P.N. Mookerjee, J.
1. This appeal is by the plaintiff and it arises out of a suit for eviction, instituted while the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was in force.
2. It is not disputed by either party that the present case is governed by the said statute. The ground, taken under that statute, was the ground of default under Section 12(1) proviso (i).
3. The suit was decreed by the learned trial Judge after striking out the defence against ejectment under Section 14(4) of that Act.
4. There was an appeal from that decree to the Court of Small Causes, Calcutta, under the law, as it then prevailed, but the said appeal was ultimately dismissed by that court for non-compliance with an order under Section 14(5) of the above Act. From this decree of dismissal of the appeal, affirming, in effect, the decree of the suit by the learned trial Judge, the defendant took a second appeal to this Court, which was heard by our learned brother Bhattacharya, J., as he then was, and it was, eventually, allowed by his judgment, dated December 16, 1959, and the plaintiff's suit was dismissed on the ground that the plaint in the instant case did not disclose any cause-of-action. Bhattacharya, J., however, granted leave to the plaintiff under Clause 15 of the Letters Patent to appeal from his said decision and this has given rise to the present Letters Patent appeal.
5. For our present purpose, it will not be necessary to go into the facts in any great detail but it will be sufficient to say that, according to Bhattacharya, J., in the plaint of the instant suit, the material particulars of the defaults, on which the plaintiff's claim to deprive the defendant of protection under the above rent control law was based, were given and, upon that view, his Lordship came to the conclusion that the plaint disclosed no cause-of-action and was, accordingly, ineffective to entitle the plaintiff to any decree.
6. In taking the above view, Bhattacharya, J. relied upon and endorsed the earlier decision of this Court in Ramesh Chandra Dutta v. Surya properties Ltd., : AIR1957Cal198 , where Lahiri, J., as he then was, expressed a similar opinion. It also appears from the judgment under appeal before us, reading it as a whole and giving it full effect, that Bhattacharya, J. was of the opinion that, although for non-compliance with an order of the court of appeal below under Section 14(5) of the above Act, an order had been recorded by that court that the defendant's appeal stood dismissed, however good the said order was on the merits, that is, however much the said finding of non-compliance was unchallengeable, it operated as no bar to his agitating his grievances against the decrees of the two courts below in the second appeal before my learned brother, as, apparently, he was of the view that dismissal of the appeal under the circumstances was not correct and it could not be supported. Bhattacharya, J. was also of the view that the grounds or exceptions under the provisos to Section 12(1) of the above Act were really parts of the cause-of-action for a Suit for eviction, governed by the said Act, and, accordingly, If it be held that there was no sufficient statement of such grounds or no sufficient statements of material particulars in that behalf in the plaint, the plaint would be invalid for want of a cause of action and the plaintiff would be liable to fail as having not disclosed any cause of action in his plaint.
7. As matters stand, we do not feel called upon to answer all the above questions in the present appeal, as, in our opinion, if the view of our learned brother Bhattacharya, I based on : AIR1957Cal198 , supra, be not acceptable, his decision, rejecting the plaintiff's plaint or dismissing his suit cannot be supported, or, in other words, his view, based upon the said decision : AIR1957Cal198 and forming the basis of his decree dismissal of the plaintiff's suit, cannot be supported.
8. We may, however, incidentally state that, on the question of the effect of non-compliance with an order of court under Section 14 (5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, there are judicial pronouncements, of which mention may be made to the Bench decision, reported in Mrs. H. Taylor v. Hiralall Roy, 65 Cal WN 805 in which there are observations, which have been sought to be relied on by either side before us. We may also state that, in spite of certain decisions to the contrary, it may be open to argument that the grounds under the provisos to Section 12(1) of the above Rent Control Act would be parts of the cause of action in a suit for eviction, governed by that statute. In that context, we will, for our present purpose, assume that the dismissal of the appeal by the lower appellate court under Section 14(5) of the above Act was not correct and it would not debar the defendant from agitating his grievances against the decree for ejectment, affirmed by that court, in the second appeal before this Court. We will also assume, for our present purpose, that the ground or grounds under the provisos to Section 12(1) of the above Act form part of the plaintiff's cause of action in a suit for eviction under the same and, upon those assumptions, we will proceed to deal with the present Letters Patent Appeal.
