Renupada Mukherjee, J.
1. This appeal raises a pure question of law, viz., whether an assignee of a landlord who has purchased the landlord's interest during the pendency of an ejectment suit without purchasing the arrears of rent which had accrued during the time of the vendor can carry on for his own benefit an application under Section 14(4) of the West Bengal Premises Rent Control Act, 1950 started by the original landlord.
2. In order to appreciate how this question of law has arisen in the present case I need state the following facts about which there is practically no controversy.
3. One Rachael Sasoon and four other persons who are trustees of the estate of late Moise Abraham Sasoon instituted an ejectment suit in the Fourth Bench of the Court of Small Causes. Calcutta against one P. Singh, respondent of this appeal in respect of one room on the first floor of premises No. 21 Old Court House Street. Calcutta. The suit was instituted on 6th July 1953 on the ground that the tenant was a defaulter and was liable to be ejected. The defendant entered appearance and contested the suit taking a defence against the prayer of the plaintiffs for ejectment.
4. When the suit was in progress for some time the plaintiffs-landlords filed an application on 18th November, 1953 under Section 14(4) of the Rent Control Act of 1950 praying for a direction on the defendant to deposit all arrears of rent from November 1952 and also to deposit current rent month by month.
5. During the pendency of the suit the original plaintiffs transferred their right, title and interest in the disputed premises in favourof Messrs. India Steamship Company Limited, which is a Limited Company, by a conveyance dated the 3rd April, 1954 and on the prayer of the original plaintiffs and also of the assignee, the Limited Company was substituted in place of the original plaintiffs by an order of the learned Judge dated the 23rd June 1954. The substituted plaintiff prosecuted the application under Section 14(4) already started by the original plaintiffs and on 2nd August, 1954 the trial Judge passed an order directing the defendant tenant to deposit all arrears of rent from November 1952 to July 1954 at the rate of Rs. 125/- per month and also to deposit current rent from August 1954 by the 15th day of the succeeding month. The defendant made some unsuccessful attempts to have the order reviewed by the trial Judge with the result that on account of his failure to deposit the arrears of rent his defence against ejectment was struck out and the suit was heard ex parte and decreed by the learned trial Judge on 2nd March, 1955.
6. The defendant preferred an appeal which was heard by two Judges of the Special Bench of the Court of Small Causes, Calcutta. The Special Bench held that the Assignee Company could not prosecute the application under Section 14(4) of the Rent Control Act, 1950 as it had not purchased the arrears of rent which had accrued during the regime of the original landlords and which was included in the said application. So the Special Bench was of opinion that the order of the trial Judge striking out the defence of the tenant was illegal. In that view of the matter the appeal was allowed and the suit was remanded to the trial Judge for disposal on merits after setting aside the order passed by the trial Judge under Section 16(4) of the Rent Control Act of 1950. The assignee Company has filed this Second Appeal challenging the correctness of the judgment passed by the Special Bench.
7. As I have already stated above, the only question which arises for my decision in this appeal is whether under circumstances set forth above, the assignee of the interest of a landlord during the pendency of an ejectment suit can maintain and prosecute an application under Section 14(4) of the Rent Control Act of 1950 already started by the original landlord.
8. Mr. Meyer, Counsel on behalf of the appellant submitted before me that Section 14(4) imposes a disability on a defaulting tenant and a substituted plaintiff in an ejectment suit can take advantage of this disability, because by the very fact of his substitution, he acquires all the rights and privileges of the original plaintiff. In my opinion this submission of Mr. Meyer stated in such a broad manner cannot be accepted. Whatever may be the general rights and liabilities of a substituted plaintiff who acquires the right, title and interest of an original plaintiff during the pendency of En ejectment suit, I am of opinion that such a substituted plaintiff cannot maintain and prosecute an application under Section 14(4) of the Rent Control Act of 1950 started by his predecessor-in-interest unless he has also purchased the arrears which had accrued during the time of the vendors. Section 14(4), as it occurs in the statute of 1950, is not so much a section penalising a defaulting tenant as a section enabling the landlord to recover his arrears in a summary fashion without having recourse to a regular suit for recovery of such arrears. A person who has no right to such arrears cannot obviously maintain or prosecute such an application started by his predecessor-in-interest. This should be clear from the concluding sentence of Section 14(4) of the Rent Control Act of 1950 which runs as follows:
'The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so.'
The sentence quoted above would show that in order that a plaintiff landlord may successfully prosecute an application under Section 14(4), it is essential that he must have a right to get the arrears of rent claimed in such application. It has been held in some cases that a landlord cannot claim time-barred rent in an application under Section 14 (4) of the Rent Control Act of 1950 : vide the case of Magunial Javerchand v. Raja Janakinath Roy Narendra Nath Roy & Co. Ltd., reported in 59 Cal WN 747 (A). So the arrears of rent claimed in an application under Section 14(4) must be recoverable by the person prosecuting the application. Admittedly, the appellant Company did not purchase such arrears. In my judgment the appellant is not, therefore, entitled to prosecute the application started by its predecessor-in-title inasmuch as the application includes arrears of rent which had accrued during the time of the vendors.
9. A contrary view seems to have been Taken by Guha J. in an unreported case, viz., Civil Rule No. 1219 of 1953 (Cal) (B). The lower appellate court sought to distinguish that case on the footing that the assignee there figured in the records along with the original plaintiffs. That is, however, a distinction without any difference, because Guha J., who disposed of the Rule laid down that the purchaser in that case who had not purchased the arrears up to the time of the disposal of the application under Section 14(4) was entitled to the benefit of the said application. With great respect to the learned Judge, I am unable to fall in with this view and I hold, for reasons already stated, that an assignee of a landlord who has not purchased the arrears of rent cannot maintain and prosecute an application under Section 14(4) started by his vendor in respect of such arrears as accrued during the time of the vendor.
10. This disposes of the appeal preferred by the appellant. The appellant, however, had filed an application under Section 14 (5) of the Rent Control Act, 1950 for a direction upon the respondent tenant to pay up such arrears as have accrued after the purchase of the premises by the appellant. Mr. Meyer appearing on behalf of the appellant contended that before passing any final order in the appeal I should dispose of this application & give a suitable direction upon the tenant to deposit such arrears as have fallen due after the purchase of the appellant. I cannot allow this application for two reasons. In the first place, I have heard this appeal on the merits simultaneously with the application made under Section 14(5) of the Rent Control Act, 1950 by the appellant and I have come to the conclusion that there is no substance in this appeal. In the second place, the respondent tenant has as yet got no defence against ejectment on the record. Such defence as had been filed in the court of the trial Judge was struck off by the trial Judge. The Special Bench no doubt set aside the order of the learned trial Judge striking out the defence but the operation of that order has not yet taken place. In the eye of law the defendant tenant has not got any defence against ejectment as yet. The appeal was fought out before the Special Bench of the Court of Small Causes, Calcutta only on the question whether the defence of the tenant had been properly and legally struck off by the trial Judge. Of course, after the disposal of the Second Appeal the defence already filed by the tenant before the trial Judge will be revived. It will then be open to the present appellant to file an application before the trial Judge under Section 14(4) of the Rent Control Act of 1950 if it is so advised and it may claim therein such arrears as might have accrued after its purchase. The allowing of an application under Section 14(4) or 14(5) of the Rent Control Act of 1950 is discretionary with the Court and for reasons given in this order I refuse to allow the application under Section 14(5) at this stage.
11. In the result, this appeal is dismissed.
12. Considering the circumstances of this case I do not make any order as to costs in this appeal.
13. Let the records be sent down to the courts below as early as possible.