G.N. Das, J.
1. This is an appeal by the defendant against a judgment and decree passed by Sri N. Banerjee, Subordinate Judge, 3rd Additional Court, Alipore, dated 11-8-1951.
2. The plaintiff respondent instituted a suit for ejectment of the defendant on the allegation that the defendant was his tenant in respect of premises No. 91, Rashbehari Avenue since May, 1942 at a rent of Rs. 275/- per month; that the defendant failed to pay the rent for the period, July to September, 1949 and hence his tenancy was ipso facto determined under Section 12(3), West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, that the plaintiff required the said premises bona fide for his own use and occupation. The plaintiff prayed for ejectment of the defendant, for a decree for arrears of rent and for damages at the rate of Rs. 15/- per diem since October, 1949, till delivery of possession. This suit was instituted on 6-1-1950, that is, at a time when the Rent Control Act of 1948 was in force.
3. The defendant filed a written statement denying that he had defaulted in payment of rent and stating that even if the defendant was a defaulter, the defendant's tenancy could only be determined by the service of a notice to quit and that the suit was not maintainable on this ground. He also pleaded that the plaintiff did not require the premises bona fide for his own use and occupation, and that the damages claimed were excessive.
4. During the course of the suit, on 3-2-1951 the defendant filed an application under Section 18(5), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. This application was heard by the learned Subordinate Judge, and by his order dated 6-2-1951, he rejected the said application on the ground that the defendant was in default in payment of rent for six months prior to the coming into operation of the 1950 Act. The learned Subordinate Judge, however, gave the defendant an option to deposit the amount due, if he so desired, at his own risk. The learned Subordinate Judge thereafter heard the suit and decreed the same on the finding that the defendant was a defaulter and that his tenancy wag ipso facto determined and that the defendant was not entitled to the benefit of the provisions contained in Section 18(5) of the Rent Control Act, 1950. He accordingly made a decree for ejectment for arrears of rent as claimed and for damages at the rate of Rs. 9-2-8 pies per diem upto the date of the decree. He also directed that mesne profits subsequent to the decree would be determined in accordance with the provisions of Order 20, Rule 12, Civil P. C.
5. Against this decree the defendant appealed to this Court. The appeal was heard in part on 25-11-1952, and the question whether in applying the provisions of Section 18(5) of the Bent Control Act, 1950, as amended by Act 62 of 1950, the proviso to Section 14(3) of the said Act was applicable or not, was referred to a Full Bench.
6. The Full Bench has now given its answers to the above question. The decision of the Full Bench is reported in -- 'Ajit Kumar v. Surendra Nath', : AIR1953Cal733 (A). So far as this case is concerned, the decision of the Full Bench is that in cases filed while the 1948 Act was in operation and which were pending at the date of the commencement of the 1950 Act as also at the date of the commencement of Act 62 of 1950 the material default is default in payment of arrears of rent after the amending Act 62 of 1950 came into force.
7. The appeal has now come up before us for final hearing. We have heard Mr. Ghosh for the appellant and Mr. Gupta in reply.
8. Mr. Ghosh has first contended that as the Full Bench has taken a view of the law different from that on which the learned Subordinate Judge proceeded when he made his order on 6-2-1951 rejecting the defendant's application under Section 18(5) of the Rent Control Act, 1950, the defendant appellant should be put back in the position which he would have occupied but for the erroneous order made by the learned Subordinate Judge on 6-2-1951. The argument is that if the learned Subordinate Judge had made an order in accordance with the decision of the Full Bench, the defendant appellant would have the liberty of depositing the arrears of rent and of getting rid of the consequence of the default incurred by reason of non-payment of rent.
The question is whether the defendant was prevented from taking advantage of the correct legal position by reason of the erroneous order made by the learned Subordinate Judge dated 6-2-1951. The order of the learned Subordinate Judge did not prevent the defendant from making a deposit after the date of the order. If the defendant wanted to take advantage of the correct position in law, he should have acted in accordance with such a legal position and he should have deposited the current rent which fell due after the making of the order on 6-2-1951. The order of the learned Subordinate Judge did not stand in the way of his making a deposit of rent as required by law.
The only consequence, in my opinion, of the erroneous order of the learned Subordinate Judge was that the defendant cannot be held answerable for the defaults which he may have committed prior to the making of the order. If proper orders had been made, the defendant would have had the liberty of making the deposit upto that date. Although the learned Subordinate Judge directed by his order that he could make the deposits at his risk, the defendant never made the deposits and thereby prevented the consequence of further defaults in payment of rent.
