Arun Kumar Mukherjea, J.
1. These appeals make a group of altogether six appeals involving more or less the same questions. They were referred to a Special Division Bench under Rule 1, Sub-rule (ii) of Chapter II of the Appellate Side Rules by a Bench consisting of the late Chief Justice D. N. Sinha and myself on 19th June 1968. The reference was made on the ground that they raise one or two common questions of law which are of great public importance. The Hon'ble the Chief Justice thereafter constituted the present Special Bench to dispose of these appeals. Since we have to dispose of the entire appeals we shall have to deal with them separately resolving the questions of law as they arise. This is what we propose to do as here-under.--
Appeal No. 550 of 1962
2. The original defendant Satish Chandra Mukherjee was a tenant under the plaintiffs in respect of a shop room on the ground floor of premises No. 8-A, Lal Bazar Street. Calcutta at a monthly rental of Rs. 30.94 np. payable according to the English Calendar Month. The entire premises at 8A, Lal Bazar Street, Calcutta was transferred to the plaintiffs by Srimati Sushila Devi Rampuria and Shri Joychand Lal Rampuria who were the liquidators of Rampuria Properties Ltd., by a registered deed of conveyance dated 13 July 1958. Prior to this transfer, the tenant, namely. Satish Chandra Mukherjee had defaulted in payment of rents since September 1957. He, however, deposited the rents for September 1957 to April 1958 on 29 May 1958. After the transfer, the plaintiffs as the new landlord served through their lawyers a notice of e.jectrnent dated 13 September 1958 on the said tenant-defendant. By the said notice the plaintiffs determined the defendant's tenancy and called upon him to quit and vacate the aforesaid shop-room No. 5 on the expiry of the last day of October 1958. The defendant having failed or neglected to do so the plaintiffs filed a suit against the said defendant-tenant for eviction. In the plaint it is claimed that the defendant would not be entitled to any protection from eviction under the provisions of the West Bengal Premises Tenancy Act of 1956 (hereinafter referred to as the said Act) by reason of the fact that the tenant had defaulted in the payment of rent to his previous landlords as well as to the plaintiffs who were the successors-in-interest of those landlords 'since September 1957 and also for four months within a period of 12 months'. Before the suit had been filed on 2 January 1958 the tenant had deposited rents for August. September and October 1958 on 1 December 1958. The defendant contested the suit and filed a written statement. Sometime later the original defendant having died, his heirs, namely. Saniib Mukherjee. Ranjit Mukherjee, Manindra Nath Mukheriee. Samita Mukherjee and Mrs. Satish Chandra Mukherjee were substituted as defendants in lieu and place of the original defendant. I shall hereinafter refer to the substituted defendants merely as defendants. Defendants Manindra Nath Mukher.iee and Samita Mukheriee filed a written statement on 12 November 1960 and an additional written statement on 24 March 1961.
3. Certain issues and additional issues were framed for determination at the time of trial upon the pleadings of the parties. They are as follows :
(1) Is there any relationship of landlord and tenant between the .parties in respect of the suit premises, i e. the show room No. 5 on the ground floor of premises No. 8-A, Lal Bazar Street. Calcutta?
(2) Is the defendant a defaulter in the payment of rent for four months during the period of 12 months before the institution of the suit?
(3) Was the notice of ejectment served on the defendant? If so. is the notice legal, valid and sufficient?
(4) To what relief, if any. are the plaintiffs entitled?
(1) Are the defaults in the payment of rent committed by late Satish Chandra Mukherjee, the predecessor-in-interest of the substituted defendants and/or the substituted defendants prior to 13 July 1958, the date of purchase of the suit premises by the plaintiff to be tacked to the defaults committed by the said late Satish Chandra Mukherjee and/or the substituted defendants from 13 July 1958 onwards?
(2) Can the plaintiffs take advantage of the defaults in the payment of rent committed by Satish Chandra Mukherjee and/or the substituted defendants when the plaintiffs' predecessor-in-interest were the landlord and/or the owners of the suit premises?
4. After evidence had been adduced on behalf of both sides the learned trial Judge came to the following decisions :--
(1) There was a relationship of landlord and tenant between the parties.
