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Federation Bank of India Ltd. Vs. Hanutmal Boid - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberA.F.O.O. No. 36 of 1949
Judge
Reported inAIR1951Cal382,54CWN604
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Sections 12, 12(1), 12(2), 17, 17(1) and 18; ;Code of Civil Procedure (CPC)
AppellantFederation Bank of India Ltd.
RespondentHanutmal Boid
Appellant AdvocateD.N. Sinha, Adv.
Respondent AdvocateA.K. Sen and ;S. Roy, Advs.
DispositionAppeal dismissed
Cases ReferredAlley v. Dale
Excerpt:
- .....decree in a suit for ejectment and rent made against them at the instance of the respondent and dated august 14, 1947, and all orders for execution made thereunder should be rescinded or varied on such terms and conditions as the court might seem fit. there was also a prayer for an injunction restraining the respondent, his servants or agents from executing the said decree for possession.2. the facts giving rise to the litigation can be shortly stated as follows. the plaintiff-respondent was the owner of premises known as no. 10, canning street in the city of calcutta. the petitioners, the federation bank of india, ltd., were the tenants under the plaintiff in respect of part of the premises at a monthly rent of rs. 360. the bank were in arrear with the payment of rent and in the.....
Judgment:

Harries, C.J.

1. This is an appeal from an order of Banerjee J. dated December 20, 1948, dismissing an application under the West Bengal Premises Rent Control (Temporary Provisions) Act, XXXVIII [38] of 1948. The application was made by the appellants for an order that the decree in a suit for ejectment and rent made against them at the instance of the respondent and dated August 14, 1947, and all orders for execution made thereunder should be rescinded or varied on such terms and conditions as the Court might seem fit. There was also a prayer for an injunction restraining the respondent, his servants or agents from executing the said decree for possession.

2. The facts giving rise to the litigation can be shortly stated as follows. The plaintiff-respondent was the owner of premises known as No. 10, Canning Street in the city of Calcutta. The petitioners, the Federation Bank of India, Ltd., were the tenants under the plaintiff in respect of part of the premises at a monthly rent of Rs. 360. The bank were in arrear with the payment of rent and in the early part of the year 1946 the bank made an application to this Court under the Indian Companies Act for a moratorium. The application was, however, refused. On July 31, 1946, the plaintiff-respondent served a notice to quit upon the bank, but the bank did not vacate the premises after the expiry of the notice. On September 10, 1946, this Court made an order winding up the bank and the Official Liquidator was appointed liquidator of the company. Subsequently, a scheme was sanctioned under the Indian Companies Act and by that scheme the bank was allowed to pay its debts by certain instalments. As the bank was a defaulter in the payment of rent an application was made by the plaintiff-respondent to the Rent Controller for leave to file a suit for ejectment, as it was necessary under an Ordinance then in force that such leave should be obtained before a suit could be filed. The Rent Controller gave leave to the plaintiff-respondent to bring a suit if the arrears from January 1946 were not paid up in a month's time. The arrears were not paid and the leave became effective. The bank appealed from the order of the Rent Controller, hut that appeal was dismissed and on July 25, 1947, a suit for possession and for Rs. 2880 as arrears of rent and mesne profits at the rate of Rs. 360 a month was filed in this Court. It will be seen that non-payment of rent was made a ground for eviction. The writ of summons was duly served on the bank, but no appearance was entered. The result was that the suit was decreed ex parte on August 14, 1947. The bank then made an application under Order 9, Rule 13 to have the ex parte decree set aside. This application was dismissed and an appeal was preferred. The Court of Appeal granted a stay on certain conditions, one being that the petitioner deposited in Court a sum of Rs. 8000 as a condition for the stay. The sum was deposited in Court by the bank, but eventually the appeal was dismissed and the respondent took out the money in payment of his dues. The bank then made an application under Section 5 of the Limitation Act to the Appellate Court for extension of time for filing an appeal against the ex parte decree. That application was dismissed on 27-9-1948. In the meantime the plaintiff-respondent had taken out an execution and obtained an order from this Court for possession. The Sheriff's officer endeavoured to obtain possession but he was resisted. On 1-10-1948 the bank made an application to the Court asking for three months' time to vacate the premises. On 26-11-1948, the bank filed a suit for setting aside the decree of August 14, 1948, on the ground of fraud, but eventually this suit also met the same fate and was dismissed. The bank also made an application for an injunction restraining the plaintiff from executing the decree. That application was ultimately dismissed. Between November 25 and November 30, 1948, the Sheriff received a number of letters from various persons claiming that they were in occupation of the premises in question under title independently of the bank, that is to say, neither as assignees nor as sub-tenants of the bank. The Sheriff's officer then reported that the premises were locked and the upshot of it all has been that though the plaintiff obtained a decree on August 14, 1947 nevertheless he was not successful in getting possession up to December 1, 1948. On December 1, 1948, the Act known as the West Bengal Premises Rent Control (Temporary Provisions) Act, XXXVIII [38] of 1948, came into force and on the day it came into force the bank made the application to Banerjee J. which has given rise to this appeal. Banerjee J., eventually came to the conclusion that there were no merits in the application and he accordingly dismissed it with costs, It is from that order the present appeal has been, preferred.

