K.C. Das Gupta, J
1. The decision of this appeal by the defendant in an action for ejectment depends on the decision of a question of law whether in exercising powers under Section 14, West Bengal Premises Rent Control Act, 1950, hereinafter referred to as the 1950 Act, under the provisions of Section 18 (5) of that Act, the Court has to take notice of the proviso to Section 14 (3). Another question that was raised at first by the learned Advocate for the appellant, namely, that while the alleged ipso facto determination of the tenancy on which the action was based was stated to have taken place on 15-2-1948, the tenancy could not have been determined on that date as there had not been up to that date default of rents for three months accrued due after the West Bengal Premises Rent Control Act, 1948, came into operation, was given up when it was pointed out that the plaint did also aver defaults for other periods of three months accrued due after 1-12-1948, which defaults would undoubtedly result in ipso facto determination of the tenancy.
2. The facts are not disputed. The appellant and another were the monthly tenants of the premises at a monthly rent of Rs. 28-2-0 according to English calendar month. They had made default in payment of rent for the period from October 1947, to July, 1949, when the suit was instituted on 22-8-1949. When the trial Court delivered judgment on 22-6-1950, they were in arrears for the entire period from October 1947, to May 1950, the amount in arrears on that date being thus Rs. 900.
3. On the date of the institution of the suit, the West Bengal Premises Rent Control Act, 1948, was in force. The suit was pending for trial on the date when the 1950 Act came into force. Section 18 (5) of the Act, as it then stood and as it stood at the date when the trial Court delivered judgment, was in these words :
'If at the date when this Act comes into force, a suit for ejectment of a tenant is pending, whether in trial Court or in Court of first or second appeal in which no dacree 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 Bent Control (Temporary Provisions) Act, 1J48, the Court shall exercise the powers of granting relief against ejectment given by Section 14 of this Act following the provisions and procedure of that section as far as may be necessary, and 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.'
4. The trial Court held that it was bound to exercise powers under Section 14 of the 1950 Act and passed the following order :
'That the suit be decreed with costs on contest against defendant 2 and ex parte against defendant 1 subject to the condition of payment of the amount hereinafter mentioned. Defendants to vacate the disputed room within 30 days from date. In default plaintiffs shall be entitled to recover has possession of the same in execution of the decree. Plaintiffs shall recover Rs. 493-3-0 as arrears of rent from the defendants. Plaintiffs shall further recover damages from the defendant Rs. 28-2-0 per month on and from 16-2-1949 till the date of recovery of possession of the disputed room on payment of additional court-fees on calculation after subsequent application.
But if the defendants deposit Rs. 900 as arrears of rent from October, 1947, till May, 1950 and Rs. 130-5- 0 as interest on such arrears and Rs. 123-l0-0 as costs of this suit making an aggregate sum of Rs. 1153-15-0 within 15 days from date excluding this date, then the suit shall stand dismissed in full satisfaction of the plaintiff's claim.'
By the time the appeal came up for hearing Act 62 of 1950 had been passed and Section 18 (5) of the Act had been amended by substituting the words; 'on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of Sub-section (3) of Section 12' for the words 'on the ground of default in payment of arrears of rent under the provisions.'
5. Section 5 of the Amending Act, Act 62, provides inter alia that in all suits referred to in Sub-section 5 of Section 18 which were pending at the commencement of the 1950 Act, the 1950 Act as amended by Act 62 shall apply and shall be deemed always to have applied.
6. The result of these amendments obviously is that on the date the Court of appeal below heard the appeal, it was bound to hold that in disposing of the suit the trial Court had the duty of exercising the powers of granting relief against ejectment given by Section 14 of the 1950 Act. The Court of appeal did so hold; but holding further on the authority of a decision of this Court in the case of Sreenarain Mansinglca v. Amarnath Mishra, 87 Cal. L. J. 4 that the Court was bound to give effect also to the proviso to Section 14 (3) it decided that the powers of granting relief against ejectment could not be exercised, in. this case. It accordingly modified the decree of the trial Court by deleting the directions that the suit shall stand dismissed if certain payments were made. The question is whether the court of appeal below is right in this view that the exercise of powers under Section 14 under the provisions of Section 18 (5) is subject to the proviso to Section 14 (3).