(2) (a) It is not a fact that there had been non-payment of rent for all months since September 1957 to date of judgment,
(b) Defendants were defaulters in payment of rent for the months of August, September and October 1958 because of paying them after the due date.
(c) Further the defendants having deposited the rents from September 1957 to April 1958 on 29 May were defaulters in the payment of rent within the meaning of the Act for the months of September 1957 to March 1958 and as such the defendants were not entitled to claim any protection from eviction under the Act.
(3) The plaintiffs as transferee-landlords could take advantage of the defaults made by the tenant before the transfer of the property. In short, the defendants were not entitled to protection from eviction under the Act for having made defaults in the payment of rent for four months within a period of 12 months from the commencement of the Act to the date of the suit.
(4) The ejectment notice had been properly served and was proper and valid.
5. On these findings the learned trial Judge decreed the suit against the defendants and ordered that the plaintiffs would get khas possession of the suit premises by removing the defendants therefrom.
6. The defendants came on appeal to this Court. After the a,ppeal had been filed in 1962 the said Act of 1956 was amended. On 26th August 1967, West Bengal Ordinance VI of 1967 was promulgated. The hearing of the appeals commenced four days later, i. e. to say on 30 August 1967. During the hearing of the appeal the appellant-tenants made an application on 13 September 1967 praying for orders extending the time for deposit of the amount of rents in arrear together with interests and also for fixation of the number of instalments by which the payments were to be made. The appellants contended that they were entitled to make this application by reason of Section 2 of the West Bengal Ordinance No. VI of 1967 by which a new Sub-section (2-A) had been inserted after the original Sub-section (2) of Section 17 : of the said Act. The Division Bench which was hearing the .appeal dismissed the application by an order passed on 7 May 1968. This decision was based mainly on the ground that an application for extension of time under Section (2-A) of Section 17 could not be made without complying with the provisions of Subsection (2-B) which required that an application for extension of time was to be made before the expiry of the time specified in Sub-section (1) or Sub-section (2) of Section 17 and since this time had expired long before the application was made the protection given under Sub-section (2-A) was not available to the appellants. A copy of the order of the Division Bench is to be found at page 16 of the Second Part of the Special Paper Book prepared for the Special Bench. After dismissing the application the Division Bench again-proceeded to hear the appeal. As I have stated already the Division Bench after hearing the appeal on 19 February 1968 referred it to a Special Division Bench.
7. It will be remembered in this connection that Section 17 had been extensively amended at first by West Bengal Ordinance VI of 1967 and then on the expiry of the Ordinance by Act IV of 196ft the provisions of which in turn were re-enacted by Act XXX of 1969,
8. The principal question of law that induced the Division Bench on 19 February 1968 to make a reference of the case to a Special Bench was the question as to whether the amendment of the proviso to Sub-section (4) of Section 17 of the Act of 1956 introduced by the West Bengal Premises Tenancy (Amendment) Ordinance. 1967 and later re-enacted in Act IV of 1968 and Act XXX of 1969 were ultra vires the provisions of the Constitution of India and. in particular. Article 19(1)(f) of the Constitution of India.
9. When the appeal came up for hearing before the Special Bench Mr. Chandra appearing for the respondents-landlords challenged the vires of the new proviso to Sub-section (4) of Section 17 of the said Act. Since for all practical purposes and particularly in the matter of amendment of Sub-section (4) of Section 17, Act XXX of 1969 is a re-enactment of Act IV of 1968 it would be enough for us to confine our attention to Act XXX of 1969. In order to appreciate the challenge of the respondents to the vires of the Act of 1969 it is necessary to know the context in which the challenge arises. I am, therefore, indicating below this context.