9. In the context of what we have said above, the point which will require consideration in the instant case would be whether Bhattacharya, J. was right in holding that the present plaint did not disclose a cause of action or was wanting in statements of material facts, which made it liable to rejection. The relevant statement in the plaint for the above purpose may be quoted as hereunder 'That the defendant is not entitled to protection against eviction under the West Bengal Premises Rent Control (T. P.) Act, 1950, inasmuch as he has failed to pay and/or deposit rents for two months each on three occasions within a period of eighteen months.' It Is not disputed that, if this statement be sufficient for furnishing the so-called cause of action under the relevant proviso (1) to Section 12(1), the plaint cannot be held to be defective or bad in law and liable to rejection. The question, therefore, arises whether the above statement is sufficient for the said purpose.
10. In our view, the above statement in paragraph 3 of the plaint is sufficient to sustain the present plaint for the above purpose. It is, clear, in our opinion, that the said statement sufficiently indicates that the defendant is a defaulter for the requisite period to disentitle him to the benefits or protection of the rent control law. It cannot be held to be not a statement of the material fact in that behalf. It is true that further and better particulars may be requisitioned if the defendant requires the same but that will obviously be a case under Order VI, Rule 5 of the Code of Civil Procedure. If the defendant felt any difficulty in answering the above allegation of the plaintiff for absence of other or better particulars, it was 'open to him to take steps under the said statutory provision, namely, Order VI, Rule 5 of the Code. It is to be remembered in this connection that the fact whether the defendant is a defaulter for the requisite period is as much within the special knowledge of the defendant as of the plaintiff. In that context, the above statement will be sufficiently informative and intelligible for the purpose of enabling the defendant to answer the same but, as we have said above, if he had any difficulty in the matter, it was open to him to ask for further or better particulars under Order VI, Rule 5 of the Code. The absence of such particulars would not necessarily make the plaint a bad plaint, though, on the defendant's requisition, the court may direct the same to be furnished to the defendant. That, indeed, is the purpose of Order 6, Rule 5 of the Code; otherwise that provision would not have been on the statute book,
11. It is true that, in the case, reported in : AIR1957Cal198 , there are observations, which may indicate and support a contrary view but, with all respect to Lahiri, J., as he then was, we are unable to agree with those observations. In the relevant passage, Lahiri, J. referred to the fact that the particulars in question were within the special knowledge of the plaintiff and, accordingly, these should have been stated in the plaint as part of the material statements. It seems to have been overlooked that those particulars were also within the special knowledge of the defendant and it was quite within his knowledge whether he was a defaulter at all or for any period and, further, that a statement that the defendant is a defaulter for two months each on three occasions within a period of 18 months is a statement of fact and a sufficient statement of the material fact for the purpose of applying the exception or withdrawal of protection under the said proviso (1) to Section 12(1) of the above Act.
12. On the plaint, as it stands, the allegations, made therein, if un-controverted, would, in our opinion, entitle the plaintiff a decree and of such a plaint, it cannot be said, that it discloses no cause of action or is wanting in material particulars so as to be liable to be rejected straightway under the law. We would, accordingly, respectfully differ from the decision of our learned brother Bhattacharya, J. and also from the observations of Lahiri, J., as he then was, on which, in effect, his (Bhattacharya, J.'s) laid decision was based.
13. The result will be that this appeal will be allowed, the decree of dismissal of the suit or rejection of the plaint, passed by Bhattacharya, J., will be set aside and the decree of the learned trial Judge will be restored, subject to this that, having regard to the circumstances of this case, we would allow the defendants time till the end of January, 1967, in the first instance, such time to be enlarged to the end of December, 1968, on a proper undertaking being filed in this Court within four weeks from this date, by the deceased defendant's son Jayanta Kumar Bose and brother Hirendra Kumar Bose, to deliver up vacant and peaceful possession of the disputed premises to the plaintiff-decree-holder (respondent) within the aforesaid period, namely, end of December, 1968, provided that the defendants-respondents go on depositing, in the trial court, to the credit of the decree-holder appellant a sum of Rs. 63.62 P. per month, month by month, regularly, according to the English calendar, within the 15th of the next succeeding month according to the same calendar, and, in default of any two of such deposits, this decree for eviction will become executable at once and the above provision for time, be it the longer or the shorter one, will automatically lapse.
14. Any amount, deposited or to be deposited on account of rents or mesne profits, as the case may be, of the disputed premises, either with the Rent Controller or in the trial court, will be allowed to be withdrawn by the decree-holder respondent without security.
15. There will be no order For costs in any Court.
A.C. Sen, J.
15a. I agree.
BY THE COURT
16. Mentioned. In the circumstances, explained and represented to us, in continuationof the judgment, delivered on February 15,1966, and in modification thereof, we direct that the deposits of mesne profits for the months of February and March, 1966, be made with theRent Controller, instead of in Court, as directedtherein, and the said Judgment be read accordingly. Subject to this modification, the said Judgment, of which this order will form a part, will stand.