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Suresh Chandra Chatterjee Vs. Kanti Chandra Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1928Cal436,110Ind.Cas.715
AppellantSuresh Chandra Chatterjee
RespondentKanti Chandra Bhattacharjee
Cases ReferredRai Charan Mandal v. Biswa Nath Mandal
Excerpt:
- .....was heard by the learned third additional district judge, 24-parganas and allowed. the learned judge decreed that the defendant should vacate the premises in suit within one month from the date of judgment which was 29th july 1927 and he was further directed to pay damages at the rate of rs. 39 a month from 1st april 1925 till possession was delivered. the learned judge took a different view of the facts relied upon by the trial court and he found that the defendant did not pay the rent regularly to the plaintiff or deposit it in the rent controller's court and was therefore not protected from ejectment by virtue of the provision of sub-section 5 of section 11 of the act. he was also of opinion that the evidence in the case went to show that there was no preliminary tender of rent to.....
Judgment:

Suhrawardy, J.

1. This is an appeal from the decree of the Additional District Judge of 24-Parganas in a suit in ejectment. The appellant became the tenant under the plaintiff in respect of premises, 17/2-A, Kundu Lane, Bhowanipur, in the suburbs of Calcutta, at a monthly rent of Rs. 50, in 1920. Subsequently the parties went to the Rent Controller to fix the standard rent of the premises under the Rant Act of 1920 which was then in-force. The rent was fixed by the Rent Controller at Rs. 39 a month. On 14th. March 1925 the plaintiff gave a notice to the defendant asking him to vacate the premises by the end of March 1925. The defendant not having vacated within the time allowed to him, the present suit was instituted on 13th May 1925 for ejectment against the defendant. The trial Court dismissed the plaintiff's suit on the ground that the defendant was protected from ejectment under the provisions of Section 11, Rent Act. This order was pronounced on 30th July 192Q. There was an appeal by the plaintiff against the decree of the trial Court. The appeal came on for hearing on 29th July 1927. In the meantime the Rent Act expired and ceased to exist. The Rent Act was originally passed in 1920 in respect of all premises in and about Calcutta and came into operation from 5th May 1920. The Act was originally enacted for three years but by subsequent enactment it was extended up to 31st March 1924. Before it expired another Act was introduced and the Rent Act got a fresh lease of life till 31st March 1927, but only in respect of premises of which the rent was below Rs. 250 a month so that so far as the premises in question are concerned the Rant Act must be taken to have affected them till it expired on 31st March 1927.

2. The appeal was heard by the learned Third Additional District Judge, 24-Parganas and allowed. The learned Judge decreed that the defendant should vacate the premises in suit within one month from the date of judgment which was 29th July 1927 and he was further directed to pay damages at the rate of Rs. 39 a month from 1st April 1925 till possession was delivered. The learned Judge took a different view of the facts relied upon by the trial Court and he found that the defendant did not pay the rent regularly to the plaintiff or deposit it in the Rent Controller's Court and was therefore not protected from ejectment by virtue of the provision of Sub-section 5 of Section 11 of the Act. He was also of opinion that the evidence in the case went to show that there was no preliminary tender of rent to the landlord before it was deposited in the Rent Controller's office and hence it was not a proper payment of rent within Sub-clause 4, Section 11, Rent Act. We have examined these - clauses in the light of the evidence in the case and the findings of the first Court and we do not think that they can be supported. But the learned vakil for the respondent has supported the decree passed by the appellate Court upon a different ground, namely, that on 29th July 1927 there was no Rent Act in operation and the defendant's tenancy having been terminated by a valid notice he was liable to be ejected and hence the decree of the lower appellate Court is correct. This seems to be the correct position to take. Under the general law a landlord is entitled to determine the tenancy of a tenant under him by a valid notice and he is further entitled to recover possession of the property let out to the tenant on the termination of the tenancy. This right of the landlord for a certain period became interrupted by the Rent Act which laid down certain circumstances in which recovery of possession of land could not be obtained by the landlord. That bar ceased to exist on 31st March 1927. On the day on which the learned Judge delivered his judgment the law which is the general law under the Transfer of Property Act was in operation and he having found that the tenancy was validly determined he had authority to pass a decree ordering ejectment of the defendant. The effect of a temporary Act running out and ceasing to have any further operation has been considered in many cases. The principle is thus laid down in Craies on Statute Law, 3rd edn., at p. 342:

As a general rule and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect.... As soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.

3. In Quilter v. Mapleson [1882] 9 Q.B.D. 672 it was held that the Court of appeal could grant to a party relief to which he was entitled according to the law as it stood at the hearing of the appeal. In his judgment Bowen, D.J. observed:

The rules were intended to enable the Court of appeal to do complete justice. If the law has been altered pending the appeal, it seems to me to be pressing rules of procedure too far to say that the Court of appeal cannot decide according to the existing state of the law.

