P.B. Mukherji, J.
1. This is a suit by the plff. for the recovery of possession of the first floor & the three rooms in the ground floor in premises No. 60, Harrison Road, Calcutta, in the occupation Calcutta 391 of the deft. Co. & for a decree for the sum of Rs. 3,400/- on account of arrears of rent & for mesne profits.
2. The plff's. case is that the deft. co. was a monthly tenant in respect of the said premises at a rent of Rs. 200/- per month commencing from the month of August 1943. On 16-9-1943 the deft. Company paid a sum of Rs. 200/- as advance payment of rent. On 15/16-1-1945 the plff. gave a notice to the deft. Company to quit & vacate the said premises on the expiry of the month of January 1945. The plff. claims Rs. 3,600/-out of which he has given credit for the advance payment of Rs. 200/- making a total claim of Rs. 3,400/- only being rent at Rs. 200/- per month from August 1943 to January 1945.
3. The deft, filed its written statement & has taken a number of points therein. In the first instance the deft. Company pleads that it was not a tenant but a licensee & secondly it pleads In para. 10 of the written statement that even if it is a tenant it is entitled to protection from ejectment under the provisions of the Calcutta House Rent Control Order, 1943.
4. Mr. Samarendra Nath Sen who appeared for the deft. Co. gave up most of the points taken in the written statement & has raised the following issues only: (1) Is the suit maintainable in the absence of permission of the Rent Controller under the Calcutta House Rent Control Order, 1943? (2) Has the deft, paid all rents allowable under the Rent Act, 1948?
5. Mr. Niren De appearing for the plff. accepts these issues & called the plff. as the only witness. Mr. Sen has called no witness on behalf of the deft. The only witness Mr. Sen could have called as it now transpires from evidence was Mr. Balal Sen the Director but he is dead.
6. Issue No. 1: Mr. Sen has argued that under Section 9-B, Calcutta House Rent Control Order, 1943, this Court cannot entertain the suit on the ground that no permission was obtained from the Rent Controller by the plff. in this suit for ejectment for non-payment of rent. I cannot accept that argument. The suit was filed on 24-2-1945 & the written statement was filed on 12-4-1945. Section 9-B, Calcutta House Rent Control Order, 1943, was not in existence on those dates but it came into operation on 28-8-1945. In any event the suit in my opinion is not hit by the provisions contained in that section. While that section existed it provided:
'Where any such suit or proceeding by a landlord is pending in any Court on 29-8-1945, no decree or order for the recovery of the possession of the house shall be made by such Court on such ground unless the landlord has been permitted by the Rent Controller to prosecute the suit so pending.'
The law is no longer in operation. While that law was in force the Court did not make any order or decree for possession. The law that now governs the passing of a decree or order for possession is contained in Section 11, West Bengal Premises Rent Control Act, 1948. I therefore hold that in this suit the absence of the permission of the Rent Controller is no bar & the suit is maintainable.
7. Issue No. 2: Mr. Niren De for the plff. has argued that the deft. Co. has not paid 'to the full extent the rent allowable by this Act', i.e., the West Bengal Premises Rent Control Act, 1948.
8. His point is that Rs. 200/- was kept as rent in advance & the deposit of Rs. 3,400/- instead of Rs. 3,600/- with the Rent Controller was not sufficient. It is accepted on both sides that a sum of Rs. 3,400/- deposited by the deft. Co. with the Rent Controller on 16-2-1945 together with Rs. 200/- kept in deposit with the plff. covered the rent for 18 months from August 1943 to January 1945. But Mr. De argues that the moment that is done the advance deposit is exhausted & the sum of Rs. 200/- no longer remains as rent paid in advance. Therefore his argument is that the deft, has not paid 'to the full extent the rent allowable' by the Rent Act. Mr. De has conceded that the deposit with the Rent Controller was in time & he has not made any point that such deposit as was made was in any way out of time. I have held elsewhere in this judgment that this advance of Rs. 200/- at the inception of the tenancy was not a condition & even if it were, it has either been waived or that the deft. is estopped from raising the plea. But I will consider whether the payment in advance of Rs. 200/- can at all be considered to come within the definition & meaning of the expression 'rent allowable' in Section 11 (1) of the Rent Act, 1948.
9. Under Section 4 (b), Rent Control Act, 1948 no person shall in consideration of the grant, renewal or continuance of a tenancy claim or receive the payment of any sum exceeding one month's rent for such premises as rent in advance payable without the previous consent of the Controller. Therefore without such written consent, a landlord can claim & receive one month's rent in advance & such advance is permitted & allowed under the Rent Act.
