Skip to content


Babulal Jewrajka Vs. Sm. Kamala Devi Fatepuria - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 2298 and 2382 of 1952
Judge
Reported inAIR1954Cal145,58CWN84
ActsEvidence Act, 1872 - Sections 3 and 34; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 12, 14 and 14(4)
AppellantBabulal Jewrajka; Sm. Kamala Devi Fatepuria
RespondentSm. Kamala Devi Fatepuria; Babulal Jewrajka
Appellant AdvocateA.K. Sen and ;Pritish Ch. Roy, Advs. (in No. 2298), ;Charu Ch. Ganguly and ;Prafulla K. Chatterji Jr., Advs. (in No. 2382)
Respondent AdvocateAtul Ch. Gupta and ;Ajit K. Dutt, Advs. (in No. 2298) and ;Ajit K. Dutt, Adv. (in No. 2382)
Cases ReferredAjit Kumar v. Surendra Nath
Excerpt:
- .....the amending act retrospectively made the tenant who had defaulted in payment of three months' rent a tenant for the period after he had been in default in payment of rent for three months till the passing of the amending act. when the application came to be considered by the court below, the defendant must be deemed to have been a tenant during that period also. the rent which had accrued due for that period must be regarded as being in arrears in determining the extent of the defendant's liability to pay in terms of section 14(4) of the act. there is therefore no force in the first contention raised by mr. ganguly.7. mr. ganguly also contended that section 14(4) contemplates a suit as is referred to in section 14(1), that section 14(1) in its turn refers to defaults as envisaged in.....
Judgment:

G.N. Das, J.

REVISION NO. 2293.

1. This Rule was obtained by the defendant against an order passed by Sri S. N. Bhattacharjee, learned Judge of the Small Causes, Calcutta.

2. By his order the learned Judge maintained the distress warrant which was issued at the instance of the plaintiff opposite party in respect of rent due for a period of seven months. The defendant was a tenant under the plaintiff. An application was made by the plaintiff for the issue of a distress warrant in terms of Section 53 of the Presidency Small Cause Courts Act in respect of arrears of rent alleged to be due from' the 3rd of May, 1950, to 21st of May, 1951. After the warrant had been executed the defendant filed an application before the learned Judge for lifting the distress warrant. He raised various contentions before the learned Judge which the learned Judge overruled.

In this Court Mr. Sen who has appeared in support of the petition has limited bis contention to one point only, namely, that there is no legal evidence to prove that rent was in arrears for the requisite period. It is the contention of Mr. Sen that the evidence on behalf of the plaintiff shows that rent was realised by the plaintiff durwan. The durwan has not been examined nor has the plaintiff or her son or Laduram to whom, according to the defendant, rent was paid, in order to deny the defence version. The only person who was called was P. W. 1, Sri Kedia, the manager of the plaintiff's estate. P. W. 1 proved certain entries in the account books. He admitted that rent was realised by the durwan and also stated that the account books were written by Laduram in his presence. According to Mr. Sen, this evidence does not legally prove that rent was not paid by the defendant as alleged by them.

Mr. Sen further contended that the entries in the account books by themselves cannot charge the defendant with liability and that in the absence of corroborative evidence the entries are insufficient to prove non-realisation of rent. In my opinion, this contention, though plausible, cannot be accepted. In this case the learned Judge has disbelieved the defence, namely, his plea of payment. The plaintiff was merely called upon to show that no rent was paid. The account books were put in for the purpose of showing the absence of any entry in those account books evidencing payment of rent by the defendant. There was no question of charging the defendant with liability by reason of an affirmative entry in the account books. The account books were duly proved by the manager, because he stated that the entries were made in his presence. This plaintiff's manager deposed to say that the defendant never paid the rents claimed. The learned Judge has also referred to certain circumstances in support of his view that the defendant's version cannot be believed. These circumstances are that the plaintiff granted the defendant a receipt for payment of rent in respect of prior period and there is a Money Order coupon showing payment of rent for a prior period. The defendant failed to produce any receipt showing that rent was paid for the period now in question. The learned Judge also commented on the fact that the defendant did not produce his account books. He also disbelieved the defendant's evidence,

In these circumstances, it is impossible to say that the learned Judge had no legal evidence on which to base a conclusion as to non-payment of rent by the defendant. There is therefore no substance in the contention raised' on behalf of the petitioner that there is no legal evidence to support the finding of the learned Judge that rent was not paid for the disputed period. The only contention raised in support of the petition must therefore fail.