10. It will be remembered that Section 17 of the Act of 1956 gives an opportunity to defaulting tenants to avoid eviction by paying up all arrears of rent end by making payments of current rents during tine pendency of the suit. Sub-sections (1) and (2) of Section 17 contain these provisions. Sub-section (3) of the same section provides that if a tenant fails to pay up the arrears or to deposit current rents in terms of Sub-section (1) or Sub-section (2) within the time specified therein, the Court shall have the de-fence against delivery of possession struck down and shall proceed with the hearing of the suit. In other words all the protection given to the tenant under Section 13 of the Act of 1956 would be withdrawn if the defaulting tenant does not pay rents, arrear and current, in the manner laid down in Sub-section (1) or Sub-section (2) of Section 17, Sub-section (4) as it originally stood, provided, however, that if a defaulting tenant makes those payments required by Sub-section (1) or Sub-section (2). no decree or order for delivery of possession will be made against the defaulting tenant. This was in the nature of a last minute reprieve for the tenant. But even this reprieve was denied to the tenant under certain circumstances. The circumstances were mentioned in the proviso to Sub-section (4). The original proviso ran in the following manner :--
'Provided that a tenant shall not be entitled to any relief under this Sub-section if he has made default in payment of rent for four months within a period of 12 months'.
The net effect of the amended proviso seems to be this that even a tenant who would under the original proviso have been deprived of the benefit of Sub-section (4) if he had committed defaults in respect of four months within a period of 12 months would again be entitled to Protection from eviction if it appears that he has done this only once. In other words, it is only a tenant who has obtained once before the relief provided for in Sub-section (4) and then again commits default for four months within a period of 12 months who would be disentitled to this relief.
11. Taking advantage of this amended proviso the appellants in the instant appeal sought the protection of Sub-section (4) of Section 17. On the facts of this case, since the appellants have not admittedly obtained the relief envisaged in Sub-section (4) of Section 17 once before in another suit, they would in the view that we take of this amended proviso be automatically entitled to succeed in this appeal. It will be remembered that the original decree of eviction was passed, against the appellants by virtue of the proviso to Sub-section (4) 0s it stood before the amendment. Now however, the amended proviso would prevent the passing of any decree or any order for delivery of possession against them. It is this aspect of the amendment introduced by Act XXX of 1969 which the respondents challenge as ultra vires the provisions of Article 19(1)(f) of the Constitution of India.
12. The argument advanced by the respondents was mainly as follows. The right of the landlord to evict a tenant and to recover possession of his property is a fundamental right within the meaning of Article 19(1)(f) of the Constitution. Therefore, this is a fundamental right which cannot be abrogated, curtailed or restricted unreasonably. Tenants have been given all kinds of protection in the Act of 1956. The amendment Acts of 1968 and 1969 have considerably expanded the protection that had been originally given to the tenants by the Act of 1956. Even so of all the measures of protection given by the latest amendments the protection that is now given to the tenant by the amended proviso to Sub-section (4) is so wide and of such a. sweeping nature that from the point of view of the landlord it has become extremely unreasonable. A suit against a tenant is usually concluded after quite a number of years. It is not at all unusual for 10 or 12 years to elapse before even a successful landlord can throw out his tenant and recover possession of his premises. That has been the position even without the new amendment introduced by Act XXX of 1969. On top of this now, as a result of the amendment of the proviso to Sub-setiocn (4) of Section 17 even a defaulting tenant who would not ordinarily get the protection of Sub-section (4) of Section 17 would be entitled to claim the same protection if he can show that he has not on an earlier occasion invoked Sub-section (41 and obtained relief under that sub-section. This protection, it was argued, is far beyond reasonable limits : it wodld only encourage the defaulting tenants to act or make defaults in the assurance that the landlord is bound to fail in his attempt to evict the tenant in the first suit. The contention of the respondents has been formulated in paragraph 4 of the petition in the following words :--
'The impugned provisions of Ss. 2 and 5 of the Amending Act 1969 are also ultra vires the provisions of Article 19(1)(f) of the Constitution. The restrictions created and/or imposed on a landlord by the said sections in enjoyment of his right granted under Article 19(1)(f) are arbitrary or of an excessive nature beyond what is required in the interest of general public and/or are not in the interest of general public, and amount to unreasonable restrictions of the landlord's rights guaranteed under Article 19(1)(f) of the Constitution'. It was argued that the provision that the landlord can succeed against a defaulting tenant only after filing two suits constitutes an unreasonable restriction on the landlord's right to enioy his property rights. It was urged that these provisions 'completely ignore the hardship of landlord of poor financial position' and 'do not even attempt to strike a proper balance between the freedom guaranteed in Article 19(1)(f) of the Constitution and reasonable restriction in the interest of general public'.
