1. The appellant, who is a tenant of a shop room in the town of Mymensingh, was required by a notice dated 6-8-1943 to quit the premises by 31st day of the month. He did not comply and thereupon a suit was brought for his ejectment on 3-9-1943, which was decreed on 26-4-1944. An appeal against this decree was dismissed on 10-11-1944. Execution of the decree was commenced on 23-4-1945, but was met by the appellant with an objection under Section 47, Civil P.C., which was based on para. 10A(2), Bengal House Rent Control Order. It was contended that in view of the provisions of Para. 10A(2), the decree could not be executed without the permission of the Rent Controller which, admittedly had not been obtained.
2. The executing Court gave effect to this contention and directed that the proceedings must be stayed till the decree-holder produced proof of the Rent Controller's permission. On appeal, the lower appellate Court held that para. 10A(2), House Rent Control Order, had no application to the facts of the present ease and in that view dismissed the appellant's objection under Section 47, Civil P.C. The present appeal is directed against that order.
3. The respondent decree-holder, while founding his suit on the notice to quit, stated in the plaint that he had served such notice inasmuch as he required the premises for his own use. At the end of the plaint he added a series of statements one of which was to the effect that the appellant was in default for a period of over two years for which a separate suit would be brought.
4. The ground upon which the trial Court allowed the appellant's objection was that the case came directly within the language of para. 10A(2), Bengal House Bent Control Order, since the decree had been obtained on the ground that the landlord required the premises for his own use and since it had been obtained before 6-7-1944, the relevant date under Para. 10A(2). It was held further that para. 10A(2) was not controlled by Para. 10(4), so that even if the appellant was a defaulter, as the respondent contended he was, that circumstance would not exclude the appellant from the benefit of the former provision.
5. The ground upon which the lower appellate Court reversed this order was that at the date the decree was passed, there could be no question of its being passed on the ground of the requirement of the premises by the landlord for his own use. If, however, the ground of the decree could properly be ascertained from the plaint, the learned Judge pointed out that the plaint in the present case contained a reference not only to the requirement of the landlord but also to default and, therefore, the decree, he thought, must be deemed to have been passed as much on the latter ground as on the former. The learned Judge added that in his view Para. 10A(2) could not possibly apply to any case and that, in any event, it was a question whether it could apply in the present case, since the appellate decree, which was the final decree was passed not before but after 6-7-1944.
6. In the present appeal by the tenant, it has been contended by Mr. Bagchi that since both the notice to quit and the plaint referred to the requirement of the premises by the landlord, the decree must be deemed to have been passed on that ground, and that it cannot be deemed to have been passed on the ground of default since in view of the provisions of Para. 10(4), Rent Control Order, his client could not be held to have been in default on the date of the decree.
7. In the next place, it has been contended that in any event the Court should have determined under the provisions of para. 10C whether the decree, such as it was, would have been passed, if the Rent Control Order had been in force at the time and in such enquiry it should have been ascertained on what grounds the decree had been made. Since the Courts below had failed to determine this matter, it was prayed that a remand should be made for the purpose, as was done in Nanda Lal Roy v. Suresh Chandra Sen ('46) 33 A.I.R. 1946 Cal. 113.
8. Before dealing with this contention, it is necessary to refer briefly to the history of the Bengal House Rent Control Order and to certain of its provisions. The order was first promulgated on 20-2-1942, and was brought into force by a Notification dated 31-8-1942, with effect from the date on which the latter Notification would be published in the Calcutta Gazette. 'House' was defined in Section 2(2) as 'a building or part of a building suitable for occupation as a residence.' It is clear that a shop room was not included. Again, the order, as it then stood, did not deal with suits for ejectment at all, but only provided by para. 10 that a tenant in possession might obtain an extension of the term of the tenancy under certain conditions. If the landlord objected to the extension, he had to satisfy the Rent Controller of the existence of certain reasons and among the reasons specified were that the lessor required the premises for his own use and that the tenant was not performing the conditions of the tenancy. This was how the order stood even after its amendment by the Notification, dated 25-6-1943.
9. The next amendment was made by Order No. 11658 L.R., dated 3-7-1944, and came into force on 6th July following. The definition of 'house' was now enlarged to mean 'any building or part of a building or hut let or to be let separately for residential or non-residential purposes.' By this, amendment, para. 10 was entirely recast and brought into the form with which we are concerned in the present case. A series of new paras. 10A to 10E, were also added. Paragraph 10(1) provided that no decree or order for recovery of possession of any house should be made, so long as the tenant paid the full rent allowable by the order and performed the conditions of the tenancy. It was added by way of a proviso that this provision would not apply if, to quote only the relevant exception contained in Clause (c), the landlord required the house for his own use or could show any cause which might be deemed satisfactory by the Court. Subparagraph (4) of para. 10 enacted an exception in another form and provided that no tenant would be entitled to claim the benefit of the paragraph unless he paid the allowable rent within the time fixed by the contract or, where there was no contract by the 15th day of the next following month and, where any rent had accrued due before 6-7-1944, unless He also paid all arrears of the allowable rent within three months from that date.