3. Mr. D. N. Sinha who has appeared on behalf of the appellant-bank has urged that the Court should set aside or vary the decree which had been passed in August 1947 against his client, because that decree would never have been passed if the Act, namely, the West Bengal Premises Rent Control (Temporary Provisions) Act, had been in force at the date upon which the decree was made. Counsel has relied upon Section 18 of that Act which is in these terms :

'Where any decree or order for the recovery of possession of any premises has been made, before the date of commencement of this Act but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the Court by which the decree or order was made may, if it is of opinion that the decree or order would not have been made if this Act had been in operation at the date of the making of the decree or order, rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to the provisions of this Act.'

It seems to me that the wording of this section is clear. If a Court on application made to it comes to the conclusion that the decree sought to be rescinded would never have been made, if this Act had been in force at the time that decree was made, then the Court can rescind or vary that decree. What the Court has to ask itself is would it have passed the original decree if this Act (Act XXXVIII [38] of 1948) had been in force at the date of the original decree. Mr. D. N. Sinha has urged that if the Act XXXVIII [38] of 1948 had been in force in August of 1947, the decree for eviction of the bank would never have been made. Under the Act (Act XXXVIII [38] of 1948) mere default in payment of rent is not in itself a ground for eviction. Section 11 of that Act provides that no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays to the full extent the rent allowable by the Act and performs the conditions of the tenancy. However, it is provided that the section shall not apply where the tenant has been guilty of certain conduct.

4. By Section 12 it is provided that no tenant shall be entitled to the benefit of Section 11 in respect of any premises unless he pays rent in a certain manner. Sub-section (1) (b) of this section provides:

'In the case where any rent has accrued due before the commencement of this Act, he also pays within one month after the date of such commencement all arrears of rent allowable by this Act and due by him in respect of such premises to the full extent together with, where the arrears are already the subject matter of a suit or proceeding before a Court or of any decree or order of Court, interest thereon at the rate of six and a quarter per cent per annum and such costs as the Court may award.'

According to Mr. Sinha the bank had paid all rent which had accrued due before the commencement of the Act, the date of commencement being 1-12-1948, within one month from that date. Mr. Sinha then argues that if Act XXXVIII [38] of 1948 had been in force in August 1947 no decree could have been passed because all the rent which had accrued due before the commencement of the Act had been paid as required by Section 12 (1) (b) and therefore the tenant would be entitled to the benefit of Section 11.

5. I find it impossible to apply Section 18 of Act XXXVIII [38] of 1948 to the facts of this case. What the Court has to do is to assume that in August 1947 Act XXXVIII [38] of 1948 was in force. If it was then no decree should have been passed against the bank if the bank had paid all rent accrued due before the commencement of the Act within one month after the date of such commencement. Now, if the Court has to assume that the Act was in force in August 1947 then the date of the commencement of the Act must have been in or before the month of August 1947. If that be so then clearly the bank is in no better position because admittedly the rent was not paid until December 1948. Mr. Sinha, however, has contended that even if we assume that the Act was in force in August 1947 nevertheless the date of the commencement of the Act must be the date stated in the Act itself, namely, 1-12-1948. But how can an Act which came into force on 1-12-1948 be assumed to be in operation in August 1947 unless an assumption is made that it came into force before the date stated in the Act. It appears to me that if the Court has to consider what it would have done if Section 12 (1) (b) was in existence at the time it passed the decree in August 1947 then it must give some meaning to the phrase 'commencement of the Act' other than the date upon which the Act provides it should commence. If it does not the result is nonsense, because how could a Court decide whether a decree should be passed or not when the decision would depend upon an event which would happen long after the decree would have to be passed. It seems to me that if the words 'commencement of the Act' in Section 12 (1) (b) mean 1-12-1948 then Section 18 cannot be applied to the facts of this case and the bank cannot rely upon Section 12 (1) (b).

