1. The appellant, Metal Press Works Limited (hereinafter referred to as the tenant) has filed this appeal on July 25, 1966 from the decree dated June 9, 1966 passed by A. N. Ray, J. in favour of the respondent J. K. & Sons (hereinafter referred to as the landlord) in a suit for possession of portion of premises No. 165, Lower Chitpur Road, Calcutta (hereinafter referred to as the premises) and for mesne profits. The facts and circumstances relating to this appeal are briefly as follows :
2. In August 1959, by an agreement in writing the landlord agreed to let out the premises from Aug. 1, 1959 to the tenant at a total monthly rent of Rs. 900/-inclusive of owners' and occupiers' share of muncipal taxes, but exclusive of electric light and fan charges which the tenant agreed to bear. The agreement provided that the tenant shall pay to the landlord the total rent of Rs. 900/- within 15th day of each and every calendar month for the month immediately preceding. By the agreement, the tenant declares that should the tenant at any time fail to pay rent for two consecutive months or make any breach of any of the terms mentioned in the agreement the landlord would be at liberty to eject the tenant. Pursuant to the agreement the tenant went into occupation of the premises as such monthly tenant from Aug. 1, 1959. On June 10, 1962, the tenancy was terminated on behalf of the landlord by a notice to quit on the expiry of the last day of July 1962. It is stated in the notice that the tenant has failed to pay rent and other charges from Jan. 1962. On Sept. 22, 1962, the landlord filed the suit against the tenant on the ground that the tenant has failed and neglected in spite of demands to pay rents for the months of Jan. 1962, Feb. 1962, March 1962, April 1962 and May 1962 or any portion of such rent. The claim of arrears of rent in the suit was for Rs. 4, 500/-. In the plaint, the mesne profit was claimed at the rate of Rs. 70/- per day from July 1, 1962 as the tenant was in wrongful occupation.
3. Written statement was filed by the tenant on March 5, 1963. The tenant admitted the tenancy agreement, but stated that the rate of rent was Rs. 740/-per month. With regard to the agreement in writing the tenant stated that the agreement was not registered and as such inadmissible.
4. On Dec. 21, 1962, the tenant made an application under Section 17 (2) of the Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) for determination of the dispute as to the amount of rent payable by the tenant to the landlord and for an order that pending the final determination of the dispute a preliminary order in terms of Section 17 (2) (a) of the Act be made and for liberty to deposit monthly rent as would be adjudicated upon by the Court.
5. On Feb. 19, 1963 a preliminary order was passed under Section 17 (2) (a) of the Act holding, inter, alia, that (a) Rs. 9,000/- is due from the tenant for the period from January 1962 to Oct. 1962 both inclusive; (b) Rs. 160/- is due from the tenant for the month of Nov. 1962 and (c) Rs. 1,800/- is due from the tenant for the months of Dec. 1962 and Jan. 1963. It was ordered that the tenant will deposit or pay Rs. 900/- per month and month by month by 15th day of each successive month with effect from Feb. 1963, the first of such deposit to be made by 15th of March 1963.
6. On June 4, 1963 final order was passed u/s. 17 (2) (b) of the Act determining the rate of rent payable by the tenant at Rs. 900/- per month.
7. When the suit came up for hearing before A. N. Ray, J. Sub-section (4) of S, 17 of the Act was then as follows :
'Sub-section (4) : If a tenant makes deposit or payment as required by Sub-section (1), Sub-section (2) or Sub-section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord :
Provided that a tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.'
In view of the proviso to Sub-section (4) which stood at that time the tenant was not entitled to get the benefit of protection against the eviction as it was a case of default in payment of rent for four months within a period of twelve months. At the trial, the tenant did not raise the contention regarding the validity of the notice, but raised the point that relief against forfeiture for non-payment of rent be granted under Section 114 of the T. P. Act. 1882. The suit was tried on the following issues :
1. Is the plaintiff entitled to mesne profit? If so, at what rate
2. Is the defendant entitled to relief against forfeiture
3. To what relief is the plaintiff entitled
With regard to issue No. 1, the learned Judge held that the measure of mesne profits should be Rs. 1.25 per sq. ft. and that the landlord is entitled to mesne profits at that rate for 1600 sq. ft. occupied by the tenant from Aug. 1, 1962 till delivery of possession. With regard to forfeiture, issue No. 2, the learned Judge held that the tenant is not entitled to any relief against forfeiture. With regard to issue No. 3, the learned Judge held that the landlord is entitled to a decree for possession.
8. In the appeal before us Mr. Hirak Mitter with Mr. P. Nath for the appellant tenant has first contended that the learned Judge was not right in his decision that tenant is not entitled to relief against forfeiture under Section 114 of the T. P. Act. He has also contended that the decision of the learned Judge with regard to mesne profits was erroneous. On the third day of argument, however, Mr. Mitter has taken a point which has the effect of shortening the further contentions in this appeal. He has argued that during the pendency of the appeal proviso to Sub-section (4) of Section 17 of the Act has been substituted by a new proviso. Under the new proviso, the landlord is not entitled to a decree for possession against the tenant. He submits that in view of substituted proviso to Sub-section (4) of Section 17 the decree for possession passed by the learned Judge should be set aside. In this respect he has relied on the decision of the Special Bench of this Court in Jamuna Prasad Chowrasia v. Kisorilal Poddar, 0043/1973 : AIR1973Cal204 .