13. Mr. Chandra arguing in support of the appellants-tenants sought to make out the following points : --
(1) It is impossible to deny that the amendment to the proviso has added a very substantial measure of protection to the tenants which is far in advance of the protection that bad been so far available under Sub-section (4). The amendment makes it impossible for a landlord to get rid of defaulting tenants without succeeding in 2 suits. This itself is an unreasonable restriction on the landlord's right to hold and enioy their right to property.
(2) Even if the prospective operation of the amendment can be justified, the retrospective character given to the amendment makes the amending proviso very unreasonable.
14. We shall deal with these points one bv one.
15. We have no doubt in our mind that the protection that has now been given to the tenant is very substantial. The reasonableness of such provisions should, however, be iudged with reference to the social philosophy of the time. It mav not be out of place in this context to refer to the Statement of Objects and Reasons with which Act IV of 1968 was introduced in the legislature. It will be remembered that the amendment was (introduced by Act IV of 1968 and continu-led under Act XXX of 1969. There are various Supreme Court Authorities which justify a reference to the Objects and Reasons for the limited purpose of finding out the conditions which obtained at the time of the introduction of the statutes and which led to the introduction of the legislation and. in particular, for ascertaining the extent and urgency of the evil which is sought to be remedied bv a particular statute. The Statement of Reasons for the enactment of Act IV of 1968 contains the following passages--
'Under Section 17 of the West Bengal Premises Tenancy Act. 1956 as it stood before the amendment by the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 (West Bengal Ordinance No. VI of 1967) a tenant who has defaulted in payment of rent for four months within a period of 12 months was debarred from avoiding ejectment by making a deposit or payment as required by subsection (1) or Sub-section (2) of Section 17. The Court had no powers, even in cases of real hardship, of extending the time for making the deposit since the provisions of the Act were causing severe hardship to the tenants in some cases, it was considered necessary by the Government of West Bengal to give the tenants some relief by amendment of the Act. Accordingly, the West Bengal Premises (Amendment) Ordinance. 1967. was promulgated by the Governor of West Bengal. The main provisions of the Ordinance were as follows :--
(c) the tenant had the opportunity for ence only to avoid ejectment on the ground of default in payment of rent. irrespective of the period of default bv making deposit or payment of all arrear dues. On any subsequent occasion, however, default in payment of rent for four months within a period of twelve months debarred him from getting any relief.
The West Bengal Premises Tenancy (Amendment) Second Ordinance was promulgated by the Governor of West Bengal to continue with certain modifications the provisions of the First Ordinance.
The proposed measure seeks to replace the Ordinance No. II of 1968'.