10. Two other provisions must in this connection be referred to. Paragraph IOA (2) provided that where a decree or order for recovery of possession of a house from a tenant had been made 'on any of the grounds specified in Clause (e) of the proviso to sub-para. (1) of para. 10 on or before 6-7-1944,' but possession had not been recovered, execution of such decree or order must be stayed till the decree-holder produced proof that he had been permitted by the Rent Controller to recover possession of the house. Paragraph 100 provided that where possession had not been recovered before 6-7-1944, the Court which had passed the decree or order, might vary or rescind it, if it was of opinion that such decree or order would not have been made, if the provisions of the Rent Control Order had been in operation on the date of its passing.
11. It will appear, as indeed was recognised by Mr. Bagchi, that para. 10A(2) cannot apply, unless the decree for ejectment was passed against the appellant on any of the grounds specified in Clause (c) of the proviso to para. 10(1). In my view, not only does para. 10A(2) not apply to the present case, but it cannot possibly apply to any case whatever. Under the subparagraph, the decree must be passed on or before 6-7-1944. But it was only on that date that para. 10, as it now stands, first came into force with its provisos to sub-para. (1) and it was on that date that there were introduced for the first time the considerations specified in the proviso, to which regard must be paid in passing a decree or order for ejectment. Before 6-7-1944, the grounds enumerated in Clause (c) of the proviso, or indeed in any of the other clauses, were utterly irrelevant in a suit for ejectment and no decree or order could be passed on the ground that those circumstances existed. The decree would be based on one or other of the grounds mentioned in the Transfer of Property Act and those grounds do not include any of the grounds mentioned in the proviso to Para. 10(1). It would be futile therefore to look for a decree which was passed before 6-7-1944, and yet passed on one of the grounds specified in the proviso. That being so, the provisions in Para. 10A(2) contemplate decrees which could not possibly exist in fact and no decree is conceivable to which the paragraph might apply, except in the wholly unlikely case where the decree was passed on 6-7-1944, and before it was actually passed, the Court was apprised of the fact that the new provision, contained in Para. 10, had come into force on that very date. In the present case, the decree was passed on 26-4-1944, and it is quite clear that' there was no possibility of its being passed on one of the grounds mentioned in Clause (c) of the proviso.
12. From what I have stated above, it will appear that para. 10A(2) is a wholly purposeless enactment or, if there was a purpose, it has not been successfully adjusted to actual or possible facts. This position has resulted, because Paras. 10 and 10A were lifted bodily from the Calcutta House Rent Control Order, as it stood then, and the only change made was that the relevant date was altered from 27-5-1944, into 6-7-1944. In the Calcutta Order the corresponding provisions are Paras. 9 and 9A, but in adopting them, no notice was taken of the fact that Para. 9 was a part of the original enactment and came into force on 22-6-1943, while para. 9A was introduced subsequently by an enactment on 19.5-1944 and came into force on 22nd May. There having been an interval in the case of the Calcutta Order between the enactment of Paras. 9 and 9A, there could be a decree to which Para. 9A (2) would apply, that is, a decree passed before 22-5-1944, on one or other of the grounds mentioned in Clause (c) of the proviso to para. 9(1). In the case of the Bengal Order, paras. 10 and 10A having been enacted simultaneously and having come into force on the same day, that is 6-7-1944, there could not possibly be any decree on the grounds specified in Clause (c) of the proviso, except in the one case I have mentioned, the possibility of which is merely theoretical.
13. I am therefore of opinion that the appellant in the present case is not entitled to rely on the bar of Para. 10A(2). There is a yet more fundamental reason why he cannot do so. As I have pointed out already, 'house', as defined in the Bengal House Rent Control Order as it stood! at the date when the decree was passed, did not include a shop room and the Order itself did not refer in any way to any suit for ejectment. It follows that on 26-4-1944, when the decree in the present case was passed, the Bengal House Rent Control Order or any grounds mentioned therein could not possibly have been in the contemplation either of the parties or of the Court in connection with this particular suit.
14. The reference made by the learned Advocate for the appellant before me, and by the Courts below, to the plaint in the suit appears to me to have been entirely misconceived. Paragraph 10A(2) speaks of 'a decree or order made on any of the grounds specified in Clause (c) of the proviso to Para. 10(1),' and not of the grounds on which the ejectment was claimed. Even assuming that the grounds mentioned in Clause (c) of the proviso could have been grounds of a decree for ejectment before 6-7-1944, what is to be ascertained is the ground on which the Court passed the decree and not the ground on which the plaintiff claimed ejectment. Reference must therefore be made, if at all, to the judgment and decree and not to the plaint. I have looked into the judgment and the decree in the present case and, as was to be expected, the ground for the decree is that the tenancy had been terminated by a valid notice to quit.
15. I have so far assumed that the proviso to para. 10(1) deals with grounds of a decree for ejectment and on that assumption Mr. Bagchi pointed out that Clause (c) of the proviso contained another ground, namely 'where the landlord can show any cause which may be deemed satisfactory by the Court.' This ground, he contended, would cover any decree for ejectment inasmuch as whatever the ground might be, it must have been a ground which the Court deemed satisfactory, and therefore the decree would be one passed on a ground mentioned in Clause (c) of the proviso and Para. 10A(2), would necessarily apply.
