1. This is an appln. by the tenants claiming relief Under Section 6, West Bengal Premises Rent Control (Temporary Provisions) Amendment Act, 1950. That section is as follows:
'Power of Ct. to rescind or vary decrees & orders in certain cases. Where at any time between the commencement of the said Act & of this Act, an order or decree for the recovery of possession of any premises has been made or passed by any Ct. but possession of such premises has not been recovered in execution of such order or decree & the Ct. is of opinion that the order or decree would not have been made or passed if this Act had been in force when the order or decree was made or passed, the Ct. may, on appln. by the tenant within sixty days of the commencement of this Act, rescind or vary the order or decree on such terms & conditions as it deems necessary for the purpose of giving effect to the provisions of Section 18 of the said Act as amended by this Act.'
2. The 'said Act' in the section is the 'West Bengal Premises Rent Control Act, 1950.
3. The facts of this case appear from the judgment of P.B. Mukharji J., which is reported in S.B. Trading Co. Ltd. v. Satyendra Chandra, 86 C. L. J. 46. The pltf. filed the suit for ejectment, arrears of rent & mesne profits. His allegation in the plaint was that the defts. (tenants) had failed to pay or deposit in accordance with the provisions of the Act of 1948, rent payable by them in respect of the premises in question which had accrued due after the commencement of the Act of 1948 & as such their interest in the premises was ipso facto determined & they should no longer be deemed to be tenants. According to the pltf. the defts. were trespassers & liable to be ejected forthwith.
4. The defts. filed their written statement in which they denied that they had made any default in payment of rent which resulted in the determination of their interest in the premises. But ultimately they abandoned this defence & the only relief they claimed was Under Section 18 (5) of the Act of 1950. The defts expressly agreed that if their claim under that section failed they would have no other defence to the suit & the judgment must go against them as a matter of course.
5. It will be convenient to set out here Section 18 (5) of the Act of 1950. It runs as follows:
'If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Ct. or first or second appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Ct. shall exercise the powers of granting relief against ejectment given by Section 14 of this Act following the provisions & procedure of that section as far as may be necessary, & for the said purpose shall make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just.'
6. When the suit came up for hearing before P.B. Mukharji J., he, having regard to the views he expressed on Section 18 (5) in another case, held that the defts. were not tenants within the meaning of Section 18 (5) & as such were not entitled to the benefit of the section. But another learned Judge of this Ct. in construing Section 18 (1) of the Act of 1950 had taken a view which was in conflict with the view expressed by P.B. Mukharji J. Having regard to this conflict of opinion, Mukherjee J., thought that the matter being of public importance should be heard by a Bench of this Ct. & accordingly this case was refd. under Ch. 5 Rule 3 of our Original Side Rules to my Lord, the Chief Justice, for constituting a Bench. A Bench was constituted & the case was heard & I delivered judgment in the suit which is reported in 86 C. L. J. 46 at p. 61 We took the same view as was taken by P.B. Mukharji J. & held that the defts. were not tenants within the meaning of Section 18 (5) & were not entitled to the benefit of the section. The net result of all this was that a decree was passed against the tenants on 30-6-1950. The tenants made an appln. to this Ct. for leave to appeal to the S. C. of India from the decree & asked for stay of execution in the meantime.
7. This appln. was heard by the Chief Justice & J.P. Mitter J. on 20-7-1950. By an order made on that date, leave to appeal was granted. Execution of the decree was stayed, the tenants (through their counsel) undertaking.
'to vacate the premises within fourteen days from the date of the appeal to the S. C. being dismissed by that Ct. or being abandoned or not being prosecuted by the appfts. The wording of the undertaking is not very happy, but there is no doubt in our mind, that the undertaking meant at least that if the tenants abandoned the appeal, they would vacate the premises within fourteen days thereafter. In this case there is no dispute that by 18-12-1950, the tenants abandoned the appeal & they have not vacated the premises. In the meantime, namely, on 30-11-1950, the amending Act was passed from which I have already set out Section 6 in an earlier part of this judgment.
8. The question arises as to whether the tenants are entitled to the benefit of Section 6. We do not express any opinion as to when & under what conditions a tenant is entitled to the benefit under Section 6. The only question we have consd. in this appln. is whether in the circumstances of this case the tenants are entitled to the benefit, having regard to the undertaking they gave.
9. Mr. Ajit Dutt on behalf of the tenants has argued that they are entitled to the benefit in spite of the undertaking. He says that the statute has given to the tenants the benefit & they can claim it. He further said that the word 'may' in this section should be read as 'shall'. On this point I set out an observation of Lord Beading from Taylor v Faires, (1920) 124 L. T. 732. In that case his Lordship was construing an analogous section (Section 5, Sub-section 3) which was enacted in the Increase of Rent & Mtge. Interest (Restrictions) Act, 1920. Section 5, Sub-section (3) of that Act. read as follows:
'Where any order or judgment has been made or given before the passing of this Act, but not executed & in the opinion of the Ct. the order or judgment would not have been made or given if this Act had been in force at the time when such order or judgment was made or given, the Ct. may, on appln. by the tenant, rescind or vary such order or judgment in such manner as the Ct. may think fit for the purpose of giving effect to the Act.'