9. Sub-section (4) of Section 17 of the Act has been amended by the West Bengal Premises Tenancy (Amendment) Act, 1969 (West Bengal Act 30 of 1969). The Amendment Act says that it shall be deemed to have come into force on Aug. 26, 1967 and for the existing proviso to Sub-section (4) the following proviso shall be substituted :
'Provided that a tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.'
10. Section 5 of the Amendment Act Igives retrospective effect to the amend-jment made. It says that this Act shall have effect 'in respect of suits including appeals which are pending at the date of commencement of this Act.'
11. In any event, it is well settled, that in moulding relief to be granted in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. (See Surinder Kumar v. Gian Chand, : 1SCR548 ).
12. So, Mr. Mitter is, right in his submission that for the purpose of deciding this appeal the new proviso to Sub-section (4) of Section 17 is attracted. Now, two questions arise for consideration. What is the meaning and effect of this new proviso Does the new proviso apply to the case of the tenant in this appeal to give it protection against eviction
13. As I read the proviso, it seems to me that after the amendment, the new substituted proviso has given further protection to the tenant against eviction on the ground of default in payment of rent. Under the new proviso the landlord shall not get a decree for possession against a tenant who makes deposit in payment of rent as required by Sub-section (1) or (2) or (2A) of Section 17. The new proviso to Sub-section (4) speaks of the tenant who shall not be entitled to any relief against eviction. It says that a tenant shall not be entitled to any relief if having obtained such relief once in respect of the premises he has again made default in payment of rent for four months within a period of twelve months.
14. The word 'again' means 'another time'. Tt must be at least for the second time. Thus, the words 'he has again made default in payment of rent for four months' means that there is more than one default of four months. In other words, there must be default for four months at least on the second occasion.
15. The new proviso has been interpreted by P. N. Mookerjee, J. in the Bench decision in Gour Dev Mukherjee v. Purnima Devi, (1968} 72 Cal WN 155. Delivering the judgment of the Court, the learned Judge said at p. 156 of the report :
'.....Under this new or altered proviso, the tenant would not be prejudiced in the matter of relief under the said Section 17 (4) (main part) provided that the default for four months was only of the first instance or occasion or, in other words, that there was only one default for four months.'
In the facts of that case there was no second default for four months on the part of the tenant and the tenant complied with the provisions of Section 17 (2), read with Section 17 (1) in the matter of the relevant deposits. Accordingly, in view of the change in law, the decree for ejectment passed by the Court below was set aside.
16. The meaning of the expression 'having obtained such relief once' in the proviso after amendment has given rise to different arguments as to legislative intent. Does it mean the relief obtained in a previous suit filed by the landlord against the tenant, or does it contemplate the case of a tenant who has committed two defaults within a period of twelve months before filing of the suit However, Mr. Hirak Mitter has invited our attention to the decision of the Special Bench of this Court in Jamuna Prosad Chowrasia v. Kisorilal Poddar, 0043/1973 : AIR1973Cal204 where the amended proviso came up for consideration. In that case reference was made under Chap. II, Rule 1 (ii) of the Appellate Side Rules of the High Court. The plaintiff in that case alleged that the defendant has defaulted in payment of rent for four months within a period of twelve months. Before the learned trial Judge one of the issues was whether the defendant was in default in payment for four months within a period of twelve months by making no payment of rent. The learned Judge held in favour of the plaintiff and passed the decree. The new proviso in Sub-section (4) came into effect during the pendency of the appeal. It was contended on behalf of the appellant that since the appellant had made deposits in terms of Section 17 (2) and since he has not obtained any relief under Sub-section (4) on any earlier occasion, no decree or order for delivery of possession to the landlord on the ground of default in payment of rent by the appellant could be made by reason of the aforesaid proviso. It was also argued on behalf of the appellant that the amend-ed proviso contemplates that if only a defaulting tenant after having obtained any relief from a Court under Sub-section (4) in a suit again commits the same default and is again sued for ejectment he can-not in those circumstances get any relief under Sub-section (4) in the subsequent suit.
It was contended that since the appellant had not obtained the above-mentioned relief from eviction in an earlier suit he was entitled to the relief in the present suit. There was difference of opinion between the learned Judges in the appeal before Division Bench. The contention of the appellant was accepted by S. K. Mukharji. J. The other learned Judge. A. N. Ray, J. on the other hand, accepted the argument advanced on behalf of the respondent-landlord. The argument was that the second default contemplated in proviso to Sub-section (4) of Section 17 is not a default which is the subject-matter of a second suit and that all the defaults referred to in the proviso are defaults in the same suit. The contention in substance was that where a defaulting tenant has made a default in payment of rent for four months for the second time within a period of twelve months the tenant would not be entitled to the relief given by Sub-section (4) of Section 17.