16. The fallacy of this argument is, in my view, obvious. The Bengal House Rent Control Order did not create any new causes of action for the landlord and the circumstances mentioned in the proviso to para. 10(1) are not grounds for ejectment. The grounds remain what they were under the Transfer of Property Act. The House Rent Control Order merely furnishes a new defence to the tenant; and the circumstances mentioned in the proviso to para. 10(1) are merely exceptions to that defence. They are exceptions to the rule that no decree or order for ejectment shall be passed against a tenant so long as he performs the conditions of the tenancy and pays the allowable rent. The only effect of the proviso, in my view, is that if, after the landlord had made out a case for ejectment hinder the grounds mentioned in the Transfer of Property Act, the tenant sets up the House Rent Control Order as a bar, then, in spite of the House Rent Control Order and in spite of the fact that the tenant may have been regularly paying his rent, a decree for ejectment shall be passed, if one or other of the grounds mentioned in the proviso to para. 10(1) is proved to exist. The circumstances mentioned in the proviso only exclude the tenant from the benefit of the order, but do not furnish the landlord with any grounds for ejectment. No one, for example, could obtain a decree for ejectment to-day by merely proving that one or other of the circumstances mentioned in the proviso existed, without establishing a right to ejectment under the Transfer of Property Act.
17. When, therefore, Clause (c) of the proviso speaks of any cause which might be deemed satisfactory by the Court, it does not speak of grounds for ejectment as such, but merely of reasons which the Court might be persuaded to pass a decree in spite of the House Rent Control Order. The argument that a decree passed on any ground whatsoever is a decree passed on a ground satisfactory to the Court within the meaning of Clause (c) of the proviso and, therefore, a decree within the meaning of para. 10A(2) is, in my view, utterly untenable.
18. Indeed, it seems to me that when paragraph 10A(2) speaks of a decree 'made on any of the grounds specified in Clause (c) of the proviso,' it uses inexact language. As I have pointed out already, the circumstances mentioned in the proviso are not grounds for ejectment. The word 'grounds' fin para. 10A(2) must, therefore, be understood simply to mean the reasons for which the Court may have passed a decree in spite of the House Rent Control Order, and not grounds for ejectment, strictly so-called. It is clear that, even in this sense, the decree in the present case could not be taken to be a decree passed on any ground mentioned in the proviso, for, at the date the decree was passed, there was no necessity whatsoever for overcoming the Bengal House Rent Control Order, which did not then apply to a non-residential house, did not deal with suits for ejectment and did not contain the present para. 10.
19. In view of what I have stated above, it is not necessary for me to deal with the other reason given by the lower appellate Court in support of its decision, which also Mr. Bagchi challenged. That reason is that the decree in the present case might equally be deemed to have been passed on the ground of default. Mr. Bagchi's criticism was that having regard to the provisions of para. 10(4), his client could not be held to have been in default on the date of the decree. Were it necessary for me to decide this point, I would have held against Mr. Bagchi's contention. Paragraph 10A(2) refers to the decree as actually made and the ground of default cannot be excluded, in the case of a decree passed on 26th April 1944, by importing considerations from para. 10(4) which had no existence on that date. Default, however, would be a ground for a decree for ejectment only if, under the engagement between the parties, payment of rent was a condition on a breach of which the tenancy would be forfeited.
20. I do not also consider it necessary to examine the third reason given by the lower appellate Court in support of its decision, namely that the final decree in this case being the decree of the appellate Court and that decree having been passed after 6th July 1944, Para. 10A(2) would have no application. Without desiring to express any final opinion in the matter, I should observe that this ground does not appear to me to be correct.
21. It remains to consider the contention based upon para 10C. That paragraph provides for a rescision or variation of a decree or order, by the Court which made it on a hypothetical extension of the Rent Control Order back to the date on which the decree or order was passed. Clearly, that requires a substantive application in the suit itself and I am unable to see how para. 10C could be set up as a bar under Section 47, Civil P.C., in execution proceedings. It so happens that the executing Court in the present case is the same Court as had passed the decree and that was also the position in the ease cited : ('46) 33 A.I.R. 1946 Cal. 113. But, in that case, an application had actully been made under para. IOC, although it was directed not against the basic decree but against certain orders of the executing Court and it was in those circumstances that their Lordships directed a remand in order to enable the tenant to pray for proper reliefs and the landlord to prove by evidence on what ground he had claimed ejectment. In the present case, no application under Section 10C was ever made, and no contention based on the paragraph was ever raised in the Courts below. If an application under para. 10C is made hereafter, the Court will deal with it in accordance with law, but I do not see how I can grant any relief in this appeal on the basis of para. 10C.
22. My attention was drawn to certain further amendments of the Rent Control Order, published in the Calcutta Gazette of 20th May last and I was informed that the appellant had made an application under the provisions of the new amendment. That is again a matter with which I am not concerned in this appeal. In the result, the appeal, in my view, fails and is dismissed with costs. Leave to appeal under Clause 15, Letters Patent asked for is refused.