16. It is perfectly clear that the legislature thought that a tenant should be given more than one opportunity for avoiding ejectment on the ground of default in the payment of rent, by making deposits or payments in respect of arrear dues as well as by continuing to pay the current dues in terms of Sub-section (1) or Sub-section (2) of Section 17 of the Act. If the sponsors of the statutes think that even a defaulting tenant deserves a second opportunity so long as he is prepared to pay up all arrear dues prescribed by law I do not see why it would be unreasonable to give that opportunity to the defaulting tenant. It is important to remember that the second opportunity is not given to a tenant against whom an ejectment decree is passed or is goine to be Passed on any other grounds mentioned in Section 13 of the Act. Thus, if e landlord requires it for his own use there is no reprieve provided for the tenant. It is only when the landlord's complaint is based on the tenant's failure to pay the rents that a tenant is given a second opportunity provided, however, that he pays up all the arrear dues. Therefore, the basis for the landlord's complaint is removed by providing for payment of his dues before any relief is given to the tenant. The protection to the tenant is counter-balanced by an equal protection for the landlord. We cannot in such circumstances persuade ourselves to regard this extra protection given to the tenant by the amended proviso to Sub-section (4) as an unreasonable restriction on the landlord's right to hold and enjoy the property. It would have been unreasonable only on the assumption that the landlord wanted the house at any costs. But this is not the case where a landlord seeks to evict the tenant on the ground of default in payment of rent. If the defaults are wiped out and the current rents are paid, no reasonable hardship is caused to the landlord. In our opinion, the whole matter would appear in a different light if we remember that tenants do not always default in payment of rent out of sheer wickedness or malice towards the landlord. More often than not tenants default because they have not got the means to make the payment. In the social conditions that obtain in our country it is hardly just and proper to consider poverty as a sin which is beyond redemption. Even if the widest latitude is given to the poor and indigent tenant it would be hard to describe the provision which gives such latitude as unreasonable. This must be specially so when the latitude is not given at the cost of the landlord. The very essence of Section 17 is to protect defaulting tenants bv giving them an opportunity to pay up the arrear dues. Under Sub-section (4) and the proviso as it originally stood this protection was denied to the tenant who was a habitual defaulter to the extent that he would not pay his dues for four months in a period of 12 months. Under the new proviso this severity has been related further in favour of the tenant. Even such a defaulting tenant is no longer considered beyond the Pale of redemption and has been given an extra opportunity, but, in providing for this extra opportunity the landlord's interests have not been overlooked. Looking at the whole matter from this point of view we are not prepared to consider the provisions in Act IV of 1968 or Act XXX of 1969 which have emended the proviso to Sub-section (4) as unreasonable and consequently uncon-stitutional.
17. At the time of hearing of this appeal Mr. Chandra referred us to cer-tain observations of the Supreme Court in various decisions. We do not think that those observations have any bearing on the peculiar features of the instant case. The reasonableness of a legislative provision has to be iudged on the merits of each individual case separately. We confess we have not found the observations placed before us to be very helpful,
18. We were referred to the decision of the Supreme Court in K.L. Gupta v. Corporation, Greater Bombay. : 1SCR274 where Mitter. J. delivering the judgment of the Supreme Court observes as follows;--
'In all such cases, where large powers are giyen to certain authorities the exercise whereof may make serious inroads into the rights of property of private in-dividuals, we have to see whether there is any guidance to be collected from the Act itself, its object and its provisions, in the light of the surrounding circumstances which made the legislation necessary taken in conjunction with well-known facts of which the Court might take judicial notice'.
These observations, if we may say with respect, are absolutely unexceptionable and completely binding on us. But the present case is not a case where any large powers have been given to any autho-rity. Therefore, these observations are not. in our opinion, helpful at all.
19. We were next referred to the ' case of N.S. Gujral v. Custodian of Evacuee Property. : 1SCR497 . In that case Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was challenged and in dealing with that question the Supreme Court regarded 'decree' as a property. Mr. Chandra apparently sought to argue that in the instant case since a landlord is being deprived of a decree which he. hag already secured or is sure to obtain in the first Court, the legislative provision depriving the landlord of that decree amounts to unreasonable deprivation of property. In our opinion, it, is not a correct analogy. What has actually happened here is that the new amendment to the proviso to Sub-section (4) has made it impossible for a landjord to set a decree of eviction or an order for possession of his property unless the tenant has been guilty of the default specified in the Sub-section (4) on two occasions and the tenant has obtained the relief Under Sub-section (4) on an earlier occa-sion. The conditions which will enable a Landlord to set a decree for eviction have been made a little more onerous. If Section 13 of the Act of 1956 can be accepted as regulatory and reasonable and if that section is not regarded as taking away of any property right, we do not see how the amended proviso to Sub-section (4) can be condemned as unreasonable and as making an inroad on one's property right.
20. Now we come to the second contention of Mr. Chandra who argued that even if the prospective operation of Section 2 (3) of Act XXX of 1969 which amended the proviso is found justified, it is impossible to escape the conclusion that the retrospective character given to the same amendment by Section 5 of Act XXX of 1969 makes it an unreasonable restriction on the right to hold property We do not think this contention is correct either.
