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United Commercial Press Ltd. Vs. SatyanaraIn Chamaria - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 168 of 1951
Judge
Reported inAIR1953Cal136,56CWN346
ActsWest Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 - Sections 5, 12, 14(1), 14(3) and 18(5)
AppellantUnited Commercial Press Ltd.
RespondentSatyanaraIn Chamaria
Appellant AdvocateE.R. Meyer and ;S. Roy, Advs.
Respondent AdvocateShankar Banerjea and ;A.K. Sen, Advs.
DispositionAppeal dismissed
Cases ReferredLtd. v. Satyendra Chandra Sen
Excerpt:
- .....ltd. v. satyendra chandra sen', (86 cal. l. j. 46) cited above and to enable the courts to grant relief to tenants whose tenancies had been 'ipso facto' determined by reason of default in payment of rent for three consecutive months. if mr. meyer's contention be accepted then the amending act is wholly 'unnecessary because no decree could be made at all against such defaulting tenants.19. it seems to me that a construction must be given to this section which would give effect to the amending act rather than render it wholly useless verbiage, if such a construction can reasonably be given to the words in section 5. it seems to me that on a true construction of section 5 of the amending act all that was intended was that the amended definition of 'tenant' and the substitution of the.....
Judgment:

Harries, C.J.

1. This is an appeal from a judgment and decree of P.B. Mukharji J., dated September 6, 1951 made in favour of the plaintiff in a suit for ejectment.

2. The suit was brought by the plaintiff-respondent to recover possession of portions of certain premises known as No. 32 Sir Harriram Goenka Street on the ground that the tenancy of the said premises had been 'ipso facto' determined by reason of the provisions of Section 12(3) of the West Bengal Rent Control Act of 1948.

3. It appears that the tenancy commenced on April 1, 1944, the rent then being Rs. 525/-per mensem. Later in the year 1948 the rent was increased in circumstances which we know nothing of to a sum of Rs. 840/- per mensem. But no point is taken that this increase was in any way illegal.

4. In November 1948 there appears to have been some quarrel between the parties and in that month the tenant refused to pay his rent and never paid any rent for the premises thereafter right up until the date ot the decree, namely, September 6, 1951.

5. A suit was filed on November 29, 1949 claiming to eject the tenant-appellant. At that time the Rent Control Act of 1948 was in force and admittedly the tenant was a defaulter for three consecutive months or more and by reason of Section 12(3) of that Act his tenancy had been 'ipso facto' determined.

6. During the pendency ot the suit the West Bengal Rent Control Act of 1950 was passed which came into operation on March 31, 1950. Section 18(5) of this latter Act made applicable certain provisions of the 1950 Act in so far as may be to suits pending at the date when the Act came into force.

7. By a decision of this Court -- 'S.B. Trading Co. Ltd. v. Satyendra Chandra Sen', 86 Cal. L.J. 46, a Bench of this Court held that Section 18(5) of the West Bengal Rent Control Act, 1950 had no application to suits for ejectment based on the ground that the tenancy had been 'ipso facto' determined by failure to pay three months' consecutive rent as provided by Section 12(3) of the Rent Control Act of 1948. The result of this decision was that a very large number of tenants against whom suits were pending were deprived of the relief contemplated in Section 18(5) of the Rent Control Act of 1950.

8. To remedy this the Legislature passed an amending Act--The West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 which came into force on November 30, 1950. By this amending statute the term 'tenant' was amended and was re-defined as meaning

'any person by whom rent is, or but for a special contract would be payable for any premises, and includes--(i) any person who is liable to be sued by the landlord for rent; and (ii) any person whose interest in the premises has been 'ipso facto' determined under Sub-section (3) of Section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.'

9. This new definition was to be deemed always to have been substituted for the original definition in the 1950 Act.

10. Section 4 of this amending Act provided 'inter alia' for the amendment of Sub-section (5) of Section 18 and the words

'on the ground of default in payment in such premises has been 'ipso facto' determined under the provision of Sub-section (3) of Section 12'

were substituted for the words

'on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.'

11. By Section 5 of the Amending Act it was provided:

'In all applications made under Sub-section (1) of Section 18 of the said Act (meaning the 1950 Act) which are pending at the commencement of this Act and in all suits referred to in Sub-section (5) of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied.'