6. Mr. Sinha then relied upon Sub-section (2) of Section 12 and contended that if it was assumed that Act XXXIII [38] was in force in August 1947 then the Bank would be entitled to the protection of Section 11 by reason of compliance with the provisions of Sub-section (2) of Section 12. It seems to me, however, that Sub-section (2) can have no application to these proceedings at all if the date of the commencement of the Act in Sub-section (2) means 1-12-1948. If on the other hand, when assuming that the Act was in force in August 1947, some date in August 1947 is regarded as the commencement of the Act then the bank is clearly not within Sub-section (2) because it had not paid what it was required to pay within one month from the date of the service of the process on the tenant. In my judgment it is quite impossible to apply Section 18 to the facts of this case if the date of the commencement of the Act is to be taken as the date stated in the Act itself. What Mr. Sinha really wants the Court to do is to construe Section 18 as meaning that if the Court came to the conclusion that no decree would have been passed if it had been called upon to pass the decree not in August 1947, but sometime after the Act had come into force then the decree could be set aside or varied. If that was what the legislature intended I cannot understand why they did not say so. The section does not ask the Court to assume whether the decree would have been passed after the Act had come into force, but what the Court is asked to assume is whether or not if the Act had been in force in August of 1947, the decree would have been passed. To give effect to Mr. Sinha's contentions, it appears to me that the whole of Section 18 would have to be recast. Mr. Sinha also asked us to take into consideration Section 17 (1) of the Act. That section provides that in any suit or proceeding for the recovery of possession of premises on one or more of the grounds specified in the proviso to Sub-section (1) of Section 11, the Court must at the first hearing of the suit come to a conclusion whether there is a sufficient cause for proceeding with the suit and that it should do after hearing the parties and considering any affidavits which the parties might have filed. It appears to me quite clear from the wording of the section that it was never intended to apply to suits filed before the Act came into force. However Mr. Sinha has asked us to apply Section 17, to the facts of this case by reason of Section 18 of the Act. He has contended that assuming Section 17, to have been in force in August of 1947, no Court at the first hearing of the suit would have held that there was sufficient cause to allow the suit to proceed.

7. The draftsman of this Act apparently did not realise that on the Original Side of this Court there is no first hearing within the meaning of that phrase as used in Order 15 of the Code of Civil Procedure. The first time the suit comes for hearing on the Original Side it is usually heard and decided. The section, therefore, as drafted is wholly inapplicable to the Original Side where there is no first hearing as opposed to any other hearing. Further, how can a Court ask itself whether or not it would have held in August 1948 after hearing the parties and on consideration of affidavits that there was sufficient ground for proceeding with the suit. As the Act was not in force in 1947 the Court had not heard the parties on this matter and had not required any affidavits or considered them. How, therefore, can a Court ask itself today what it would have done in August of 1947 assuming an Act was in force which required all sorts of conditions to be performed the performance of which was not necessary in August of 1947. It seems to me that it is impossible to apply this section to decrees passed before the Act came into force as required by Section 18 of the Act. Banerjee J. in an exhaustive judgment has dealt with this aspect of the case. He has pointed out that the rule of construction as laid down by Jervis C. J. in Alley v. Dale, (1851) 20 L. J. C. P. 233 at p. 235 : (11 C. B. 378) still holds good. The learned Chief Justice observed :

'If the precise words used are plain and unambiguous in our judgment we are bound to construe them in their ordinary sense, even though it do lead in our view of the case to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure; but we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.'

The learned Judge later points out that the duty of the Court is neither to add words to a statute nor to Subtract any words from it. The plain duty of the Court is to gather the intention of the legislature from the words used in the statute taking its plain and ordinary meaning. Applying these rules the learned Judge came to the conclusion that he could not hold that this decree would never have been passed if this Act had been in force in August 1947.

8. It appears to me that the view of the learned Judge cannot possibly be assailed. In order to give effect to the argument for the appellants in this ease Section 18 would have to be recast in its entirety. As it stands at present it is quite impossible to give the appellants the relief which they would have been entitled to after 1-12-1948 under Section 12 (1) (b), or Section 12 (2) or Section 17 (1) of the Act. That being so, this appeal must fail and is dismissed with costs. Certified for two counsel.

Sinha, J.

9. I agree.


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