S. Mukharji, J.
1. On 7-3-1966 there was an agreement for tenancy between the petitioner and the respondent, herein in respect of suit No. 2 in the ground-floor of premises No. 6. Russel Street regarding four rooms, three baths, one pantry and one verandah at a monthly rental of Rs. 2,000/- according to the English calendar month. It is stated that the petitioner wanted to start a Nursing Home in the said premises in question. The petitioner's case is that the contract rent was fixed high because the landlord had agreed to renovate the rooms and to make certain additions and alterations, which, however, the landlord did not do. Shortly before the tenancy was created, it has been further stated, the premises in question had a monthly rental of Rs. 500/-, the previous tenant being National and Grindlay's Bank Ltd. On the 29th of June, 1966, the petitioner made an application to the Controller for fixation of fair rent. On the 14fh October, 1966, notice for ejectment of the petitioner was given by the respondent expiring with the month of November. In the meantime after inspection by the Rent Controller's Inspector and personal inspection by the Rent Controller, evidence was taken on behalf of both sides between 11th May, 1967 to 14th July. 1967. The petitioner's argument in that case was also heard. The respondent argued in part. Thereafter on 7th of June. 1967 an ejectment suit was filed by the respondent against the petitioner being suit No. 1284 of 1967 in the Original Side of this High Court, the grounds being default and subletting. On the 25th November, 1967 written statement was filed by the petitioner and rent deposited in accordance with the provisions of the West Bengal Premises Tenancy Act, 1956. On the 23rd October, 1967 the premises in question was requisitioned by the Government under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947. On the 24th of October, 1967 possession was taken by the Government of the said premises and the petitioner was dispossessed. On the 19th January, 1968 the Rent Controller dismissed the application made by the petitioner for fixation of fair rent as not maintainable.The said case was numbered as 435B of 1966. On the 6th of June. 1968 the petitioner applied to the Land Acquisition Collector for fixation of rent. On the 13th January, 1969 the appeal preferred by the petitioner against the order of the Controller in case No. 435B of 1966 was dismissed in Rent Appeal No. 15 of 1969 by the Court of Small Causes. Calcutta and the order of the Rent Controller dismissing the application of the petitioner for fixation of the fair rent on the ground that it was not maintainable was affirmed. On the 6th of February, 1969 the Land Acquisition Collector rejected the claim of the petitioner for compensation for requisition of the premises. On the 22nd of April. 1969 the petitioner moved under Article 227 of the Constitution this Civil revision application against the aforesaid order of the Court of Small Causes dated 13th of January. 1969 in Rent Appeal No. 15 of 1968 and the order of the Rent Controller in case No. 435B of 1966 dated 19th January, 1968. This rule originally came up for hearing before a Division Bench consisting of P. N. Mookherjee and Amiya Kumar Mukherjee, JJ., and by order dated 30th of April, 1970 the case has been referred to the Special Bench under Chapter VII. Rule 4 read with Rule 9 of the Appellate Side Rules of this Court. The main question that their Lordships felt arose in this case was whether during the pendency of a proceeding for fixation of fair rent under the West Bengal Premises Tenancy Act, 1956. at the instance of a tenant if the tenanted premises was requisitioned and taken possession of by the State Government under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, the said proceeding ceased to be maintainable as a matter of law and whether it would fail in limine on that preliminary ground. Their Lordships of the Division Bench felt that the question wag an important one and it necessitated reference to the Special Bench and accordingly the whole case has been referred to us.
2. The application for fixation of fair rent in this case had been made under the provisions of West Bengal Premises Tenancy Act, 1956. Therefore, it is necessary to refer to the relevant statutory provisions under the said Act in order to determine the controversy in this case. Section 2(h) of the said Act provides the definition of 'tenant' as follows:--
'(h) 'tenant' includes any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be. payable and also any person continuing in possession after the termination of his tenancy but shall not include any person againstwhom any decree or order for eviction has been made by a Court of competent jurisdiction.'