21. It i$ well known that the Supreme Court has been very cautious in treating the retroactive operation of legislation as an element of unreasonableness while dealing with the question of infringement of fundamental rights. The retrospective character of a statute is only one of the elements which have to be taken into consideration in determining the reasonableness of the restrictions in-troduced by a statute. In this connection reference may be made to the following Supreme Court decisions : State of West Bengal v. Subodh Gopal, : 1SCR587 ; Express Newspapers v. Union of India, : (1961)ILLJ339SC ; Ramkrishna v. State of Bihar. : 50ITR171(SC) and Asst. Commr. Urban Land Tax Madras v. B. & C. Co., : 75ITR603(SC) . Though the question of retrospectivity enters as an element to be considered while dealing with the concept of reasonableness under Article 19, we must remember that there is no bar against retroactive legislation in our Constitution except in regard to criminal legislation.
22. In our opinion, if the proposition (sic-provision) of giving a double opportunity to defaulting tenant is not by itself unreasonable it should not become unreasonable merely because retrospeq-tive effect has been given to the legislative provision introducing this double opportunity. We must make it clear that we say this because of the special considerations involved in the case of defaulting tenants. As we have already indicated, the legislative provision contains a kind of poise and counter-poise protect-ins the interest of the tenant as well as the reasonable interest of the landlord; it must, therefore, be regarded as reasonable in Us impact on the fundamental rights guaranteed by the Constitution. In coining to this decision we remember the important fact that the landlord in such cases is anxious to get his rents and is not anxious to get back possession of the premises. Had it been otherwise we might have come to a different conclusion. In fact, in the case of Kalyani Datta v. Pramila Bala Dassi my learned brother Mr. Justice Dutt gave a judg-ment to which I was a party and in which he held that Sub-section (3-A) of Section 13 in so far as it has been made applicable to pending suits and appeals is ultra vires the provisions of Article 19(1)(f) of the Constitution for having placed unreasonable restrictions on the rights of landlords whose suits or appeals for eviction on the ground of reasonable requirement are pending. I refer to this case to indicate the essential qualitative distinction between a case where a landlord requires a house for his own use and a case where the landlord wants to get rid of a tenant because he does hot pay rents regularly.
23. Both the contentions of Mr. Chandra, therefore, fail. In the facts and circumstances aforesaid we must hold that since in the instant case the tenant has admittedly never before obtained relief under Sub-section (4) he will be entitled to the protection provided by the amended proviso of that sub-section.
24. It remains for me to mention that there was some argument regarding the exact effect of the amended proviso. We have, however, sitting in the same Special Bench delivered a judgment today in another appeal, namely Jamuna Prasad Chowrasia v. Kishorilal Poddar, (F. A. No. 565 of 1965 (Call) in which we have held that under the amended proviso, no decree or order for delivery of possession can be made against a tenant who has not committed a default, inpayment of rent for four months within a period of 12 months after having once before obtained relief in an earlier suit for a similar default. It is not necessary for us to deal with this aspect of the matter in this case again.
25. In the result since it is nobody's case that the appellant had obtained any relief under Sub-section (4) of Section 17 in an earlier suit and since we have found the amended proviso to be perfectly constitutional we must hold that in the facts and circumstances of the case the appellant will be entitled to the protection given by the amended proviso. In the result, we allow the appeal and set aside the decree passed by the learned Subordinate Judge. We order however, that the respondent will set the costs of both the suit and the appeal.
First Appeals Nos. 136, 137 and 138 of 1962
26. All these three appeals are directed against decrees of ejectment given in favour of the landlord and against the tenants in the corresponding suits, namely. Suit No. 1877 of 1959, 1874 of 1959 and 1886 of 1959 respectively of the City Civil Court Calcutta. The tenants were found guilty in each case of having committed defaults in the payment of rent for four months in a period of 12 months so that the original proviso to Sub-section (4) of Section 17 of the Act made it impossible for the tenants in any of these cases to invoke the protective provisions of Section 13 of the Act of 1956. The tenants, however, applied during the pendency of the appeals for relief under the amended proviso to subsection (4). Confronted with this situation it was argued on behalf of the landlords that the provisions of Sections 2 (3) end 5 of Act XXX of 1969 which introduced the relevant amendments in the proviso and also made it retrospective are ultra vires the Constitution of India.