7. It may be pointed out at the outset that the decision in Sreenarain Mansingka v. Amarnath Mishra, 87 Cal. L. J. 4 was given on the old Section 18 (5) before the amendment effected by Act 62. While, therefore, we have to take respectfully all the assistance we can from the reasoning on which the learned Judges who decided that case arrived at their conclusion that the exercise of the powers under Section 14 was in case under Section 18 (5), subject to the proviso to Sub-section (3) of Section 14, the decision is not strictly a binding authority on the question now before us.
8. Before considering the reasoning in that case and other cases in which this question has been considered, it is necessary to set out the relevant provisions of Section 12 (1) and also Section 14 of the 1950 Act.
'12. (1).-Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired:
Provided that nothing in the sub-section shall apply to any suit for decree for such recovery of possession.
(i) subject to the provisions of Section 14 where the amount of two months' rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 19.'
14. (1).-If in a suit for recovery of possession of any premises from the tenant the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 12, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effect thereof upto the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine an 1 a three-eighths per centum per annum from the day when the rents became arrears upto such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.
(3).-If within the time fixed in the order under Sub-section (1), the tenant deposits in the Court the sum specified in the said order, the suit so far as it is a suit for recovery of possession of the premises, shall be dismissed by the Court. In default of such payment the Court shall proceed with the hearing of the suit.
Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in Clause (i) of the proviso to Sub-section (1) of Section 12 on three occasions within a period of eighteen months.'
9. It seems clear that in a case instituted after the 1950 Act came into force the Court's power to dismiss the suit in so far as it is for recovery of possession is limited by the proviso to Sub-section 3 of Section 14. Does it necessarily follow that in a case under Section 18 (5) also the Court's powers are so limited? Bose J. held in the case of Amar Nath Misra v. Sreenarain Mdnsingka, 54 Cal. W. N. 617 that the powers were so limited. In coming to this decision Bose J. stated that the proviso is an integral part of the section and Section 18 (5) makes the entire Section 14 including the proviso applicable to pending suits. It was in appeal from this decision that the decision reported in Sreenarain Mansingka v. Amarnath Mishra, 87 Cal. L. J. 4 was given. The Court of Appeal (Harries, C. J. and Banerjee J.) upheld Bose J.'s view that the powers of the Court to give relief in cases under Section 18 (5) were limited by the proviso to Sub-section 3 of Section 14. Banerjee J. said in the judgment:
'The plain meaning of Section 18 (5) of the Act of 1950 is this: If you want the relief, you must come within the four corners of Section 14. You must show that you have complied with the provisions of the Act of 1950 which enables you to ask for the relief to be given and which confers jurisdiction on the Court to grant the relief. . . .'
10. With great respect to the learned Judges, I think that the reasoning ignores the difference between a case instituted after the 1950 Act came into operation and one which was pending when this Act came into force. It also ignores the words 'following the provisions and procedure of that section as far as may be necessary'. It is important to note the words 'as far as may be necessary'. Necessary for what? The obvious answer to this question is 'necessary for the purpose of giving relief.' What the legislature was saying by this extraordinary provision for retrospective operation of the powers of the Court under Section 14 was that such of the provisions of Section 14 as are necessary for the purpose of giving relief will be followed by the Court in exercising its powers in granting relief against ejectment by Section 14. Obviously, the provisions of Sub-section 4 of Section 14 cannot have application to a case of this nature. The provisions in Sub-section 4 of Section 14 under which a plaintiff landlord may make an application for an order on the tenant defendant to deposit rent and arrears of rent and the Court may make such an order of deposit and on the failure of the tenant to deposit such arrears of rent within a certain time the Court shall order the defence against ejectment to be struck out, has obviously no application. The provisions of Section 14 that are necessary for the purpose of giving relief are the provisions of Sub-section 1, without the words.....If in a suit......section 12, Sub-section (2), and the main portion of Sub-section 2 without the proviso. The proviso cannot by any stretch of imagination be considered necessary for the purpose of giving relief. The proviso does not aid relief; it limits the powers of the Court to give relief.
