P.N. Mookerjee, J.
1. This second appeal arises out of a suit for ejectment. The suit was decreed by the trial Court, but on appeal, it has virtually been dismissed as the deposit which the learned Subordinate Judge directed the contesting defendant tenant to make to avoid ejectment has already been made. Against this appellate decision, the plaintiff has preferred this second appeal.
2. The suit property comprises premises No. 38/1-G, Manicktola Main Road. The contestingdefendant 1 was a tenant therein from the time of the previous owner Sahajadi Begum, fromwhom the plaintiff purchased the premises on 15-3-1951.
In July 1951, the plaintiff gave the tenant defendant a notice to quit, requiring him to vacate the suit premises on the expiry of August, 1951, and upon the tenant's failure to quit, the present suit was instituted on 6-11-1951. The tenant was made defendant 1 and certain alleged sub-tenants were made defendants 2 to 4.
3. Ejectment was claimed, inter alia, on the ground of reasonable requirement of the suit premises for the plaintiff's own use and occupation and also on the ground of default in the payment of rent. This latter ground! was added by amendment of the plaint, but there can be no question that the amendment was rightly allowed. The contesting defendant duly filed his additional written statement.
4. The main defence was a denial of the plaintiff's plea of reasonable requirement and also of his allegation of default. There was a further plea that the defendant had spent about Rs. 5,000/- on repairs, for which he would be entitled to get credit as against rent, and, that being the position, the allegation of default would be entirely unfounded. The other defences have not been pressed in this Court and they are not material for purposes of this appeal.
5. The learned Munsif overruled! all the de-fences. He found first that the tenant defendant was a defaulter from 15-3-1951, to September, 1951, by reason whereof he was debarred from claiming any relief against ejectment under Section 14. Rent Control Act of 1950 in view of the proviso to Sub-section (3) thereof.
He found further that the plaintiff had, made out a rase of reasonable requirement for her own use and occupation within the meaning of Section 12(1) (h) of the Act. He, accordingly, decreed ejectment, giving the defendant one month's time to vacate the disputed premises.
6. The learned Subordinate Judge took a contrary view. He held against the plaintiff on the question of reasonable requirement of the suit premises for her own use and occupation. He held also that the tenant defendant was not a defaulter for the requisite three occasions of two months each, so as to be hit by the proviso to Section 14(3), Rent Control Act of 1950.
He, accordingly, set aside the decree for ejectment upon the tenant's depositing in Court Rs. 111-15-9 pies, found due under Section 14(1) of the Act, within 15 days. That deposit was duly made and, accordingly, the learned Munsif's decree for ejectment stood completely reversed.
7. Incidentally, at this stage, it may be noted that, by directing the tenant defendant to make the above deposit, the learned Subordinate Judge appears to have accepted the learned Munsif's finding, made in the proceedings under Section 14(4), Rent Control Act of 1950, rejecting the tenant's plea that he had effected repairs of the disputed premises at his own costs,
8. In arguing the appeal, Mr. Gupta raised two short contentions.
9. In the first place, he urged that the learned Subordinate Judge's judgment on the question of the plaintiff's reasonable requirement of the premises for her own use and occupation, rejecting her said plea, was not a proper judgment of reversal. He argued that there had been no proper consideration of this aspect of the matter by the learned Subordinate Judge and, on this point he prayed for remand.
10. There is substance in this contention and I accept it.
Mr. Gupta urged next that the learned Sub-ordinate Judge's finding on the question of default was entirely erroneous and his order under Section 14(1): was wholly unjustified.
Mr. Gupta assumed, for purposes of this case, that the learned Subordinate Judge was right in holding that the September default which was admittedly after the expiry of the notice to quit would not be relevant, but, even then, Mr. Gupta con-tended that there would be six consecutive months' default, namely, from March to August 1951, which would be sufficient to attract the mischief of the relevant statutory proviso. I am inclined to accept this argument.
11. Admittedly, the rents due from 15-3-1951, to 31-8-1951, were not paid or deposited in tune. The learned Subordinate Judge held that that would constitute default for 51/2 months. I do not think that this view is correct.