17. The Special Bench accepted the view taken by S. K. Mukharji, J. The Special Bench held that the view of P. N. Mookerjee, J. in Gour Dev Mukher-jee v. Purnima Devi, (1968) 72 Cal WN 155 did not support the construction given to the proviso by A. N. Ray, J, Delivering the judgment of the Special Bench, Arun K. Mukherjea, J. observed :
'It is nobody's case that the appellant has on an earlier occasion obtained relief under Sub-section (4) of Section 17. Therefore, the appellant will be entitled to relief under the Sub-section (4) this time.' 0044/1973 : AIR1973Cal213 Learned Judge further observed :
'It is nobody's case that the appellant has obtained relief under the said proviso in an earlier suit. It is clear, therefore, that no decree of eviction or no order for delivery of possession of the suit premises could be made in the present suit.' 0044/1973 : AIR1973Cal213 .
18. The judgment of the Special Bench is binding upon this Court. The facts of the Special Bench case are also similar to those of the instant case. On the facts of this case also it is nobody's case that the tenant had on an earlier occasion obtained relief under Sub-section (4) of Section 17. It is also nobody's case that the tenant had obtanied relief under the said proviso in an earlier suit. In any event, on the facts of this case there has been no default of four months on the part of the tenant for the second time within a period of twelve months. So, whatever construction to the proviso is given the tenant in this case is entitled to relief under this sub-section if the tenant has made deposits as required by Sub-section (2) of Section 17. Now, the question is has the tenant done so
19. On behalf of the tenant it is argued that such deposits have been made in terms of orders of the Court under Section 17 (2). Mr. Dipankar Ghosh for the landlord has, however, argued that the first stgae of deposit under Section 17 (2) has not been made. He submits that Section 17 (2) contemplates three distinct stages of deposit of rent by the tenant in Court. First, the tenant shall within the time specified in Section 17 (1) deposit the amount admitted by him to be due. Secondly, he must pay or deposit the amount in terms of the preliminary order passed by the Court. Lastly, he must comply with the final order determining the rate of rent and the amount to be deposited or paid in terms of the final order. His contention is that although the last two stages have been complied with, but the tenant has not complied with the first stage. I am unable to agree with this contention of Mr. Ghose as the section says that the tenant shall deposit the amount 'admitted by him to be due' from him. So, it seems to me that the first stage of Section 17 (2) has been complied with. In any event this point has not been taken by the landlord in the application under Section 17 (2) by the tenant; and the tenant has complied with the preliminary and final orders of the Court under Section 17 (2). From the records of the Court which have been summarised in a tabular form before us, it appears that the tenant made deposits of payments as required under Sub-section (2) of Section 17.
20. In this view of the matter no decree for possession can be passed against the tenant in this appeal.
21. As the landlord is not entitled to decree for ejectment in view of my above finding, question of passing an order relieving the tenant against forfeiture under Section 114 of the T. P. Act does not arise. In any event, the argument of Mr. Hirak Mitter on the point of forfeiture is not acceptable by me in view of the decision of the Division Bench consisting of P. N. Mookerji and D. Basu, JJ. in Ganesh C. Nandy v. M/s. J. N. Chat-terjee & Bros., (1966) 70 Cal WN 676 where the learned Judges held that Section 114 of the T. P. Act, on its terms, would not apply to a case of so-called forfeiture under the West Bengal Premises Tenancy Act, 1956, on account of non-payment of rent. In that case the learned Judges had referred to the previous Bench decision of this Court in Deo Chand Singh v. Shah Mohammed, : AIR1965Cal398 but did not agree with the same following the decision of the Supreme Court in Mangilal v. Sugan Chand, : 5SCR239 . Further, it seems to me that under the facts of this case, Section 114 of the T. P. Act cannot apply. Section 114 gives relief against forfeiture for non-payment of rent. What is forfeiture is stated in Section 111(g) of the T. P. Act. A lease of immovable property is determined by forfeiture in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter. Therefore, the condition for re-entry should be an 'express condition'. That express condition is to be found in the tenancy agreement in writing dated Aug. 1, 1959. But according to the tenant, the tenancy agreement was not registered and as such it is inadmissible in evidence. (Para 2, sub-para C of the Written Statement). In the judgment of the Court of Appeal, dated 5-5-1965 in Appeal No. 142 of 1963 : M/s. Metal Press Works Limited v. J. K. & Sons, it appears that this point of the tenant was accepted. The learned Judge said : 'the agreement was not registered. Hence it was not admissible in evidence.'
22. In the above view of the matter also Section 114 of the Transfer of Property Act will not apply.
23. As there could not be any decree for possession, no question of mesne profits can arise under the facts of this case. However, as Section 17, Sub-section (4) of the new proviso applies in this case, the appeal must be and the same is allowed. The decree for possession passed by the learned Judge is, accordingly, set aside.
24. With regard to the costs of the appeal, Section 17 (4) povides that where decree for possession is set aside this Court may allow such costs as it may deem fit to the landlord. In the facts of this case, it seems to us, that payment of one-half of the costs of the appeal to the landlord would serve the purpose of justice. It is ordered accordingly that the appellant-tenant must pay one-half of the costs of the appeal to the respondent-landlord.
Ramendra Mohan Datta, J.
25. I agree.