11. In my judgment, the clear intention of the legislature in using the words, 'following the provisions and procedure of that section as far as may be necessary' was that the provisions of Section 14 in aid of relief should only be operative and not the provisions which limit that power of relief.
12. This consideration alone justifies, in my opinion, the conclusion that when Section 18 (5) speaks of exercise of, 'powers of granting relief against ejectment given by Section 14' it means the power given by sub-sections 1, 2 and 3 of Section 14, without the limitation imposed by the proviso.
13. Another important consideration which, in my judgment, justifies the same conclusion is that if the view taken by the Judges be correct, the absurd position results that if the tenant files an application in the trial Court, he will get relief against ejectment, by paying rents in arrears even if he had been guilty of the defaults mentioned in the proviso to Sub-section 3 of s, 14, while if he makes no such application there and the suit is pending in appeal, the Court has to refuse him such relief in spite of Section 18 (5) if he had been so guilty.
14. This was pointed out forcefully by Box-burgh J. in the case of Babulal Lakshmichand v. Jivraj Lakshmi Thakar, 55 Cal. W. N. 762, After noticing the decision in the case of Amarnath Misra v. Sreenarain Mansinglca (54 Cal. W. N. 617) his Lordship said:
'In my opinion, this decision is erroneous. If it is not, we have the startling position that an order that was correct under the law applicable in the trial Court was incorrect because a different law was concurrently applicable in the appellate Court.'
15. It may be mentioned that in an earlier case S.K. Chaudhuri v. Joy Kumar Sarkar, 55 Cal. W. N. 75 decided in June 1950, Roxburgh J. had said:
'We may take it that the provision made under Section 18 (5) is intended to achieve the same substantial result in these pending cases as is provided in Section 18 (1) for cases where a decree for default had already been passed under the 1948 Act before the 1950 Act came into force.'
There also his Lordship recorded his decision that the proviso to Sub-section 3 of Section 14 would not apply to cases under Section 18 (5), Roxburgh J.'s decision in that case on the question of the applicability of the 1950 Act was set aside in a Letters Patent Appeal, Joy Kumar Sarkar v. S.K. Chaudhuri, 55 Cal. W. N. 471 and the Appellate Court (Das and Lahiri JJ.) did not consider it necessary to decide there the question whether the proviso to Sub-section 3 of Section 14 did apply to eases under Section 18 (5). It is important to note however that the Court of appeal did hold that Section 18 (5) is complementary to Section 18 (1).
16. I respectfully agree that Section 18 (1) is complementary to Section 18 (5) and that an interpretation of Section 18(5) which results, in these two parts having such different scopes of operation should be avoided, if possible.
17. On all these considerations, I have come to the conclusion that on a proper interpretation of the words used in Section 18(5) of the 1950 Act, it must be held that the exercise of the powers for granting relief against ejectment is not limited by the proviso to Sub-section (3) of Section 14.
18. In this view, I would set aside the judgment and decree passed 'by the Court of appeal below and restore those of the trial Court. In the circumstances of the case the parties will bear their own costs in the appeal.
19. Bachawat J.- I agree. If it was the intention of the legislature to incorporate the whole of Section 14 into Section 18 (1), West Bengal Premises Rent Control (Temporary Provisions) Act 1950, they would have enacted that the provisions of Section 14 would apply to the suits referred to in Section 18 (5). That however is not the enactment. The Court is enjoined to exercise a power of granting relief under Section 14 and to follow the provisions and procedure of that section as far as may be necessary. Section 14 gives a power of granting relief. The exercise of that power is imperative. The provisions and procedure of Section 14 are to be followed not wholly but as far as may be necessary for the exercise of that power.
