1. This is a suit for ejectment and for damages. The defendant, under a lease dated 13th August 1918, was a tenant for three years of the upper floor of No. 24, Camac Street, from the 7th June 1918 at a monthly rental of Rs. 300. The lease expired; the plaintiff required the defendant to leave, but the defendant is still in occupation of the premises.
2. The only defence on behalf of the defendant is a plea under the Rent Act as to whether or not the plaintiff bona fide required the premises for his own occupation. But, as has been pointed out more than once in cases in this Court, where the benefit of the Rent Act is claimed the defendant must show that he has paid arrears within three months of the Rent Act coming into force, and subsequently paid his rent regularly within the time fixed in the contract with his landlord, or, in the absence of any such contract, by the 15th day of the following month, or in the event of the landlord refusing to accept rent, by depositing it with the Rent Controller within a fortnight of its becoming due. Where such of these conditions as are applicable are not fulfilled, it is mere waste of time toy consider any other plea under the Calcutta Rent Act. A statement of the payments of rent by the defendant to the plaintiff has been admitted by learned Counsel for the defendant and placed before me, and from that I see that the rent for September 1920 was not paid until the 18th January 1921. On the 1st March 1921 the rent for October November and December was paid at one time, and the rent for January 1921 was not paid until the 7th April of that year. It is quite necessary to go further than this.
3. It is, however, contended that if the rent is accepted subsequently and after default there is a waiver and the section does not apply. I do not agree with this. Where there is an agreement to extend the time for payment before the rent actually becomes due under the lease, there it might well be that the time within which, under Section 11(5), rent has to be paid to the landlord is such extended date, but where the default has already taken place I do not think that subsequent acceptance of rent by the landlord takes the matter out of the provisions of Section 11, Sub-section (5).
4. In these circumstances, there is no defence in this case and there will have to be a decree for ejectment and an order for possession. Since the suit was filed, the plaintiff has been paying without prejudice at the rate of Rs. 350 a month and, therefore, a decree will be made against him at that rate which is not contested. According to the statement produced before me, it appears that, excluding the month off February 1922, a sum of Rs. 1,050 is due in respect of three months. Therefore, there will be a decree for Rs. 1,050 in respect of mesne profits up to and including the 31st January 1922. The defendant will continue to pay at the same rate until he vacates the property, and he will also pay the costs of this suit on scale No. 2 induing costs incurred on the 18th. August. Interest on decree at 6 per cent.