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Radha Ballav Poddar Vs. Motilal Chanda Sarkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 574 of 1951
Judge
Reported inAIR1951Cal569
ActsWest Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 - Sections 5 and 6; ;West Bengal Premises Rent Control Act, 1948 - Section 12(3)
AppellantRadha Ballav Poddar
RespondentMotilal Chanda Sarkar
Appellant AdvocateAtul Chandra Gupta and ;Bhola Nath Roy, Advs.
Respondent AdvocateJitendra Kumar Sen Gupta and ;Ram Krishna Pal, Advs.
DispositionAppeal dismissed
Cases ReferredS. B. Trading Co. v. Satyendra Chandra Sen
Excerpt:
- .....the lower appellate court reversed the decision, acting on its view of the effect of the west bengal premises rent control (amendment) act lxii [62] of 1950. i may say at once that in my opinion the decision of the lower appellate court is correct although the reasons on which the decision is based are quite unsound.3. the suit was instituted on 29-7-1949, before the west bengal premises rent control act xvii [17] of 1950 came into force. during the pendency of the suit on 31-3-1950, the west bengal premises rent control act xvii [17] of 1950 came into force. the ground of eviction was that the tenant was an ipso facto defaulter under section 12 (3) of the act of 1948.4. the west bengal premises rent control act of 1950 came into force on 31-3-1950 and the decree in suit was passed.....
Judgment:

Roxburgh, J.

1. This is an appeal against a decree of the Subordinate Judge 6th Court at Alipore, reversing a decree of the Munsif, First Additional Court of Alipore, in an ejectment suit.

2. The trial Court decreed the suit. The lower appellate Court reversed the decision, acting on its view of the effect of the West Bengal Premises Rent Control (Amendment) Act LXII [62] of 1950. I may say at once that in my opinion the decision of the lower appellate Court is correct although the reasons on which the decision is based are quite unsound.

3. The suit was instituted on 29-7-1949, before the West Bengal Premises Rent Control Act XVII [17] of 1950 came into force. During the pendency of the suit on 31-3-1950, the West Bengal Premises Rent Control Act XVII [17] of 1950 came into force. The ground of eviction was that the tenant was an ipso facto defaulter under Section 12 (3) of the Act of 1948.

4. The West Bengal Premises Rent Control Act of 1950 came into force on 31-3-1950 and the decree in suit was passed on 31-8-1950. By that date the decision in the case of S. B. Trading Go. v. Satyendra Chandra Sen, 55 C. W. N. 756 had been published. In that case it had been held that where there was a failure on the part of the defendants to deposit rent in terms of Section 12 (3), West Bengal Premises Rent Control Act of 1948, the interest of the defendants came to an end and they were not to be deemed as tenants. Accordingly, they could not be regarded as tenants against whom a suit for ejectment of the type referred to in Section 18 (5), Rent Act of 1960 was pending at the date when that Act came into force, so as to be entitled to the benefit of the section. The decree therefore as passed by the learned Munsif on August 31 was correct.

5. Execution was taken out and delivery of possession was obtained by the landlord on 1-12-1950. In the meantime, on the day before, 30-11-1950, the West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act LXII [62] of 1950 had come into force. Under that Act the definition of tenant in Section 2 (11) of Act XVII [17] of 1960 was amended to include 'any person whose interest in the premises has been ipso facto determined under Sub-section (3) of Section 12, West Bengal Premises Rent Control (Temporary Provisions) Act, 1948' and that definition was not only substituted by the amending Act LXII [62] of 1980 but was to be deemed always to have been substituted. Thus, it would seem that the basis of the decision in S. B. Trading Co. v. Satyendra Chandra Sen, 55 C.W.N. 756, had been taken away and was to be deemed never to have existed as from 31-3-1960.

6. On 4-12-1950, an appeal was filed against the decree of the Munsif passed on 31-8-1950. Thus, at the time when the West Bengal Premises Rent Control (Amendment) Act LXII [62] of 1950 came into force on 30-11-1950, there was no actual appeal pending in the strict sense that on that date no actual' appeal had been filed although in fact at the time when the Act came into force the period for filing an appeal had not expired and there was at any rate a contingency that such an appeal might be filed.

7. The lower appellate Court gave its decision on 31-1-1951. That Court dealt with the matter as though Section 6 of Act LXII [62] of 1950 had some application. In so far as the lower Court's decree had been passed on 31-8 1950, that is to say, in the interval between 31-3-1950, and 30-11-1950 this was a case in which a decree for recovery of possession of the premises had been made between the commencement of Act XVII [17] of 1950 and the commencement of Act LXII [62] of 1950 and was one of the cases, therefore, provided for in Section 6. Section 6, however, gives relief only in cases where possession of the premises has not been recovered. In the present case, the only opportunity that the tenant had to file the application under Section 6 was on the very day that Act LXII [62] came into force, namely, 30-11-1960, for possession was obtained the very next day. No application under Section 6 has been made in this case.

8. The question then is first whether the lower appellate Court could give relief to the tenant in the appeal before it on the basis of the provisions of Section 5 of Act LXII [62] of 1950. It could do so only if it could be held that this was a suit 'referred to in Sub-section (5) of the said Section 18 which' was 'pending at such commencement' (of the Act). If so, then Act XVII [17] of 1960 as amended was to be deemed always to have applied to the case, so that the lower appellate Court dealing with the matter was to apply Section 18 (5) in the form set out in Act LXII [62] of 1950, which form specifically gives relief to the person who was an ipso facto defaulter under Section 12 (3) of the Act of 1948.

9. The question is thus whether we are to give a very strict interpretation to the word 'pending' in Section 5 of Act LXII [62], So that we are to hold that the Act does not give relief in cases such as the present, where, although the time for filing an appeal had not expired when the Act came into force, no actual appeal had been filed, or whether we should interpret 'pending' somewhat loosely to cover cases not only where the actual appeal had been filed on or before 30-11-1950, but also cases in which an appeal was subsequently filed. On this question, there is some analogy in the decisions on the interpretation to be given to the definition of 'a suit to which this Act applies' in Section 2(22), Bengal Money Lenders Act, 1940. That phrase meant 'any suit or proceeding instituted or filed on or after the first day of January 1989 or pending on that date and includes a proceeding in execution.' It was held that in cases where, although no actual execution case was pending on 1-1-1939, but an execution case could be filed after that date, and was in fact filed on that date it was 'a suit to which this Act applies.' I think, therefore, that we may safely in the present case interpret the word 'pending' in Section 5 of Act LXII [62] of 1950 to include a case such as the present.

10. The result is, as I have said, that the appeal was to be disposed of on the basis that the law in force at the time when the decree was passed on 31-8-1950 was the law as it stood amended by Act LXII [62] of 1950, and in that view of the matter the decision of the learned Subordinate Judge is entirely correct.

11. I would also add that it would appear that the present view might also be supported on the basis of the amendment of the definition of 'tenant' in Act XVII [17] of 1950 which was made by the amending Act LXII [62] of 1950.

12. The result is that this appeal must be dismissed with costs.


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