20. Both sub-sections (1) and (3) of Section 14 of the 1950 Act refer to Clause (i) of the proviso to Sub-section (1) of Section 12 of that Act. That clause denies protection from eviction to tenants who have made default in payment of 2 months rents. Section 14 supplements that clause. It gives the Court a power of granting relief against eviction to such tenant. The conditions for the exercise of such powers are fixed with reference to that clause by the proviso to Sub-section (3) and by the opening words of Sub-section (1), viz. :
'If in a suit for recovery of possession of any premises from the tenant, the landlord would get a decree for possession but for Clause (i) of proviso to Sub-section (1) of Section 12.'
The Court has the power of granting relief if there is default under that clause but only if such default is not on 3 occasions within the period of 18 months. The conditions, under which the Court has power of granting relief under Sub-section (3) of Section 18, are specified in the opening words of that section. The Court has power to give relief under Sub-section (3) of Section 18 in a pending suit against ipso facto determination of the tenancy under Section 12(3), West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. The opening words of Sub-section (1) and the proviso to Section 14 (3) are inconsistent with the express terms of Section 18 (5) and are inapplicable in a case where the Court exercises the power of granting relief under that section. Furthermore, these provisions are not necessary for the exercise of such power and cannot be imported into Section 18 (5).
21. The construction that the proviso to Section 14 (3) is imported into Section 18 (5) is therefore not warranted by the grammatical and ordinary sense of the words used in the Statute.
22. Such construction is also not warranted either by the history and the cause of the enactment or by the context or by the consequences to which it will lead.
23. The history of Section 18 and its subsequent amendment is well known. The provisions of Section 12 (3), West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 for ipso facts determination of tenancy caused great hardship to the tenants. Section 18 was enacted to give protection to such tenants specially. There was a conflict of judicial opinion and a Division Bench of this Court held that such tenants will get no protection under Section 18. The legislature thought that the purpose of that Act was defeated by placing on it too literal a construction and enacted the West Bengal Premises Rent Control (Amendment) Act, 1950. The legislature in no uncertain language has declared its intention that such tenants always were and are entitled to relief under sub-sections (1) and (5) of Section 18. In case of ambiguity, it is our duty as Judges to make such construction of the Statute as will suppress the mischief and advance the remedy. By the express words of Section 11 (3), West Bengal Premises Kent Control Act of 1948, the tenant whose interest was ipso facto determined was deemed not to be a tenant for the purpose of the 1948 Act and he could not deposit any rent with the Rent Controller during the continuance of that Act. That Act was in operation for a period of 16 months. In a very large number of cases therefore such tenants had made defaults in payments of two months' rent within a period of 18 months. The construction contended for by the respondent will deny relief to tenants in such cases and defeat the purpose for which the Act was enacted.
24. The meaning of Sub-section (5) of Section 18 is to be collected from the entire section and all its parts are to be construed with reference to each other as a harmonious whole. Section 18 (5) is complementary to Section 18 (1) which gives relief in a suit in which a decree has been passed. In an application under Sub-section (1), the proviso to Section 14 (3) admittedly has no application and a tenant who is guilty of default within the meaning of that proviso will be entitled to relief. In the absence of clear words, it is difficult to attribute to the legislature an intention that on a similar state of facts in an application under Section 18 (5) that proviso will apply and the tenant will not be entitled to any relief. In an appropriate case, the tenant, who is guilty of default within the meaning of proviso to Section 14 (1), could appeal from a decree for ejectment and could also apply for vacating the decree under Section 18 (1). I agree with Roxburgh J., that it is anomalous to hold that he could succeed in the application under Section 18 (1) but on the same fact he would fail in the appeal. The construction importing the proviso to Section 14 (1) into Sub-section 18 (5) leads to manifest absurdity, injustice and inconvenience. Such construction should be rejected where there is no other construction which is more reasonable and does not lead to such absurdity and injustice.
25. I am convinced that the decision in Sreenarain Massing v. Amarnath Mishra, 87 Cal. L. 3. 4 is erroneous and we ought not to follow it. Having regard to the fact that the Act has been amended since that decision, we do not consider it necessary to refer the matter to the Full Bench, Sitting as a single Judge I have followed that decision in one unreported case but the correct-ness of that decision was not then challenged.