10. But the question is whether such advance payment is or can be called 'rent allowable by this Act.' The expression 'the rent allowable by this Act' has been defined in Section 14 of the statute. That definition is specially 'for the purposes of Section 11 & Section 12' of the Act. By Sub Section (c) of Section 14 that expression is defined to mean 'rent agreed upon between the landlord & the tenant' subject to any question of standard rent. No question of 'standard rent' arises in this case. In my opinion on a proper construction the words 'the rent agreed upon between the landlord & the tenant' in the context of Section 14 of the Act & particularly having regard to the question of standard rent stated therein mean the specific & periodic sum that is payable by the tenant & does not mean deposits or advances or securities taken in the name of rent but in fact in the nature of security for payment of such periodic sum.
11. If this were not the construction then While under Sub Sections (a) & (b) of Section 14 of the Act, the tenant will obtain immunity from ejectment by paying only the standard rent (which can be a monthly concept as a reference to the statute & particularly to Part A of the schedule to the Act will show) inspite of the fact that in those cases there may be an agreement for payment of one month's rent in advance whereas under Sub Section (c) of Section 14 of the Act, the tenant will not only have to pay the periodic monthly rent agreed upon, between the landlord & the tenant, but also the advance payment of rent contended as 'rent agreed' between the parties. That will be in my opinion creating a difference in principle between Sub Sections (a) & (b) on the one hand & Sub Section (c) on the other for which I find no justification. Such a difference will mean that in case where the monthly rent is standardised, the tenant cannot be ejected if he pays only that monthly rent but in the other case he cannot resist ejectment if he pays the monthly rent & does not pay In addition a rent in advance which may be the agreement of parties.
12. The construction which I adopt is in accord with the definition of the word 'Rent' under Section 105, T. P. Act. Rent under Section 105, T.P. Act means a consideration of a price paid or promised or of money, etc., 'to be rendered periodically or on specified occasions.' One of the characteristic indicia of rent is in my opinion the periodicity or the recurring character of payment on specified occasions. Payment of a sum of money in advance has not in the facts of this case, that periodic or recurring character. There is no definition of 'Rent' under the West Bengal Premises Rent Control Act, although there is a definition of 'Standard Rent.' I am therefore entitled to consider & apply in this context the definition of 'Rent' as given by the T. P. Act.
13. The classic exposition of the nature & character of payment of rent in advance is contained in the judgment of Willes, J., in 'De Nicols v. Saunders', (1870) 5 C. P. 589 at p. 594, which has been followed by the Ct. of Appeal of this Court in 'Tiloke Chand v. J. B. Beattie & Co.,' 29 C. W. N. 953 at pp. 961-962. Willes, J., at p. 594 of the Report I have mentioned, observes as follows:
'Payment of rent before it is due is not a fulfilment of the obligation imposed by the covenant to pay rent but is in fact an advance to the landlord with an agreement that on the day when the rent becomes due such advance shall be treated as a fulfilment of the obligation to pay the rent.'
That learned Judge observes that when rent is paid in advance the agreement is implied that the landlord will appropriate such advance, when the rent becomes due. It is of course different, where by the terms of a lease or a tenancy rent is pay able every month in advance but that is not the case here. In Woodfall's well-known work on Landlord & Tenant 24th Edn. p. 324 the law is stated in the following terms:
'Payment before the day is voluntary & a payment of a sum in gross & no satisfaction at law of the rent.'
For these reasons, I am of the opinion that the failure to deposit Rs. 200/- as advance rent on the facts of this case does not disentitle the deft, to the protection offered by Section 11 (1) West Bengal Premises Rent Control Act, 1948, & I therefore answer issue No. 2 in the affirmative.
14. Mr. De at the last stage of his argument seemed to suggest that the advance payment of rent of Rs. 200/- was a 'condition' of the tenancy & its non-payment was a breach of such condition. He did not raise any issue regarding condition. But none the less I propose to deal with this question.
15. Advance payment of rent of Rs. 200/- has not been pleaded in the plaint as one of the 'conditions of the tenancy.' The words 'conditions of the tenancy' also appeared under Section 9 (1) of the Calcutta House Rent Control Order, 1943 when the plaint was filed & if ejectment was sought on the ground of non-performance of the condition of tenancy, it should have, in my opinion, been pleaded that advance payment of a month's rent was a condition of the tenancy & that condition was not performed. In para. 1 of the plaint the terms of tenancy pleaded are that the tenancy was a monthly tenancy & that the rent was at the rate of Rs. 200/- per month & a description of the area of tenancy. It does not plead that payment of Rs. 200/- as advance was a condition of the tenancy. Para. 3 of the plaint only states the fact that a sum of Rs. 200/- as advance payment of rent was made on 16-9-1943. But even there, it does not state that such payment was a condition of the tenancy. On the oral evidence which was given by the plff. at the trial I am not satisfied that the payment of Rs. 200/- as advance was agreed to be a condition of the tenancy. (His Lordship considered the evidence and concluded.) On the oral evidence, on the letters and on the pleadings I hold that payment of advance rent was not a condition of the tenancy and in any event even if it were, the plff. in my opinion, is estopped from raising this plea.
16. In my judgment the suit fails & is dismissed with costs.