R.C. Mitter, J.
1. The petitioner is the owner of a house being No. 24A, Deshpriya Park Road. The opposite party became a monthly tenant of the said house from 1-9-1938. The original rent was Rs. 130 per month, which was subsequently reduced to Rs. 120 per month. It is admitted by the petitioner that the opposite party paid rent at that rate up to December 1941. Thereafter he stopped payment on the plea that he was liable to pay at the rate of Rs. 60 per month as the petitioner had agreed to reduce the rent to that figure with effect from January 1942. The petitioner did not admit that there was such an agreement and claimed rent at the rate of Rs. 120 per month. He sued the opposite party for rent at the rate of Rs. 120 per month for the months of January and February 1942 in the Court of Small Causes and got a decree. In spite of the fact that the plea of the opposite party that the rent had been reduced from Rs. 120 to Rs. 60 was found to be false plea he did not pay rent for the subsequent months. On 22-8-1942 the petitioner served on him a notice, to quit purporting to terminate his tenancy as from 1-10-1942. Thereafter he filed his suit for ejectment in the Court of the Munsiff at Alipore on 5-10-1942. That suit included a claim for arrears of rent up to the month of September 1942 and for mesne profits thereafter. At that time the Calcutta House Rent Control Order had not been promulgated. It was promulgated later and came into force in June 1943, when the suit was still pending in the Court of the Munsif. Paragraph 9 of the said order prevented the landlord from ejecting his tenant, so long as the latter paid rent to full extent allowable by the said Order and performed the conditions of his tenancy except on three grounds specified in that paragraph. As the ejectment suit was not based on any one of those specified exceptions, the petitioner made the case that the opposite party could not claim to be protected from ejectment by reason of para. 9 of the said Order as he had neither paid rent to the petitioner as it fell due nor had he deposited the same with the Rent Controller in terms of para. 10 of the said Order. This contention of the petitioner prevailed and the Munsiff passed a decree for ejectment, for arrears of rent and for mesne profits on the rental basis on 23-4-1945. Against that decree the opposite party filed an appeal to the Court of the District Judge, Alipore, which was ultimately transferred to the Court of the Second Additional Subordinate Judge of that place. Shortly after the appeal had been filed the Calcutta Rent Control Order was amended by the addition of a paragraph numbered as pata. 9B. This amendment came into force on 29.8.1945. Sub-para. (3) of the said paragraph gave the tenant, against whom a decree for ejectment had been made before 29-8-1945 on the ground that he had not paid or deposited rent in due time, the right to apply on or before 29-9-1945 to the Court which had passed the decree for vacating the decree and directing the Court to set it aside, if the judgment debtor pays into Court within such time as the Court may order the rent in arrears.
2. The opposite party accordingly filed an application on 28-9-1945 before the Muusif who had passed the decree for ejectment for vacating his decree. The appeal against that decree was then pending in the Court of the Second Additional Subordinate Judge. The application under para. 9B of the said Order, however, could not be disposed of by the Munsif before the appeal was heard, because in spite of repeated requisitions by him the records which had been sent up in connection with the appeal were lying in the appellate Court and were not sent up to him. The appeal was dismissed by the learned Sub-ordinate Judge on 13-2-1946. Thereafter, the records arrived before the Munsif who by his order dated 23-4-1946 allowed the application made to him under para. 9B. The decree for ejectment passed by him on 23-4-1948 was vacated by that order as by that time the opposite party had deposited in Court all the arrears and was still in possession. The decree for costs as made in that decree in favour of the petitioner was varied by disallowing him half the amount of additional court-fees that he had put in respect of the amount decreed for mesne profits. This rule which has been obtained by the plaintiff is directed against the said order. Three points have been urged in support of the rule. They are: (1) that after the appellate Court had passed the decree the Munsif had no jurisdiction to deal with the application made by opposite party under para. 9B of the Rent Control Order; (2) that as the only decree in existence after the appeal had been decided was the decree of the appellate Court, the learned Munsif has set aside what in law did not exist; and (3) that even if the Munsiff's jurisdiction to entertain the application made under para. 9B had continued to exist after the decree of the appellate Court and his decree be taken to be in existence for the purpose of para. 9B of the said Order, the Munsiff had no jurisdiction to set aside the decree so far as it related to costs. At any rate that part of his order is a wrong one. The first two contentions are inter-related and so we would take them up together.
