealed if any rents were being deposited &, if so, how. I am convinced that this is not a conduct or such a misstatement in the facts of this case which can be regarded as 'calculated to prevent the landlord from receiving payment from the Controller'. The easiest thing in such circumstances would be for the plaintiffs to state to the Rent Controller that they are the present owners and that they are the executors and have succeeded to the deceased landlord, the plaintiff in whose name the rents have been deposited, and as such they are entitled to the rent. Provision is made in sub-sections (6) and (7) of Section 19 of the Rent Act of 1950. Formerly under Sections 20 of the Act of 1948 a wrong name or address of the landlord meant only a penalty for Rs. 500/-. In the present law under Sub-section (9) of Section 19 of the Rent Act of 1950, the landlord may complain to the Controller that the statements in the tenant's application of the reasons and circumstances which led him to deposit the rent are untrue, and the Rent Controller after giving the tenant opportunity of being heard can even now levy a fine on the tenant which may extend to Rs. 500/- and there is provision even for paying that fine to the landlord as compensation. I would therefore follow the well-known principle that there should be no more penalty than the express penalty specified in the Statute. It only means this that in the circumstances such a mis-statement in the tenant's application for deposit of the rent will not make the deposit invalid under the Act but will entail the special consequences as are attached to it by the specific provisions of the statute. I hold that the mis-statement in this case was not in fact 'calculated to prevent the landlord from receiving payment from the Controller.'
31. I, therefore, answer Issue No. 2 (b) in the affirmative and hold that the defendant is entitled to relief under the Rent Act of 1950.
32. This leaves the last issue which is about the reliefs of the plaintiffs.
33. The relief that the defendant is entitled to under Section 14 in this case has to be considered. It is an admitted fact that no rent is due, and it is also admitted that all rents at the proper rate stand deposited with the Rent Controller up to date. That being so, it is not called for to make an order within the meaning of the Sub-section (1) of Section 14 of the Rent Act of 1950 which requires the Court to determine the amount of rent legally payable by the tenant and also the amount of interest. But under Section 14 (1) the question of costs remains to be determined.
34. On the question of costs I have heard at length the Counsel on either side. I think it is necessary to state my conclusions clearly on the 'point. The present plaintiffs got themselves substituted, as I have said, by the order of the Court on the 15th March 1951. By that date the amendment of the Rent Act of 1950 had already come into force. The original plaintiff died on the 31st October, 1950 before the amendment of the 1950 Act came into force. The suit might have been allowed to abate but was not. The present plaintiffs got themselves substituted in. March, 1951. When they got themselves substituted as such plaintiffs and they pursued the suit, it seems to me to be quite clear that the plaintiffs could never have succeeded in their claim for ejectment because at the time of the order of the 15th March 1951, having regard to the amendment of Section 18 (5) of the 1950 Act, relief had to be given in the same manner as I have done today. The position was exactly the same as now. On that day also, the 15th March 1951, it is an admitted fact that all rents, even the rents fixed by the Chief Judge, had been deposited with the Rent Controller. So whether the 'ipso facto' determination of tenancy was there or not, the plaintiffs could never succeed in ejectment. If there was no 'ipso facto' determination, the plaintiffs' suit would have failed 'in limine' because there was no notice to quit to determine the tenancy. If there was 'ipso facto' determination, even in that case the plaintiffs' suit for possession failed. Therefore, I think the proper order for costs would be that the plaintiffs should be entitled to the costs until the 15th March 1951. Mr. Burman put forward Rs. 1,000/- as the reasonable costs with which he would be satisfied on behalf of the plaintiffs. Mr. Bagchi for the defendants has agreed to accept that sum.
There will, therefore, be an order for costs for the sum of Rs. 1,000/- against the defendant. This particular order for costs is by consent of both counsel for the plaintiff and the defendant.
35. This is the only order that I will and can make under Section 14 (1) (2) and (3) of the Rent Act of 1950. A sum of Rs. 250/- is already lying with the plaintiffs' solicitor towards the costs. Giving credit for that sum, the balance of Rs. 750/- is payable by the defendants under this order. I fix the 15th day from the date of this order excluding the date of the order, as the day on which the payment of this cost should be made. It is agreed between counsel that this sum of Rs. 750/- will be paid by the defendants' solicitor to theplaintiffs' solicitor. If, within the time sofixed, the defendant pays the sum of Rs. 750/-,then the suit for possession shall be dismissed.In default, the Court will proceed with thehearing of the suit. Liberty to the plaintiffs'solicitor to pay to the plaintiffs all amountsdeposited with them under order dated 20thDecember 1949 and also liberty to the plaintiffsto withdraw all monies deposited with theRent Controller. J, therefore, answer the thirdand last issue in these terms just stated.