27. Of these three appeals Appeal No. 137 of 1962 was not pressed before us by the learned Advocate for the appellants on the ground that the landlord has already taken possession of the suit premises. Appeal No. 137 of 1962 is. therefore, dismissed for non-prosecution. No order in respect of costs is made in this appeal.
28. We have just now held that the contention that the amended proviso is invalid on the ground of unconstitutionally cannot be sustained. Therefore, there is no doubt that the tenants in Appeals Nos. 136 and 138 of 1962 will be entitled to get relief under the amended proviso to Sub-section (4) of Section 17. No other point was urged on behalf of the respondents-landlords. The defence of the tenants-appellants was also confined to the question of getting relief under the amended proviso to Sub-section (4) of Section 17.
29. In the result, these two appeals viz. Appeal Nos. 136 and 138 of 1962 succeed and the relevant suits in these three appeals are dismissed : the judgments of the trial Judge though correct at the time of delivery cannot be sustained any longer and are, therefore, set aside. We order, however, that in each case, the respective respondent will get the costs of the suit as well as the costs of the appeal.
First Appeal No. 1038 of 1964 :
30. This appeal is from a decree of ejectment given on the ground of default in payment of rent for four months within a period of 12 months. The defendant was a tenant in respect of the second floor and one bath room on the ground floor of premises No. 10-A. Krishnaram Bose Street, Calcutta, at a monthly rental of Rs. 40/- per month payable according to the English Calendar month. The landlord complained that the tenant had not Paid rent for September to December 1961 and had also sublet a portion of the premises to one Subal Chandra Das without the consent of the landlord. A notice to quit was served on the tenant and the tenant having failed or neglected to quit the premises the landlord filed a suit for ejectment. The tenant contested the suit and filed a written statement. An issue as to valid service of notice though raised in the beginning was abandoned by the tenant at the time of trial. In any event the learned trial Judge deals with the merits of this point and finds that the notice satisfies the requirements of Section 106 of the Transfer of Property Act as well as of Section 13 (6) of the Act of 1956. The learned trial Judge dismissed the landlord's contention that the defendant had sublet a portion of the premises in suit. On the question of default, however, the learned trial Judge found that the tenant-defendant was guilty of default in payment of rents for September to December 1961 and had on that ground forfeited his claim to protection under the Act of 1956. Before the filing of the written statement however, the tenant had filed an application under Section 17 (2) and had made deposits in terms of Sub-section (2) of Section 17 in pursuance of an order of the learned trial Judge. The learned trial Judge granted a decree of eiectment in favour of the landlord on the ground of default. At the hearing of the appeal the tenant-appellant took the point that since he had made the deposits required under Sub-section (2) of Section 17 and since he had not on any earlier occasion obtained relief in terms of Sub-section (4) of Section 17. he was entitled to protection in the present appeal under the amended proviso to Sub-section (4). In answer to that, the landlord contended as in the other appeals which we are hearing analogously that the provisions of Act XXX of 1969 which made the amendment to the proviso are ultra vires the Constitution. We have already held that there is no substance in this argument. We hold, therefore, that the tenant will be entitled to relief in terms of Sub-section (4). The appeal is, therefore, allowed and the decree of the learned trial Judge which was correct at. the time when it was passed, is set aside. We order, however, that the tenant should pay to the landlord the costs of the suit as well as of the appeal, I should, however, record that as I was delivering this judgment Mr. H. K. Mitra, learned Advocate for the appellant told us that Kamal Kumar Nag the appellant has died on 1 July 1972. Since however, this death took place between the conclusion of the hearing of the appeal and the delivery of the judgment this makes no difference by reason of the provisions of Order 22, Rule 6 of the Code of Civil Procedure.
First Appeal No. 198 of 1965.