3. We have already stated that the decree for ejectment was passed by the Munsif before 29-8-1945 on the ground that the defendant was in arrears when the suit was filed. Sub-para. (3) of para. 9B of the Order has conferred on the tenant judgment-debtor the right to apply for setting aside the decree for ejectment passed against him on or before 29-8-1945 on that ground. It necessarily follows from the language of Clause (b) of that sub-paragraph that the application is to be made to that Court which had passed the decree sought to be set aside. Simply because the appeal by the opposite party (tenant judgment-debtor) had been pending on the date of his application or on 29-9-1945, that being last date for making such an application under that paragraph, it cannot be contended that the opposite party ought to have filed his application in the appellate Court. The appellate Court had not then passed its decree. The only decree in the field at the date of application and which remained in the field up to 29-9-1945 was the decree of the Munsiff and as that decree which was passed before 29-8-1945 was sought to be set aside, the only Court which had the jurisdiction to entertain the application was the Court of the Munsif, and for the same reason the Munsif would have had jurisdiction at least right up to the time when the appellate Court passed its decree. The petitioner's advocate however, contends that even if the jurisdiction of the Munsif continued up to that time, his jurisdiction ceased the moment the appellate Court passed its decree, on the ground the decree of the Munsif would no longer have any existence, it having merged in the appellate Court's decree. For supporting this contention he relied upon a number of decisions of this Court which laid down that general proposition: Chandra Kant v. Lakshman Chandra 4 A.I.R. 1917 Cal. 417 and other cases. This contention is sought to be met by the opposite party's advocate in two ways. He firstly submits that in view of Clause (1) of para. 9B of the Order the appellate Court had no jurisdiction to proceed with the appeal after the introduction of that paragraph by the amendment of August 1945. Secondly he submits that having regard to the scope and object of the Order the principle of merger of the decree of the Court of first instance into the decree of the appellate Court is not applicable, and the principle relating to dependent decrees ought to be applied. His second contention is that as soon as the Munsif had set aside his decree for ejectment under para. 9B (3) of the Order the decree of the appellate Court automatically vanished. The first contention of the advocate of the opposite party hinges upon the construction to be put upon the sentence 'no decree or order for possession of the house in respect of which such suit or proceeding is pending shall be made by such Court unless,' etc occurring in Clause (1) of para. 9B.
4. The first part of that clause prohibits any Court from entertaining a suit or proceeding by a landlord against a tenant for ejectment on the ground that the tenant was a defaulter unless the landlord had a written permission from the Rent Controller, and the second part takes away the jurisdiction of the Court to pass a decree for ejectment in a pending suit or proceeding of that nature unless the Rent Controller had given the permission in writing. The question is whether the word 'proceeding' in the second part of that clause includes an appeal.
5. As the phrase 'suit or proceeding' occurs in both the parts of Clause (1) of para. 9B, that phrase must have the same meaning in both the parts. The word 'suit' obviously in both the parts means a proceeding in the Court of first instance which has been commenced on a plaint. The word 'proceeding' has however, a wider import than the word 'suit'. Suppose a landlord had instituted a suit on the basis of a notice to quit, and to avoid the provisions of the Rent Control Order relating to ejectment had alleged that the tenant was a defaulter, and he had lost the suit in the Court of first instance on the ground that the notice to quit was either defective or had not been served on the tenant just before para. 9-B had come into force. He filed the appeal against that decree after that paragraph had come into force. We feel no doubt that having regard to the intention of the legislature as appears from the said order the appeal could not be entertained at all by the appellate Court. The word 'proceeding' occurring in the first part of Clause (1) of para. 9-B therefore would include an appeal arising in a suit for ejectment of a tenant on the ground mentioned in para. 9-B and would necessarily include an 'appeal' also so far as the second part is concerned, for we have already pointed out that the word 'proceeding' must have the same meaning in both the parts. The appellate Court, therefore, in the case before us had no jurisdiction to pass the decree which it had passed on 13-2-1946. It was a void decree. The only decree in existence was the decree of the Munsiff, at the time when the Munsiff passed the challenged order, and so the Munsiff had jurisdiction to pass it. The learned advocate for the petitioner, however, presses us to hold on the authority in Prankrishna Mukherjee v. Jnanendra Roy. : AIR1942Cal47 that the second part of Clause (1) covers only the case where the suit or proceeding is pending in the Court of first instance or if the phrase 'proceeding' covers an appeal at all it can only cover an appeal by the landlord and not one by the tenant. In that case Biswas J. delivered the judgment with which Edgley J. agreed. That case related to the construction of the phrase 'suits or proceeding for ejectment' occurring in Sections 3 and 6, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act. It was held that the word 'proceeding' occurring there did not include an appeal much less an appeal by the tenant. The construction of that phrase occurring in the said two sections of the said Act arose earlier in Jahurmia v. Abdul Gafiur : AIR1941Cal452 Biswas J. held the view which he followed in Prankrishna Mukherjee v. Jnanendra Roy. : AIR1942Cal47 but Mukherjea J. said that he was not proposed to go so far as to say that the expression 'proceeding' as used in Sections 3 and 6, Bengal Non-agricultural Tenancy Act, was not sufficiently wide to include an appeal or that an appeal arising out of a suit for ejectment of a non-agricultural tenant was not hit by the provisions of those sections.