9. It was contended by Mr. Ghosh that the effect of Section 107, Civil P. C. is that this court should give the defendant the relief which he was entitled to at the date when the erroneous order was made by the learned Subordinate Judge on 6-2-1951. In my opinion this is not the true view of Section 107, Civil P. C. That section empowers the appellate court to exercise the same powers and perform the same duties as the court of first instance. Such powers have to be exercised by the appellate court at the date when it decides the appeal. Necessarily the powers which the appellate court will exercise, must be determined in relation to the state of facts at the time when the appellate court is called upon to exercise the powers under Section 107. In this case, admittedly no rent has been paid since July, 1949 and if we are to apply the decision of the Full Bench to the state of facts as they are at the present moment, it is undisputed that the defendant cannot claim the protection against ejectment under the provisions of the Rent Control Act, 1950, as amended by Act 62 of 1950.
10. Mr. Ghosh also contended that the effect of Section 105, Civil P. C. is that the appellant can challenge the order made by the Subordinate Judge on 6-2-1951. Apart from the considerations to which we have already referred, it is to be seen that in the present case the applicability of Section 18(5) of the Rent Control Act, 1950 was again canvassed at the time of the final hearing of the suit. At that time the defendant was in default for more than six months after the amending Act 62 of 1950 came into operation. The defendant was therefore not entitled to the benefit of Section 18(5) of the Rent Control Act, 1950 on the date the learned Subordinate Judge delivered his judgment. There is therefore no substance in the contention raised on behalf of the appellant that the appellant should be allowed a further opportunity of getting rid of the consequences of his default by giving him permission to deposit all the arrears of rent due since July, 1949.
11. The next question urged by Mr. Ghosh is that the plaintiff is not entitled to maintain the suit for ejectment in the absence of service of a notice to quit. As already stated, the suit was filed on 6-1-1950. At that time the defendant's tenancy had been determined under Section 12(3) of the Bent Control Act, 1948. There was no necessity for the service of a notice determining the tenancy. The plaintiff had a good cause of action to eject the defendant. That cause of action was sued upon. It is well settled law that the rights of the parties must be governed by the state of law as it was when the suit was instituted. The legislature may however, retrospectively take away a subsisting cause of action.
In this view the effect of Act 62 of 1950 has to be considered. Act 62 of 1950 amended Clause 11 of Section 2 of the Rent Control Act, 1950. The relevant portion of Section 2 of Act 62 of 1950 which substituted a new clause for Clause 11 of the 1950 Act defined the word 'tenant' as including
'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 Act, 1948'.
The effect of the amendment is not to wipe oft the operation of Section 12(3) of the Rent Control Act, 1950 altogether. The amendment substituted, for the purpose of applying the provisions of the Rent Control Act, 1950, a new definition of the word 'tenant' as including a 'tenant whose tenancy has been ipso facto determined under Section 12(3) of the Rent Control Act, 1948.' It did not retrospectively take away the right which was already vested in the landlord while the 1948 Act was in force.
A contrary view would lead to the impossible result that all suits for ejectment instituted on the ground of ipso facto determination of the tenancy under Section 12(3) of the Rent Control Act, 1948 and which were pending at the date of the commencement of the 1950 Act and of its amendment by Act 62 of 1950, would have to be dismissed even if the arrears of rent, were not paid. Such a consequence would render the applicability of Section 18(1) or Section 18(5) of the Rent Control Act of 1950 as amended by Act 62 of 1950 wholly unnecessary. In my opinion, the effect of the amending Act was not to give automatic protection to a tenancy which had been determined effectively under Section 12(3) of the Rent Control Act, 1948 and in respect of which cause of action a suit had been brought before the 1950 Act. This suit, therefore, cannot fail on the plea of demurrer based on the ground that no notice to determine the tenancy had been served on the tenant.
12. In this view it is not necessary to consider the question whether the plaintiff required the premises bona fide for his own occupation.
13. The trial Judge was of the opinion that the plaintiff had successfully established his case that the premises were required by him bona fide for his own occupation. (After referring to the evidence on this point, his Lordship concluded ) In my opinion, the learned Subordinate Judge has rightly held that the plaintiff has succeeded in establishing that he required the premises bona fide for his own occupation.
14. As regards the default in payment of rent, the Subordinate Judge found that the defendant was in default since July, 1949. In fact, this is admitted by witness No. 1 who deposed for the defendant. The suggestion made by Mr. Gupta that the suit was maintainable merely on the ground that the plaintiff required the premises bona fide for his own occupation, cannot however be accepted. The mere fact that the plaintiff required the premises for the occupation does not afford a cause of action for a suit in ejectment. The cause of action depends on the fact that the tenancy had been ipso facto determined by default in payment of rent for three months under Section 12(3). The fact of bona fide requirement of the landlord is merely an exception to the protection against ejectment conferred by Section 11 (1) of the Rent Control Act, 1948. This fact does not furnish an independent ground on which the plaintiff can seek ejectment.
15. The result therefore is that this appeal fails and is dismissed with costs. In view of the prevailing circumstances in Calcutta, the defendant will have time till the end of October 1953, to vacate the premises.
16. I agree.