4. The same view has been taken in several cases in this country of which reference may be made to Kanakayya v. Janardhan Padhi [1910] 36 Mad. 439, Muthuswami Ayyar v. Kalyani Ammal [1916] 40 Mad. 818. This principle is based upon another principle that a Court of appeal must in certain exceptional circumstances take notice of events which have happened since the institution of the suit and afford relief to a party on the basis of the altered circumstances Ram Ratan v. Bishun Churn [1907] 6 C.L.J. 74, Ramyad Sahu v. Bindeswari Kumar [1907] 6 C.L.J. 102; Udit Chobey v. Rashika Prasad [1907] 6 C.L.J. 662; Rustomji v. Purshotamdas [1901] 25 Bom. 606; and Dinanath Mahish v. Nabakumar Hazra A.I.R. 1921 Cal. 792. All the relevant cases on this point have been considered by Mookerjee, J., in Rai Charan Mandal v. Biswa Nath Mandal [1914] 20 C.L.J. 107. It is true that an appellate Court has to decide a case as it was presented before the trial Court and on a consideration of which the original judgment is based. But if the right claimed is one which has either ceased to exist or been modified by certain events which have transpired since the decree of the trial Court the Court is bound to take notice of it in order to give just and proper relief to the parties to the appeal before it. Upon these and similar considerations Rule 33, Order 41, Civil P.C., was introduced for the first time by the Act of 1908. A Court of appeal is empowered thereby to make such a decree or order as the case may require. I am accordingly of opinion that the decree passed by the learned Judge was correct on the findings arrived at by him namely that the defendant was tenant-at-will whose tenancy was determined by a valid notice and he was liable to be ejected, though not on the grounds on which the lower appellate Court has relied in support of its decree.

5. The learned advocate for the appellant has argued that before a decree could be passed against his client for ejectment the validity of the notice should have been determined. In the trial Court an issue was raised with regard to the sufficiency and validity of the notice of ejectment. But that Court having found in favour of the defendant on the law did not enter into a discussion of it. In the appellate Court this question was raised and the learned Judge observed that notice was served on 14bh March requiring the defendant to vacate at the termination of the month of March. The defendant signed an acknowledgment of the receipt of the notice but did not vacate the premises. The learned Judge further observes that the defendant admits the receipt of the notice to quit and no evidence has been given to show that the notice is not valid:

There can be no doubt, therefore, that were it not for the Rent Act the defendant could not resist ejectment.

6. It is also contended that the learned Judge has misplaced the onus of proving the validity of the notice upon the defendant whereas it being the basis of cause of action in the suit the plaintiff ought to prove that he had validly determined the tenancy. None of these contentions ought to prevail. The learned Judge has dealt with the question of the proof of notice and he has come to the conclusion that it was valid inasmuch as it was not shown that the notice was invalid. This is really not a question of misplacing the onus. It was a tenancy-at-will. The notice was served on 14th March 1925 ending with the last day of the month. Apparently it was a good and sufficient notice under Section 106, T.P. Act. The plaintiff if there was any onus on him, had discharged it by proving the receipt of the notice; and if the defendant contended that it was not a sufficient and valid notice it was for him to show that it was so. I am, therefore, of opinion that it is not necessary to remand the case to the lower appellate Court for a further finding with regard to the sufficiency of the notice. The appeal accordingly fails and is dismissed with costs.

7. There is a cross-objection on behalf of the respondent, that the amount of damages fixed by the lower appellate Court is insufficient. The learned Judge has decreed damages from 1st April 1925 till possession is given at the rate of Rs. 39 a month that being the standard rent fixed under the Rent Act. The contract between the parties was Rs. 50 a month and this the plaintiff-respondent claims should have been allowed to him by way of damages. It is the plaintiff's case that he terminated the defendant's tenancy by a notice from 1st April 1925 and from that date the defendant was a trespasser in occupation of the premises. He cannot, therefore, claim as a matter of right that damages must be in the shape of rent which was stipulated between the' parties. But it is open to the Court to assess damages which the plaintiff is entitled to get from a trespasser in wrongful possession of the premises. The Rent Controller has found that Rs. 39 was the' fair rent of the premises and we cannot say that the principle upon which the learned Judge has assessed damages is so obviously wrong as to entitle us to interfere in second appeal. The cross-objection must accordingly fail. But the decree of this Court will be that the defendant will vacate the premises on 31st March 1928 and in the event of his doing so he will pay damages to the plaintiff (less the money deposited by him in the Rent. Controller's office and any amount paid by him for or on behalf of the plaintiff) at the rate of Rs. 39 a month from 1st April 1925 till March 1928. If the defendant fails to vacate the premises on or before 31st March 1928 he will be liable, to pay damages to the plaintiff at the rate of Rs. 50 a month from 1st April 1927 till the date of delivery of possession to the plaintiff. We make no order as to costs of the cross-objection The plaintiff is entitled to the amount that has been deposited to his credit by the defendant in the proceedings under the. Rent Act.

8. Any amount in excess of what is decreed by this order and deposited by the. defendant may be refunded to him.

9. The appeal and cross-objection are dismissed with the modification stated above.

Graham, J.

10. I agree.


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