31. This appeal is also from an order of ejectment passed against a tenant appellant on the ground of default in payment of rent. It is not necessary for us to recount all the facts, for, it is the admitted position that the defendant tenant had neither paid nor deposited rents to the landlord since Pous Badi S. Y. 2017. nO attempt was made before us on the part of the tenant to press any point other than the point that the tenant-appellant is entitled to the additional relief granted by the amended proviso to Sub-section (4) of Section 17. It is nobody's case that the tenant-appellant has obtained relief in an earlier suit under the provisions of Sub-section (4) of Section 17. Therefore, it is clear that the tenant appellant must succeed in his appeal if he can come within the ambit of Sub-section (4) read with the amended proviso.
32. Mr. Ghosh appearing for the landlord-respondent made two contentions. First, he argued that the tenant-appellant has not complied with the provisions of Sub-sections (11 and (2) of Section 17 of the Act of 1956. Secondly he argued that the provisions of the Act XXX of 1969 which amended the proviso to Subsection (4) are ultra vires Articles 14 and 19(1)(f) of the Constitution of India. On this question of ultra vires he adooted Mr. Chandra's argument -as advanced in F. A. No. 550 of 1962.
33. We shall deal with these two arguments one by one. As regards the argument regarding non-compliance with the requirement of Sub-section (2) of Section 17. the contention of Mr. Ghosh must be rejected. The order passed by the learned trial Judge under Sub-section (2) of Section 17 was an order passed by consent. On 25 April 1964 the learned trial Judge dealt with the landlord's written objection to the application under subsection (2) of Section 17. issues were framed and lawyers of both parties were heard. The learned trial Judge observes :--
'It is an admitted position that the defendant has been in possession of the suit premises as a tenant on a rental of Rs. 57.19 np. according to Hindi Calendar months and that the defendant has neither paid nor deposited rents accruing due at least since 1st Pous Bodi. S. Y. 2017. The defendant has raised contentions to the effect that the .plaintiff is not the landlord and that the previous landlords did not accept the rent etc. Be that as it may, both parties agree that without preiudice to the respective contentions of either party as to the subsistence of the relationship of landlord and tenant between the parties the defendant will deposit the arrears of rent at the rate of Rs. 57.19 HP. according to Hindi Calendar within the 15th of each succeeding month and that the amount will not be withdrawn by the plaintiff without getting further orders from this Court. This agreement is accepted. The amount of arrears of rent due upto 2nd Chitra Sudi 15, 2017 S. Y. from the 1st Pous Bodi S. Y. 2017 amounts to Rs. 2401.98 np. The defendant do deposit this sum within one month from date and continue depositing the rents accruing due henceforth at the rate of Rs. 57.19 np. within the 15th of each succeeding month according to Hindi Calendar. In default, the defence against delivery of possession shall be struck out. The amounts if deposited, will not be withdrawn by the plaintiff without getting specific orders from this Court',
34. It is apparent that only a preliminary order had been passed and the final order could not be passed because the question as to whether there was any relationship of landlord and tenant between them had not been decided at that stage. Even if there had been an irregularity, since the order was passed by ~ consent the landlord cannot take exception to it now. It is true that the learned trial Judge did not include within his order any direction as to interests and costs. But the details of calculation of arrear of rents are not available from the order. In any event since both parties had accepted the order it is not now open to the landlord to make a grievance of it. The fact remains that whatever order was passed by the learned trial Judge under Sub-section (2) of Section 17 has been complied with by the tenant. Whether the order is final or preliminary since it is a consent order we must proceed on the basis that the tenant has complied with the provisions of Sub-section (2). In these circumstances this objection of the landlord fails. As for the second objection as to the vires of the provisions of Act XXX of 1969 which amended the proviso to Sub-section (4) of Section 17 we have already found that this objection cannot be sustained. In this view of the matter both the contentions made out by the learned Advocate for the landlord-respondent are found to be of no substance. The tenant-appellant, therefore, must succeed and we order as follows :
The appeal is allowed. The decree of eviction passed by the learned trial Judge even though it was correct at the time of the passing of the decree can no longer be sustained and is set aside. The tenant, however, must pay to the landlord-respondent the costs of this appeal as well as the costs of the suit.
Sabyasachi Mukharji, J.
35. I agree.
M.M. Dutt, J.
36. I agree.