Section 4 provides the excess over fair rent to be irrecoverable. It stipulates that the tenant shall pay to the landlord fair rent where it has been fixed for any premises, such rent and in other cases the rent agreed upon until fair rent is fixed. It further provides, inter alia, that any sum in excess of the rent referred to in sub-section (1) shall not be recoverable by the landlord. Section 7 provides that where any sum or any other consideration has been paid by or on behalf of any tenant to a landlord in contravention of any of the provisions of the Act, the Controller may, on application made to him, within a period of six months from the date of such payment, order the landlord to refund such sum or the value of such consideration against the rent payable by the tenant. Sub-section (2) of the said section further, provides that the provisions of sub-section (1) mentioned hereinbefore, shall not apply to any casp of decrease of rent to which Section 12 applies. Section 8 provides how fair rent would be determined. Section 10 imposes upon the Controller the obligation of disposing of the applications made to him either by landlord or tenant in the prescribed manner to fix fair rent in respect of any premises. Clause fa) of Section 12 provides that where fair rent has been fixed by the Controller by decreasing the rent agreed, the excess amount paid shall be recoverable under the order of the Controller by instalments or otherwise. Clause (b) of Section 12 provides where rent has been increased it would be recoverable by the landlord by instalments or otherwise as the Controller might order with certain limitations. Section 13 gives protection to the tenant against the eviction in certain cases. Section 21 deals with the deposit of rent. Section 22 deals with the time-limit for making deposit and consequences of incorrect particulars in application for deposit and Section 23 provides for saving as to acceptance of rent in certain cases. The West Bengal Premises Rent Control Act of 1950 provided a slightly different definition of the tenant. It provided-
'11 'tenant' means any person by whom rent is, or but for a special contract would be, payable for any premises, and includes-
(i) any person who is liable to be sued by the landlord for rent; and
(ii) any person whose interest in the premises has been ipso facto determined under sub-section (3) of Section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act 1948.'
In view of the certain decisions it may be mentioned that the definition underthe 1950 Act was more or less similar to the definition provided in the Rent Act. 1920.
3. The case of F. D. Bellow v. T. Elke, 29 Cal WN 30 = (AIR 1924 Cal 715) was a case under the Calcutta Rent Act of 1920. There a tenant applied for standardisation of his rent, but before the application came on for hearing he was ejected from the premises in pursuance of a decree of the Calcutta Small Cause Court. Subsequently the Rent Controller dismissed the application for fixation of standard rent on the ground that the applicant was no longer a tenant of the premises. It was held that there was nothing in the Act which provided that the application would become inoperative, although properly made in the first instance, because subsequent to the making of the application but before the rent was standardised a change of tenant took place. The Words 'tenant, if any' in Section 15. Clause (4) indicated that it was possible that when the time came for the Rent Controller to give notice of his intention under the Act one of the parties might have ceased to be either a landlord or a tenant. The case Deoki Prosad v. Dulichand, : AIR1954Cal532 , the Division Bench of this Court was concerned with the case under West Bengal Premises Rent Control (Temporary Provisions) Act. 1950. It was held that the definition of 'tenant' included ex-tenant in possession, whose tenancy had been determined, by an ejectment decree. An application for standardisation of rent, validly made by a tenant, did not cease to be maintainable, merely because, during the pendency of the said proceedings, a decree for eiectment was passed against him. Reliance was placed before the learned Judges on the case of Sukhdeodas Ram Prosad v. Jaintilal Jamunadas, AIR 1926 Cal 697, a decision upon which reliance was also placed before us at the instant reference. It was held by the Division Bench in the case of : AIR1954Cal532 (supra) that in view of the decision of the Judicial Committee in the case of Karanani Industrial Bank Ltd. v. Satya Niranjan Shaw, AIR 1928 PC 227 the said decision reported in AIR 1926 Cal 697 must be held to have been overruled. We will refer to this decision later. The case of Sri-kaur Mohta v. Nripen Bhattacharjee, 61 Cal WN 547, was also a case under the West Bengal Premises Rent Control Act, 1950. It was held by the Division Bench that where at the time of the application for standardisation of rent there was a subsisting relationship of landlord and tenant between the parties, the cessation of tenancy during the pendency of the said application did not make the same incompetent or disentitle the applicant from maintaining or proceeding with thesame. It was further held that the standardisation of rent was within the exclusive jurisdiction and competence of the Rent Controller. In the case of Ahamuddin v. Banku Beharv Dutt. 31 Cal WN 308 = (AIR 1927 Cal 305) it was held by a Division Bench of this Court that a decision fixing the standard rent attached to the premises and not to the persons or, parties to that suit and therefore such a decision was a judgment in rem and not in personam. 