The tenancy in question was a tenancy from month to month according to the English calendar and non-payment of rent of any part of March in time, -- in this case of the latter half, -- would make the March rent in default or in arrear as much as non-payments of the entire rent for that month. Clearly, therefore, the tenant was a defaulter from March to August 1951, which was sufficient for purposes of the relevant statutory proviso.
12. The same conclusion also follows from another consideration in the present case. The plaint was no doubt not very happily worded on the question of the March default and the relevant allegation, as incorporated therein, by the amendment, was to the effect the tenant defendant had defaulted in the payment of rent from 15-3-1951, to 31-10-1951, but, in the relevant petition of amendment, there was a clear allegation of default from March 1951 to October 1951, and the defendant also filed his additional written statement on that footing and in this light, denying default from March 1951 to October 1951.
From the defendant's own evidence in the suit, -- I am not referring here to his evidence in the Section 14 (4) proceedings which is clearer but which may not by itself be strictly evidence in the suit, -- it is sufficiently clear that there was no timely payment of rent for the entire month of March 1951.
It may be that the rent for the first half of March 1951 was really payable to the plaintiff's transferor Sahajadi Begum, who was the previous landlord but that, as held by me in the recent case of -- 'Manmatha Nath Joardar .v. Sasanka Mohan Guha', 96 Cal LJ 53 (A), would not make any difference and that default also would be available to the transferee landlord, namely, the present plaintiff. This, indeed, was not disputed! by Mr. Mukherjee. In this view, the defendant's default would obviously be from March 1951 to August 1951 and he would be clearly hit by the proviso to Section 14 (3), Rent Control Act of 1950.
13. In the above context, it is unnecessary for me to examine in this case the two different opinions, expressed by the two learned Judges In the courts below as to the latest date upto which the period of eighteen months, as mentioned in the proviso to Section 14 (3), Rent Control Act of 1950, would extend.
The learned Munsif held that defaults upto the date of institution of the suit would be relevant for purposes of the proviso. The learned Subordinate Judge was not inclined to take the relevant period beyond the expiry of the notice toquit or the determination of the contractual tenancy. The point is not altogether free from difficulty and, as it 'does not arise in the present case in view of what I have already said above, I refrain from expressing any final opinion on this point beyond pointing out that the Bench. decision in the case of -- 'Amal Krishna Basu v. Chandi Charan Banerjee', : AIR1953Cal145 (B), does not really decide this question.
That decision merely lays down that, in no view, would post-suit defaults be relevant for purposes of the statutory proviso to Section 14(3), Rent Control Act of 1950 while rejecting a contention that the relevant defaults must be calculated upto the actual date of the order under Section 14(1) of the Act. Nothing more should be read into that decision and nothing else should be attempted to be deduced therefrom.
As, however, on the other reasons, given by me above, the present case would fall within the mischief of the said proviso, Mr. Gupta's contention on this part of the case should be accepted subject to what I shall presently say in regard to the defendant's repair costs claim. The decision of the learned Subordinate Judge on Section 14(3) proviso is, accordingly, reversed and his order of deposit under Section 14(1) is set aside.
14. The above, however, must be subject to consideration of the defendant's claim on the question of repair costs. As I have already said, the learned Subordinate Judge and, indeed, the learned Munsif also at the time of final hearing of the' suit, did not pay any serious attention to or really decide this part of the defence case which, though not very elaborately taken in the written defence, was specifically urged in the Section 14(4) proceeding where it was negatived by the learned Munsif and appears also to have been referred to at least before the learned Subordinate Judge.
In the circumstances of this case, I am inclined to allow fresh consideration of this question also by the lower appellate Court to which the case, as already indicated, win have to go back on a limited remand, and the parties will be entitled to adduce fresh or further evidence before that Court on this question of repair costs only.
15. In the above view of the matter, I allow this appeal; set aside the judgment and decree of the learned Subordinate Judge and send the case back to him for re-hearing according to law on the points, indicated above, namely, the two questions of reasonable requirement and repair costs, and! for final disposal in the light of this Judgment.
16. The costs of this appeal will abide the final result.