12. As I have stated earlier in the case of -- 'S.B. Trading Co., Ltd. v. S'atyendra Chandra Sen 86 Cal L J 46 cited above this Court had held that relief under Section 18(5) of the 1950 Rent Control Act could only be given to two classes of tenants, that is tenants who had been given by the statute an opportunity of paying the arrears of rent and had not paid the same within the time allowed. The Court had held that Section 18(5) had no application to tenants whose tenancies had been 'ipso facto' determined by reason of default in paying three consecutive month's rent. What the Legislature did in the amending Act was to give relief only to persons whose tenancies had been 'ipso facto' determined. The other classes of tenants which this Court had held were entitled to relief under Section 18(5) of the 1950 Act as drafted were excluded by the amending Act from anyrelief. After the amending Act, therefore, the position was that the only persons who could claim relief under Section 18(5) of the 1950 Act were persons whose tenancies had been 'ipso facto' determined under Section 12(3) of the Rent Control Act of 1948.

13. As I have said the suit which gave rise to this decree was pending when the 1950 Act came into force and was still pending when the amending Act of 1950 came into force on November 30, 1950.

14. Before P.B. Mukharji J. who heard the suit it was contended on behalf of the tenant appellant that by reason of the amending Act no decree for ejectment at all could be made against him. On behalf of the landlord respondent it was urged that no relief could be given under Section 18(5) of the 1950 Act as amended, though by the amendment that section was. made applicable to tenants whose tenancies had been 'ipso facto' determined. On behalf of the landlord it was contended that the tenant was guilty of such default and that no relief could be given to him under Section 18(5) of the 1950 Act which in terms referred to Section 14 of that Act.

15. P.B. Mukharji J. came to the conclusion that Section 18(5) of the Act of 1950 as amended was applicable to cases of suits brought against persons whose tenancies had been 'ipso facto' determined. He, however, held that by reason of certain defaults Section 14 of the Act could not be applied to give the defendant any relief whatsoever and he accordingly decreed the suit.

16. Before us Mr. Meyer on behalf of the tenant appellant has contended that by reason of the amending Act of 1950 no decree could be passed against his client on the ground that his tenancy had been 'ipso facto' determined by default in payment of arrears of rent for three consecutive months. His contention is that by reason of the amending Act of November 1950 the whole of the 1950 Act was made to apply to pending suits and as the 1950 Act did not permit of ejectment on the ground of 'ipso facto' determination of the tenancy no decree for ejectment could be made against the tenant in this case.

17. Mr. Meyer relied on Section 5 of the amending Act of 1950 and stressed the words

'in all suits referred to in Sub-section (5) of the said section which are pending at such commencement, 'the said Act as amended by this Act' shall apply and shall be deemed always to have applied.'

Mr. Meyer's argument is that to the suits referred to in Sub-section (5) of Section 18 of the 1950 Act, that is suits pending when that Act came into force, the 1950 Act as amended by the amending. Act was to apply and was to be deemed always, to have applied. In short his argument is that after the amendment of the 1950 Act by the amending Act of November 1950, the whole of the 1950 Act as amended was made applicable to pending suits and no decree could be passed against the tenant on the ground of 'ipso facto' determination, but could only be passed against him on the grounds provided in the 1950 Act as amended.

18. There can be no doubt whatsoever that Section 5 of the amending Act of 1950 is not very happily worded and is capable of the construction placed upon it by Mr. Meyer. However, if that construction is placed upon Section 5, then it would defeat the whole purpose of that sectionand indeed of the amending Act, The purpose of the amending Act was to nullify the effect of the decision in -- 'S.B. Trading Co., Ltd. v. Satyendra Chandra Sen', (86 Cal. L. J. 46) cited above and to enable the courts to grant relief to tenants whose tenancies had been 'ipso facto' determined by reason of default in payment of rent for three consecutive months. If Mr. Meyer's contention be accepted then the amending Act is wholly 'unnecessary because no decree could be made at all against such defaulting tenants.

19. It seems to me that a construction must be given to this section which would give effect to the amending Act rather than render it wholly useless verbiage, if such a construction can reasonably be given to the words in Section 5. It seems to me that on a true construction of Section 5 of the Amending Act all that was intended was that the amended definition of 'tenant' and the substitution of the words in Section 18(5) were to apply to all suits pending at the time when the original 1950 Act came into force. There was possibly no need for the concluding words of the section, namely, 'and shall be always to have applied' unless they were put in to meet a possible argument that the amendment would have no effect during any period before the date when the amending Act came into force, namely, November 30, 1950. The words 'and shall be deemed always to have applied' make it abundantly clear that the Act as amended shall apply as if the amendment was in the original Act as passed on March 31, 1950.

20. When the Court sees the purpose of the amending Act and sees from the earlier sections what the Legislature intended to do, it seems clear that Section 5 must be read as meaning that such portion of the Act of 1950 as was amended by the amending Act of 1950 shall apply to suits pending when the 1950 Act came into force and shall be deemed always to have applied to such suits. It is true that we are cutting down the full meaning of the words 'the said Act as amended shall apply and shall be deemed always to have applied'. But it seems to me we are bound to do that to give the amending Act any meaning and purpose (whatsoever. It is a legitimate method of construction to give an Act a meaning if that can (foe done reasonably. Too literal a construction should not be followed when it leads to an absurdity if a somewhat more liberal construction would lead to an effective application of the Act. What the Legislature clearly had in mind here were the original provisions of Section 18(5) and they were not concerned with the other portions of the Act of 1950. Section 5 of the amending Act provides that Section 18(5) of the 1950 Act as amended would apply to all pending suits and would always be deemed to have applied and there was no intention whatsoever to make applicable to such suits any other provisions of the 1950 Act.

21. The view which I take was the view taken by the learned Judge in the court below and I have no hesitation in holding that the learned Judge arrived at a correct conclusion on this matter.

22. Mr. Meyer also endeavoured to argue that after the 1950 Act came into force and even before the amending Act of 1950 no suit could be brought against a person whose tenancy had been 'ipso facto' determined underSection 12(3) of the Rent Control Act of 1948. He urged that the opening words of Section 12 of the 1950 Act showed that it was the intention of the Legislature that that Act should be retrospective. Mr. Meyer placed reliance on the words:

'Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired: Provided that nothing in the sub-section shall apply to any suit for decree for such recovery of possession'

where certain facts exist.

23. Mr. Meyer's contention was that the words 'notwithstanding anything to the contrary in any other Act or law' show that this Act was intended to govern all cases whether such had been filed or decided before or after the Act came into force and that the Act was clearly made retrospective and would, therefore, apply to pending cases. The 1950 Act admittedly did not allow a suit to be brought on the ground of 'ipso facto' determination of a tenancy. Therefore, it is said that the suit before the learned Judge was bound to be dismissed.

24. I can see nothing in the words relied upon by Mr. Meyer as suggesting that this Act should be given retrospective effect. The Court leans against giving an Act retrospective effect and will only give it such effect if it is compelled to do so by express words in the statute or where retrospective effect is clearly to be implied from the words of the statute.

25. So far from the provisions of this statute suggesting that they should have retrospective effect, the provisions I think clearly suggest the contrary. Why should it have been necessary to enact Section 18(5) if the whole Act was to have retrospective effect? The Act would have applied to these suits and applied with full force; Section 14 of the Act which provides for relief would have been applicable. Yet we find that Section 18(5) was enacted which expressly provides that a limited relief will be given to tenants in suits pending when the Act came into force. It is provided that in such cases the Court shall exercise the powers of granting relief against ejectment given by Section 14 of the Act following the provisions and procedure of that section as far as may be necessary for the said purpose. The court is enjoined to give effect to Section 14 as far as possible in such suits. But if the Act had been retrospective the court would have been bound to give full effect to Section 14 in all such suits. It appears to me that the existence of Section 18(5) in the Act of 1950 makes it clear that the Act was never intended to be retrospective and was only to have such retrospective effect as was expressly given to it in the statute itself. That being so there is no force in this contention.

26. Mr. Meyer then contended that if the Act of 1950 applied to suits based on 'ipso facto' determination of the tenancy under Section 12(3) of the 1948 Act then he should be granted relief. The learned Judge in the court below had held that the tenant was not entitled to relief because even after the amending Act came into force on November 30, 1950 he had defaulted for over six consecutive months. According to the learned Judge's view such defaultprevented the court from giving him any relief under Section 14 of the Act and it will be remembered that in giving relief in pending suits the Court must apply Section 14 as far as it can. Section 14 of the Act provides for granting relief to tenants. But there is a proviso to Sub-section (3) which is in these terms:

'Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in Clause (i) of the proviso to Sub-section (1) of Section 12 on three occasions within a period of eighteen months.'

27. The learned Judge's view was that as the Act of 1950 was only made applicable to persons whose tenancies had been 'ipso facto' determined by the amending Act which came into force on November 30, 1950 the only default of the tenant which could be regarded was default after November 30, 1950. He held, however, that after that date no rent whatsoever had been paid or tendered up until the date of the decree namely September 6, 1951. There was, therefore, at least eight consecutive months' rent in arrear and in the view of the learned Judge the proviso to Sub-section (3) of Section 14 made it quite impossible for him to afford any relief.

28. Before the learned Judge it had been argued on behalf of the landlord that the Court could look not only at what occurred after the amending Act came into force, but could look at what occurred before the suit was ever filed. When this suit was filed the tenant had admittedly defaulted for a matter of eleven or twelve consecutive months and it was urged on behalf of the respondent that the default of eleven or twelve consecutive months before the suit made it impossible for any relief to be granted. The learned Judge as I have said, took the view that the default must occur after the amending Act came into force and that he could not take into account any defaults before the date of the amending Act.

29. I am not satisfied that the view of the learned Judge is right on this question. Admittedly Section 14 of the Act of 1950 cannot be literally applied in suits filed before the 1950 Act came into force. The opening words of Section 14 make it clear that it can only apply to suits filed after that Act came into force. The opening words of Sub-section (1) are:

'If in a suit for recovery of possession of any premises from the tenant the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 12 the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effectthereof upto the date of the order mentioned ...............'

30. It is quite clear that the section in terms only applies to suits brought after the Act came into force and, therefore, the section cannot be applied strictly and literally to any suits filed before the Act came into force, that is to suits pending when the Act came into force. That appears to me to be the reason why in Section 18(5) of the Act the Court is enjoined to exercise the powers of granting relief against ejectment given by Section 14 following the provisions and procedure of that section as far as may be necessary and fpr the said purpose. Itwas realised by the draftsman of Section 18(5) that Section 14 of the Act as drafted could not apply and, therefore, the Court is enjoined to apply the provisions of Section 14 as far as possible to give relief.

What was intended I think was that the Court' under Section 18(5) of the 1950 Act should apply the principles underlying Section 14 of the Act and apply those principles as far as possible to a case to which Section 14 could not in terms apply. One of the principles upon which Section 14 is built is that there are certain defaults (sic) no relief can be given. It is quite clear that thus if a suit was brought after the 1950 Act came into force and the tenant had been in default in the payment of rent for eleven or twelve consecutive months after the Act came into force and before the suit was instituted no relief could possibly be given to him under Section 14.

It seems to me that that rule must be applied as far as possible to suit filed before the Act came into force and, therefore, when it is found that in such suits there was default for eleven or twelve consecutive months before the suit was brought then the result should be the same as if those defaults had occurred after the 1950 Act had come into force and were relied upon in a suit under that Act. It appears to me that what the Court has to do is to apply the provisions of Section 14 as far as it can to a suit to which the provisions cannot literally apply. If that be so it appears to me that the default in this case is fatal because a similar default, if the suit was really governed by the 1950 Act, would have been fatal and no relief could have been given under Section 14. That is in my view sufficient to dispose of this question of relief.

31. However, if the view that I am inclined to take is not the correct view and the view of the trial court which is also supported by a single Judge decision of Roxburgh J., is the correct view the result will be the same. Assuming that all that the court could regard was any default after the date of the amending Act then as I have already pointed out, there was default in the payment of eight or nine consecutive months' rent and that would be sufficient to bar any relief under the proviso to Section 14(3), applying that proviso strictly.

32. Mr. Meyer, however, contended that he could not possibly be held to have defaulted in the payment of rent because the case against his client was that his tenancy had been 'ipso facto' determined and, therefore, no question of rent could arise. However, by the amending Act of 1950 he was given certain relief provided that he did not default in the payment of rent. Mr. Meyer urged that he could not pay rent because the landlord treated him as a trespasser and that there was no provision at all which would have allowed him to deposit the rent in court after the amending Act came into force.

33. Mr. Meyer has overlooked the provisions of Section 19 of the 1950 Act. The moment the amending Act came into force Mr. Meyer's client could have deposited the rent in the court of the Rent Controller. There is no force in his contention that the landlord no longer treated him as a tenant and would not accept rent. He could have tendered the rent to the landlord and if the latter had refused to accept it he could then have deposited the rent in the Court of the Rent Controller. That is clearfrom Sub-section (1) of Section 19 of the 1950 Act. The moment the 1950 amending Act gave him a right to relief if he was not guilty of certain defaults he could have tendered rent and then deposited the rent with the Rent Controller if the tender had been refused. Had he done that there would have been no default if the view of P.B. Mukharji J. is the right view as to the applicability of the proviso to Sub-section (3) of Section 14. However, he tendered nothing and deposited nothing. So even if the view of P. B, Mukharji J. be right there is still a default which debars the Court from giving the tenant any relief under Section 18(5) read with Section 14 of the 1950 Act. It follows, therefore, that it is immaterial which view is accepted as to what defaults can be taken into account. On either view the defendant was guilty of such default as debarred him from any relief under Section 18(5) read with Section 14 of the Act. That being so the suit of the landlord was rightly decreed by the learned Judge.

34. The appeal, therefore, must fail and is dismissed with costs. Certified for two Counsel.

Banerjee, J.

35. I agree.


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