Latifur Rahman, J.
1. This appeal by the defendants arises out of an action in ejectment. It appears that the property in suit was leased out by the predecessors in interest of the plaintiffs to the present defendants by an indenture of lease dated 14-9-1914, for a period of 15 years commencing from 1st Ashar 1321 B, Section with an option of renewal for another period of 10 years. When the lease for 15 years expired the defendants intimated their desire to exercise their option for renewal of the said lease. They were then allowed to continue in possession of the property in suit, and according to the plaintiffs the period of 10 years expired on 1st Ashar 1846 B.S. Thereafter, the plaintiffs served & notice on the defendants asking them to quit and vacate on the ground that the plaintiffs required khas possession of the property in question for their own use. Subsequently in the suit which the plaintiffs instituted they prayed for recovery of possession, also claimed arrears of rent as well as mesne profits or damages.
2. The Court of first instance held that the suit for ejectment was on the ground of nonpayment of rent and as such, was not liable to be stayed under the provisions of Section 8, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, (9 IX of 1940). The Court proceeded with the suit and passed a decree for recovery of the rent in arrears, but dismissed the plaintiff's claim for recovery of possession and mesne profits or damages.
3. The lower Appellate Court affirmed the finding of the trial Court on the question of stay of the suit under the provisions of Section 3 of the Act, and the decree for arrears of rent, but reversed the finding so far as it related to ejectment, decreeing the suit for possession. From this decision the present appeal has been preferred.
4. On behalf of the appellants, it was contended by Mr. Atul Gupta (1) that the suit for ejectment ought to have been stayed but, because of the claim for rent and mesne profits if the suit was proceeded with the decree in so far as it related to ejectment should be stayed under the provisions of Section 3 of the Act (2) that the suit for ejectment must fail' for want of a proper notice. Mr. Gupta stated that if he succeeded on the first point, the second point need not be gone into.
5. With regard to the first point, the learned Advocate in support of his contention relied upon the principles laid down in Reliance Jute Mills Corporetion Ltd. Dukhi Shah : AIR1942Cal550 . It seems that the Courts below followed the decisions of Mifcter, J. in Puroendu Nath Tagore v. Narendra Nath Samanta : AIR1941Cal302 . In Reliance Jute Mills Corporetion Ltd. Dukhi Shah : AIR1942Cal550 which arose in execution proceeding out of a suit for ejectment filed before the commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, referring to Section 3 of the said Act Mukherjee J. observed follows:
Thus in order to attract the operation of the Section what is necessary in that the suit or proceeding must be one for ejectment of a non-agricultural ten ant and the ejectment must be sought for on a ground-other than non-payment of rent. The words 'on account of non-payment of rent' are somewhat unhappy and it has been pointed out by our learned brother Hitter J. in Puroendu Nath Tagore v. Narendra Nath Samanta : AIR1941Cal302 that mere nonpayment of rent could not be a ground for ejectment of a tenant under the substantive law of this country. Our learned brother was constrained to interpret these words as referring to a suit for ejectment of a tenant whose rents were in arrears although the right to sue was based on grounds other than non-payment of rent. This decision was followed by Henderson J. in Nutbehari Das v. Mohamed Ali 28 A.I.R. 1941 Cal 528. With great respect to the learned, Judges, we are bound to say that the interpretation adopted by them is somewhat farfetched and unnatural. It may be argued that the view which we are taking may lead to this undesirable result that a suit which has been brought for ejectment as well as for recovery of rent may be stayed in its entirety under the provisions of Section 3 Bengal Non-Agricultural Tenancy Act and the landlord may have to forego the rent for it, certain period of time. We do not think however, that this-was the intention of the Legislature. What the Legislature intended is that only a suit or proceeding for ejectment of a tenant shall be stayed and there is nothing in Section 3 which prevents the Court from proceeding with the suit so far as it relates to the recovery of rent.
Sen J., agreeing with the above, remarked as follows:
What Mitter J, has said is that a suit for ejectment of a tenant who is in arrears regarding his rent is a suit for ejectment on account of non-payment of rent although ejectment is claimed, on a ground other than non-payment of rent. In order to give the clause some meaning he is constrained to interpret it as stated above. There can be no doubt that if the words of the above mentioned phrase in the Section be given their ordinary meaning, the interpretation of my learned brother cannot be supported. This forced, and if I may say so with great respect, unnatural interpretation is based on the view that a non-agricultural tenant cannot be ejected on account of non-payment of rent.
In Radhika Lal Goswami v. Gopeswar Basu ('42) 46 C.W.N. 1025 Derbyshire C.J, obsrved as follows:
On my reading of Section 3 of the Act the landlords were entitled to a decree for arrears of rent up to the end of Chaitra 1940, and thereafter mesne profits until they obtained possession. It seems to me to be quite clear that the landlords were asking for ejectment because of nonpayment of rent. They are, in my opinion, entitled to an order for ejectment as from the present date subject to the provisions of the proviso to Section 8 of the Act. the tenant deposits into Court the arrears of rent. the decree for ejectment will be stayed.
This was followed by Henderson J. in Lokenath Sibthakur v. Manindra Nath Dutt ('45) 49 C.W.N. 239.
6. Thus, it will be seen that the interpretation of Section 3 of the Act has led to a divergence of judicial opinion. On examining these authorities they do not appear, for our present purposes to be so inconsistent as to be irreconcilable.
Section 3 of the Act provides as follows:
Notwithstanding anything contained in any other law for the lime being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant, other than a suit or proceeding for ejectment, on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force. Provided that every proceeding for delivery of possession in execution of a decree for ejectment on account of the non-payment of rent by such tenant shall be stayed if, within thirty days from the date of The decree, such tenant deposits into Court the amount of the decree together with the costs of the procedure.
7. On a construction of the Section, we are of the opinion that its main provisions are intended to protect a non-agricultural tenant who is sought to be evicted on grounds other than nonpayment of rent, so that in a suit for ejectment of such a tenant if there are claims for rent, mesne profits or damages, and the entire suit is proceeded with, the execution of the decree in so far as it relates to ejectment will have to be stayed. In a suit for ejectment against a non-agricultural tenant who has defaulted in payment of rent and a decree is passed against him on the ground of non-payment of rent, such a tenant is also protected from eviction by the remedy prescribed in the proviso to Section 3, if he avails himself of the conditions laid down therein.
8. Having regard to the view we have taken, we affirm the decision of the lower appellate Court and direct that Court to stay the decree in so far as it relates to ejectment for the period during which the Act continues in force. The result is that this appeal is allowed in particle. The parties will bear their own costs throughout.
9. I agree.