32 Cal WN 1093 = (AIR 1928 PC 227) is the decision of the Privv Council which has already been referred to. That was a case under the Calcutta Rent Act of 1920. It was held by the Judicial Committee that the words 'landlord' and 'tenant' in Section 15(1) of the Rent Act one must include an ex-landlord and an ex-tenant. The word 'tenant' in Section 11 must include a person whose term under the contract of tenancy had come to an end. The Act therefore, applied in appropriate cases to an ex-tenant and it made no difference whether the tenancy came to an end by effluxion of time or act of the landlord or act or default of the tenant. It was held even under the strict words of the definition of 'tenant' given in Clause 2 (g). persons by whom arrears of rent were payable at the date of their applications to the Controller, would be 'tenants'. It was further held that the Controller had power to fix the standard rent so as to operate retrospectively. In the case of Tarabai Jivan-lal v. Kadamchand, : AIR1950Bom89 , a learned single Judge of the Bombay High Court held that an order under the Defence of India Rules requisitioning a flat was essentially of a temporary nature and did not create in the government any vested interest in the tenancy. It also did not operate as a surrender so as to terminate the tenancy. It has further held that a monthly tenant, therefore, from whose occupation the flat was requisitioned continued to be a monthly tenant as before. Possession of government of the flat under requisition under the Defence of India Rules, did not amount either to an eviction by title paramount or as frustration of adventure. In the case of State of West Ben-gal v. Benode Behari Gupta, (1956) 60 Gal WN 253 it was held that an order fixing the standardized rent in respect of a premises governed not only the tenant who was in occupation at the relevant date but also those who might be coming thereafter. Such an order attached to the premises and was a relevant piece of evidence which had to be taken into consideration while fixing the compensation payable by the State to the owner when the premises were requisitioned.
4. Counsel for the respondent, however contended that after notice for ejectment had been given in this case, the contractual tenancy came to an end, and the petitioner at best became a statutory tenant. It was urged that a statutory tenant had only a right to hold on to the property. But the moment the property was requisitioned and a statutory tenant was dispossessed by the order of the Government the statutory tenant had no further right under the Act. Reliance was placed on the observations of the Supreme Court in the case of Calcutta Credit Corporation Ltd. v. Happy Homes (P.) Ltd., : 2SCR20 . Counsel for the respondent further contended that in view of the facts and circumstances of this case the applicant for standardisation of fair rent had lost his rights, if any, to any relief after eviction by the order of requisition. Reliance was also placed on the Division Bench decision in the case of AIR 1926 Cal 697 which was a case under the Calcutta Rent Act of 1920 and wherein it was held that an application for standardization of rent to Rent Controller, after a decree in suit for ejectment had been passed ejecting the tenant, was not competent as there was no tenancy in existence thereafter. We are of the opinion that in view of the decision of the Judicial Committee in the case of 32 Cal WN 1093 = (AIR 1928 PC 227) this decision must be held to have been overruled. On this question we are in respectful agreement with the views of the division bench in the case of : AIR1954Cal532 (supra). Furthermore, the facts of the instant case are materially different from the facts of the case of AIR 1926 Cal 697 (supra). Our attention was also drawn to the judgment of Chatter-jee, J. in the case of Bhutnath Mukher-jee v. Pranesh Chandra Gupta, Civil Revn. No. 42 of 1961 (judgment delivered on 18-7-1963 (Cal)). The learned Judge was of the opinion that as according to the definition of a tenant in the West Bengal Premises Tenancy Act, after a decree for ejectment the person who had applied for fixation of, rent was not a tenant, the proceeding became infructu-ous.