10. In construing the word 'may' his Lordship observed as follows:
'The question is, whether the power given to the County Ct. Judge by Section 5, Sub-section (3), Increase of Rent & Mtge. Interest (Restrictions) Act 1920 is to be exercised as if the appln. which had been dealt with in May had been dealt with under the Act which came into force on 2nd July. The question is whether Parliament merely intended to give the County Ct. Judge, a rigid power which he must exercise, if he is satisfied that the order would not have been made; or whether Parliament intended to give him a discretion--the Judge being otherwise functus of ficio--to reoppn the matter, if in the particular circumstances he thought fit to do so. That is the difference between the power to apply an Act of Parliament & an obligation to do so. Stated quite briefly, the real point that we have to decide is whether the word 'may' in the sub-section must be read as 'shall.' Our attention has been called to a series of authorities on that question, but they do not really assist, because in every statute containing the word 'may' in such a connection the Ct. must consider the general object & the subject-matter of the Act of Parliament & the surrounding circumstances. 'May' primarily means 'may' although in some cases where Parliament has used it the Cts. have interpreted it to mean 'shall.'
On looking at Section 6, Sub-section (3) & the general scheme of this legislation, I have come to the conclusion that in this case the word 'may' means 'may' & not 'shall & that the sub-section gives the County Ct. Judge a discretion with regard to the question of applying or not applying the provisions of the new Act,'
11. A similar view was taken in this Ct. in the case of Manindra Nath v. Fazlul Haq, 51 C. W. N. 148, where the word 'may' occurring in Section 9B (3), Calcutta House Rent Control Order, 1943, was similarly construed. It may also be noted that in Section 18 (5) of the Act of 1950, the word is 'shall.' 'The Ct. shall exercise the powers of granting relief.' But in the section of the amending Act, the word is 'may.' The Ct...' may rescind or vary the decree.' The legislature has made a difference in the two sections & I have no doubt that by using the word 'may' it has conferred a discretion on the Ct. in the matter of rescinding or varying the decree. It never made it obligatory on the Ct. to grant relief as has been contended for by Mr. Dutt.
12. Therefore we cannot accept Mr. Dutt's contention that the word 'may' in the section should be read as 'shall.' The word 'may' means 'may' & the Ct. may or may not vary or rescind the decree as the circumstances may require. Being then a matter of discretion, the Ct. will take into consideration all the facts & circumstances of the case before it makes an order under Sub-section (6). The Ct. should not make an order unless it is just & equitable to do so. Take the following illustration: A landlord gets an ejectment decree against a tenant & also an order directing the Sheriff to give possession; the Sheriff goes to the premises to give possession when the tenant implores the landlord to stay his hands saying that the tenant's son is so seriously ill that his removal from the premises at that moment might cost his life. In these circumstances, the landlord stays his hands & asks the Sheriff to give a fortnight's time to the tenant to vacate. Accordingly the time is given. In the meantime the Act is passed. The son gets well. Will the Ct. permit the tenant to take shelter under Sub-section (6)? It is clear that but for the clemency of the landlord, he would have got possession & the remedy which the tenant now claims would not have been available him. I do not think in a case like this it would be just & equitable to make an order in favour of the tenant. The Ct. should be just to the tenant. The Ct. should be just to the landlord. If in a case like this, the Ct. cannot make an order giving relief to the tenant, I do not see how in the case under consideration the Ct. can make an order.
13. In the present case the landlord after getting the decree was very anxious to get possession. The tenants after applying for leave to appeal to the S. C. asked for stay of execution. That appln. was 'strenuously resisted by the landlord. Mr. Asoka Sen appearing on behalf of the landlord was prepared to give an undertaking to Ct. that if the decree was set aside in appeal, the landlord would restore to the tenant possession of the premises in question without any appln. being made by the tenants Under Section 144, Civil P. C. It was quite clear that the landlord was very anxious to get possession. If the undertaking by the tenants had not been given, there would, have been no stay. No ground was made out for stay. Ordinarily, therefore, the landlord would have got possession by the time the new Act came into force.
14. Having gained a benefit by giving the undertaking can the tenants now turn round & say that since in the meantime the amending Act has been passed, they are entitled to take advantage of that Act It seems to us that it would be very inequitable to allow the tenants to take advantage of such a situation; for by giving the undertaking the tenants raised an expectation in the mind of the landlords that in any of the events, namely, the appeal being dismissed by, the S. C. or by the tenants not prosecuting or abandoning the appeal, they would give up possession within fourteen days from the order. That being the assurance given by the tenants we do not think we should exercise a discretion in their favour. The expectation raised in the minds of the landlords must be fulfilled.
15. I have already held that Section 6 confers a discretion on the Ct. & in exercising the discretion the Ct. must see that no injustice is done. Here to allow the tenants to take advantage of the situation would be to do a great injustice to the landlord, & ordinarily we should not allow the tenants to take line benefit under the section after having given that undertaking. It is not necessary for us to say what the position would have been if the appeal had been continued in the S. C. All that we have consd. in this appln. is whether the tenants after giving the undertaking can go back on it and ask for the benefit. Our answer must be in the negative.
16. We would therefore dismiss the appln. with costs. The resps. are entitled to the costs of this appln. & the costs of & incidental to the appln. for leave to appeal to the S. C. which re sulted in the order of 20-7-1950.
17. I agree.