6. We are not, as at present advised, inclined to hold that the word 'proceeding' occurring in those sections, does not include an appeal, nor are we prepared to make the distinction drawn by Biswas J. between appeal by the landlord and appeal by the tenant, but we need not pursue the matter further for the question before us relates to the construction of the provisions of a different statute, of a different scope, enacted for a different object and expressed in different language. In fact in coming to his decision Biswas J. himself stated that the aim and policy of the statute are material factors for consideration. Sections 3 and 6, Bengal Non-Agricultural Tenancy Act, provided only for the stay of a suit for ejectment for a specified time and so had not such far-reaching effect as the Rent Control Order, the object of which was to control rent during an emergency and the landlord's right to eject a tenant was curbed, so to say almost taken away, for otherwise control over rent would have been ineffective.
7. Even if the construction of the second-part of Clause (1) of para. 9-B be what is contended for before us by the petitioner's advocate we are of opinion that the principle of merger of the decree of a lower Court in the decree of the appellate Court is not applicable to a proceeding coming under Clause (3) of para. 9-B, as there is in the enactment itself an indication to the contrary. Paragraph 9-B, came into force on 29-8-1945. Clause (1) thereof deals with prospective and pending suits or proceedings for ejectment of the nature mentioned in that paragraph, and Clause (3) deals with such suits or proceedings where the decree for ejectment had already been passed before 29-8-1945. There is to be an automatic stay of execution of such decrees up to 29-91945. Within that period of one month the tenant judgment-debtor has been given the option to apply to the Court which had passed the decree for vacating the decree and that Court and that Court only is to vacate its decree by imposing upon the tenant certain terms and conditions. As the last date for the application by the tenant judgment-debtor is 29-9-1945 the object of the Legislature would be defeated if the doctrine of merger of decrees be applied. The tenant in this case before us could not have applied to the appellate Court even on the last day, namely 29-9-1945, on the ground that the appeal was then pending for the appellate Court could not have entertained the application as it could not have granted the contemplated relief, for the only decree then existing was not a decree passed by it. He could not have filed the application before the appellate Court after the appellate Court had passed its decree, for then time had run out. He could not have withdrawn the application from the Munsiff's Court as soon as the appellate Court had passed the decree and have refiled it before the appellate Court, for having regard to the language of Section 14 (2), Limitation Act, he would not have been able to add to the period of limitation the period of the peahens of his application before the Munsif, for in our view that section is available where there was initial want of jurisdiction. It is also extremely doubtful if that section of the Limitation Act would have been available to a plaintiff or applicant, as the case may be, where a named date is prescribed within which the suit or application has to be filed. The Munsiff therefore had jurisdiction to set aside its decree on the date he did, and the effect of his order is that the appellate decree fell through on the same analogy on which a final decree not appealed against stands vacated when an appeal against the preliminary decree succeeds either wholly or in part.
8. On the second point, which relates to the deduction of costs, we cannot uphold the learned Munsif. The suit was also a suit for mesne profits. Under the law the plaintiff was entitled to value that relief tentatively, but under the provisions of Section 11, Court-fees Act, as applicable to Bengal he had to pay additional court-fee before he could get the decree for mesne profits for the amount for which the Court had proposed to pass in his favour. He had to pay the deficit amount of court-fees.
9. The Court demanded it from him and he had to pay the same. On payment by him the decree for mesne profits for the amount calculated up to the date of the decree was passed. The Court in making an order in favour of the tenant judgment-debtor under Clause (3) of para. 9-B can reduce the costs decreed in the suit itself, but in view of the facts we have noticed above the Munsif was wrong in the exercise of his discretion: in disallowing a portion of the court-fees which the plaintiff had paid under the orders of Court for getting a decree for the amount decreed for mesne profits. We set aside this portion of the order only. The opposite party will have to pay the full value of the court-fees that the plaintiff had paid in the suit. We give him six week's time from now to deposit the same in the Court below. If he deposits the same within the said time the order of the Munsif vacating the decree for possession would stand, otherwise it would stand vacated. We direct each party to bear his costs in this Rule.
10. I agree.