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Amal Krishna Basu and ors. Vs. Chandi Charan Banerjee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 281 of 1952
Judge
Reported inAIR1953Cal145,56CWN528
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 14(1) and 14(3)
AppellantAmal Krishna Basu and ors.
RespondentChandi Charan Banerjee
Appellant AdvocateSitaram Banerjee, ;Arun Kumar Dutt and ;Bejoy Bhose, Advs.
Respondent AdvocateAjit Kumar Dutt and ;Rameswar Saha, Advs.
Cases ReferredKrishna Gopal v. Banerjee Mukherjee
Excerpt:
- .....cause of action had arisen'. in this view chunder j., finding that in that case not more than 4 months' rent was in arrear before the suit was filed, discharged the rule obtained by the landlord. when the question came up before roxburgh j. in -- 'krishna gopal v. banerjee mukherjee & co.', civil revn. case no. 769 of 1951 (cal), he rejected the contention that the relief provided in section 14 is not open to the tenant because during the suit he has failed to continue to pay or deposit the rent and held that only defaults from before the suit could be considered for the purpose of this proviso.my learned brother lahiri j. had to consider the same question in -- 'second appeal no. 1031 of 1951 (cal)' and came to the same view that the defaults that have to be considered for the.....
Judgment:

K.C. Das Gupta, J.

1. This Rule was obtained by the plaintiffs landlords in a suit for ejectment against an order passed by the Sixth Judge of the Court of Small Causes, Calcutta, directing under Section 14 (1), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the tenant defendant to pay Rs. 5057/14/- by 28-1-1952. This was the amount which the learned Judge found due on account of arrears and interest on calculation in accordance with the provisions of Section 14 (1). The suit was filed by the plaintiffs on 10-10-1950 on the allegation that prior to that date there had been defaults in the payment of arrears of rents from May. On 5-12-1950, the defendant appeared and filed an application for an order under Section 14 (1). This application was disposed of fay the learned Judge on 17-3-1951 by an order which is in these words.

'On the defendant's prayer but without prejudice to the plaintiff, all arrears of rent up to February 1951 with legal interest, costs of the suit and half pleader's fee is determined at Rs. 2920/4/-. Defendant is permitted to deposit this amount within 15 days from date. This order is made without prejudice to the plaintiff and to the decision of the question of admissibility of relief under Section 14 (1) at the time of hearing of the suit.'

2. The amount was not deposited, and the hearing of the suit proceeded. Finally on 11-1-1952 the learned Judge being of opinion that the defendant was entitled to an order under provisions of Section 14 (1), passed an order as mentioned above. The first ground on which this order is challenged is that there having been already an application under Section 14 (1), on 5-12-1950 on which an order was actually passed on 17-3-1951, the Court had no jurisdiction to pass a further order in terms of Section 14 (1) of the Act. Whatever might be said for the proposition of law that once an order is passed under Section 14 (1), the Court has no power to pass, after that order has been disobeyed a further order under the provisions of the same Section, it is not necessary for us to consider that question here. The position here is that the Court did not in fact pass an order under Section 14 (1). Mr. Banerjee has contended that the terms of the order were in substance under the provisions of Section 14(1). If there had been no saving words used by the learned Judge that the order was without prejudice to the determination of the question whether Section 14(1) was applicable or not, we might have accepted this contention. In view of the clear words used by the learned Judge, we have come to the conclusion that he did not decide whether Section 14 (1) was applicable and did not purport to pass an order under the provision of that section. The first ground, therefore, fails.

3. This brings us to the next contention urged by Mr. Banerjee. This is that as at the date the present order was passed, the tenant had been in default in payment of rent from May 1950 to December 1951, the proviso to Section 14 (3), is a bar to the defendant getting any benefit under the provision of Section 14. The proviso is in these words:

'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.'

The question really is from what date this period of 18 months has to be calculated. If the 18 months are calculated from the date of the suit, there has been in this case no such default on three occasions but only defaults on two occasions. If on the other hand the 18 months are to be calculated as from the date of the order that is passed, there have been defaults on many more than three occasions.

4. This question came up for consideration in several cases before this Court by Judges sitting singly. Chunder J. decided in a case which has not been reported -- 'Civil Revision Case No. 877 of 1951 (Cal)' that

'the six months' default that would be necessary to deprive the tenant of his protection would be before the suit is filed as that is when the cause of action had arisen'.

In this view Chunder J., finding that in that case not more than 4 months' rent was in arrear before the suit was filed, discharged the Rule obtained by the landlord. When the question came up before Roxburgh J. in -- 'Krishna Gopal v. Banerjee Mukherjee & Co.', Civil Revn. Case No. 769 of 1951 (Cal), he rejected the contention that the relief provided in Section 14 is not open to the tenant because during the suit he has failed to continue to pay or deposit the rent and held that only defaults from before the suit could be considered for the purpose of this proviso.

My learned brother Lahiri J. had to consider the same question in -- 'Second Appeal No. 1031 of 1951 (Cal)' and came to the same view that the defaults that have to be considered for the purpose of this proviso to Section 14, were the defaults prior to the date of the suit. He observed:

'The proviso to Section 14 takes away the right of the defendant to claim protection from eviction under the Act of 1950 and this right must in my opinion be determined by the state of things as they existed on the date of institution of suit.'

5. With great respect I think that this is the only possible view that can be taken on the language used in the Statute. It is also helpful to consider in this connection the words used in Section 14 (1). They, in my judgment, cast a duty on the court to take action under Section 14. The words of Sub-section (1) may usefully be set out here:

'If in a suit for recovery of possession of anv 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 effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three-eighths per centum per annum from the day when the rents became arrears upto such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.'

This sub-section does not say that this is to be done by the Court only on an application. It is interesting to notice that in Sub-section (4), on the other hand, there is definite provision for an application by the landlord and an order thereupon. The omission in Sub-section (1) of the provision of any requirement for an application by the tenant cannot but be considered to be deliberate. In my judgment the legislature made it the duty of the Court to determine as soon as possible after the suit was filed, the amount of rent legally payable, any arrears. the amount of interest and the costs and then to -make an order on the tenant for paying the aggregate of the amounts before a fixed date. If the view pressed on behalf of the petitioners by Mr. Banerjee that for the purpose of the proviso, all defaults during the 18 months preceding the date of the order has to be considered is to be accepted, it would mean that by the mere fact of the court's delay in considering the matter, the tenant might be deprived of the valuable right.

It seems to me entirely unreasonable to hold that the question whether the tenant would get the benefit of this provision under Section 14 would depend on such a variable factor as the date when the Court finds it convenient to consider the matter. If the Legislature had not cast any duty on the court to determine this matter, other considerations might have arisen. As, in my judgment, there is clearly a duty cast on the Court to determine the amount due and to pass an order under Section 14 (1) and as obviously this duty must be carried out as soon as possible after the date of the institution of the suit, the period of 18 months that can be considered by the Court must be the period of 18 months preceding the date of the suit. On all these considerations I have come to the conclusion that the correct position in law is that the period of 18 months that has to be considered for the purpose of proviso to Section 14 (3), West Bengal Premises Rent Control Act, is the period of 18 months preceding the date of the institution of the suit. Both the objections taken on behalf of the petitioners fail.

6. I would, therefore, discharge the Rule with costs.

Lahiri J.

7. I agree.


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