5. It appears to us that in view of the statutory position, it is apparent that in this case when the tenant applied for standardisation of rent he was undoubtedly entitled to do so, the tenancy had not been determined then by any notice for ejectment. Furthermore the tenant was at that time in occupation of the premises. As mentioned hereinbefore the application for standardisation of rent was made on the 29th of June. 1966 and the possession of the premises was taken from the tenant on the 24th October, 1967. Therefore from the afore-said facts, it is apparent that not only was the application, when made, was a proper application, but furthermore the tenant has a valid right to ask for determination of his liability for rent upto 24th October, 1967. In view of the provisions of Section 12 the tenant would be entitled to any sum of money in such a manner as the Controller might order If the rent is decreased. Equally the landlord would be entitled to recover any sum of money pursuant to the order ofthe Controller under Section 12 of the Act if the fair rent is determined for an amount which is in excess of the amount agreed. There is nothing in the scheme of the Act or in the definition of the tenant, in our opinion, which defeats an application, if it was valid and properly made, at the time when it was made by the subsequent notice of eiectment or by the subsequent dispossession of the tenant. The definition of a tenant in this case excludes ,any person against whom a decree or order for eviction has been passed by a court of competent jurisdiction, in this case as yet no decree has been passed by any Court of competent jurisdiction. Therefore, the fact thatthe definition Provided in the 1950 Act or in 1920 Act is not material on this aspect of the matter. The alteration of the definition in the facts of this case does not affect the position. Furthermore the definition of the tenant, if it be relevant, would be relevant only for the determination of the rights of the parties at the time of the institution of the proceeding, a proceeding validly instituted must be determined, in accordance with law, unless there is an indication either express or implied in the Act that such proceeding becomes in-fructuous by subsequent events. We have not been able to find anv such indication either express or implied in the West Bengal Premises Tenancy Act, 1956. Therefore, we are unable to accept theposition that after service of a notice of eiectment a statutory tenant has no right to proceed or prosecute an application for standardization of fair rent. We are also unable to accept the position that if an application for standardization for fair rent had been properly made by a competent person subsequent dispossession of the premises by one of the parties in any way effects the continuance of the said proceeding. We are not concerned in this application with the questions as what would be the effect of the determination of the fair rent on the future rights of the parties or whether a determination of fair rent is a judgment in rem or a judgment in per-sonam nor are we concerned with the question whether an order for requisition puts an end to the tenancy or not. We, therefore, express no opinion onthese questions. For purpose of this application we hold that the application for the standardization of rent in the instant case was validly made at the time when the said application had been made and the same application did not become not maintainable or was liable to be dismissed in limine, in view of the subsequent requisition of the premises by the government. The Controller, will have jurisdiction therefore to determine the fair rent and order the recovery of any increase or decrease of the rent as the case may be, in the manner indicated under Section 12 of the Act.
6. In the aforesaid view of the matter it must be 'held that the decisions of the Rent Controller in Case No. 435B of 1966 dated 19th January. 1968 and the judgment of the Court of Small Causes in Rent Appeal 15 of 1968, in so far as those held that the application in the instant case by the tenant for fixation of rent was not maintainable any longer were incorrect. We accordingly set aside the said order passed by the Rent Controller dated 19th of January. 1968 in case No. 435B of 1968 as well as the order dated 13th of January, 1969 in Rent Appeal No. 15 of 1968 passed by the 4th Bench of the Court of Small Causes. Calcutta and direct the Rent Controller to hear and determine the said application of the tenant in case of 435B of 1960 in accordance with law. The rule is made absolute to the extent indicated above. In the facts and circumstances of this case, we make no order as to costs of this application.
Arun K. Mukherjea, J.
7. I agree.
M.M. Dutt, J.
8. I agree.