3. The Rule Is accordingly discharged with costs, hearing fee being assessed at five gold mohurs.

4. In this case a letter was addressed by the Rent Controller to this Court for a direction on the defendant-petitioner to pay the wages of the peon. That is a matter which has to be decided by the Rent Controller after hearing the defendant and the plaintiff.

REVISION NO. 2382 :

5. This Rule was obtained by the defendant against an order of the learned Judge directing the defendant to deposit Rs. 13050/- In terms of Section 14(4) of the Rent Control Act, 1950.

6. It appears that the plaintiff filed a suit in ejectment of the defendant on the 18th of June, 1951, and thereafter made an application under Section 14(4) of the Rent Control Act for an order on the defendant to deposit the arrears of rent due. The learned Judge has made an order as prayed for but in calculating the amount of arrears due he has excluded the rent for the period for which distress was levied by the learned Judge and which was the subject-matter of the connected Rule just disposed of. In this Court Mr. Ganguly who has appeared in support of the petition has raised two contentions. In the first place He has contended that by virtue of the provisions of the then Rent Control Act the defendant's tenancy was 'ipso facto' determined after the rent had been in arrears for a period of three months.

Mr. Ganguly contends that thereafter no rent was payable by him and that this state of things continued till the 30th of November, 1950, when the amending Act retrospectively made the defendant who was a trespasser till then, a tenant. It is therefore contended that during this period no rent was payable and therefore no order for payment of rent for this period could be made under Section 14(4) of the Rent Control Act, 1950. In support of his submission he has referred us to certain observations made' by the learned Chief Justice in the case of -- 'Ajit Kumar v. Surendra Nath', : AIR1953Cal733 . These observations are no doubt couched in general terms but they must be read in the light of the facts Which were then before the Court.

In that case the question was whether the tenant could avail himself of the provisions of Section 18(5) of the Rent Control Act, 1950, as amended. A supplementary question arose as to whether the period before the amending Act of 1953 could be taken into account in determining whether the tenant was a defaulter or not. In the present case, the question is entirely different. Here the question has arisen on an application made by the plaintiff at a time when the Rent Control Act 1950 had already been amended by the amending Act (Act LXII of 1950). The amending Act retrospectively made the tenant who had defaulted in payment of three months' rent a tenant for the period after he had been in default in payment of rent for three months till the passing of the amending Act. When the application came to be considered by the court below, the defendant must be deemed to have been a tenant during that period also. The rent which had accrued due for that period must be regarded as being in arrears in determining the extent of the defendant's liability to pay in terms of Section 14(4) of the Act. There is therefore no force in the first contention raised by Mr. Ganguly.

7. Mr. Ganguly also contended that Section 14(4) contemplates a suit as is referred to in Section 14(1), that Section 14(1) in its turn refers to defaults as envisaged in Section 12, proviso (i). It is contended that Section 12(i) is not retrospective and therefore in determining the arrears payable under Section 14(4) We cannot go back to a period prior to the enactment of the Rent Control Act, 1950. In my opinion, this contention cannot be accepted. Section 14(4) of the Rent Control Act, 1950, enables the Court to direct the defendant to pay arrears of rent due. The expression 'arrears of rent' is used without any qualification -- Necessarily the Legislature did not intend to discriminate between the arrears of rent which accrued after the 1950 Act came into operation and arrears which were due before the 1950 Act came into operation. The expression must be given its natural meaning. In my opinion, it was competent for the learned Subordinate Judge in an application under Section 14(4) to require the tenant to deposit all the arrears of rent provided they were then legally recoverable. There is thus no force in the second contention raised by Mr. Ganguly.

8. In the result, this Rule must be discharged with costs, -- hearing fee being assessed at five gold mohurs.

Mitter, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //