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D.R. Gellatly Vs. J.R.W. Cannon - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2063 of 1952
Judge
Reported inAIR1953Cal409,57CWN294
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 14(4); ;Evidence Act, 1872 - Section 115
AppellantD.R. Gellatly
RespondentJ.R.W. Cannon
Appellant AdvocateBimal Chandra Bose and ;Rabindra Nath Mitra, Advs.
Respondent AdvocateRabindra Nath Bhattacharya, Adv.
Excerpt:
- .....against ejectment on the ground mentioned in section 12(1)(i) of the act and not also other defences against ejectment. i am unable to give effect to that contention. the language of section 14(4) is in no way qualified. the policy of the section or, indeed the whole act seems to be that the legislature is not minded to protect a tenant who will not even pay the monthly rent regularly. if the tenant, on being directed to pay the current rent month by month, does not do so, the act quite clearly provides that he will by such conduct forfeit the special protection which the act confers on tenants and will be relegated to his position under the general law. i do not find any justification in the language of section 14(4) to limit the defence against ejectment contemplated by it to.....
Judgment:

Chakravartti, C.J.

1. Certain attractive questions of law were raised in this Rule, but in our view the petitioner is debarred from urging them in view of the facts of the case.

2. An order under Section 14(4) was made against the petitioner on 17-8-1951. It appears that in his defence in the suit, he has taken a plea that there is no relationship of landlord and tenant between him and the opposite party, Mr. Bose, who appears for the petitioner, contended that since that defence had bean taken in the written statement, there could not be any question of making any order under Section 14(4) till the issue raised by that defence was decided against his client and it I was held that he was, in fact, a tenant. That contention appears to be right. The Rent Act can apply only to tenants. In fact, Section 14(4) itself says that an order under that section will be made if the 'tenant' contests the suit. If the person, sued as a tenant, pleads that he is not a tenant, then till that question is decided against him, there can be no question of proceeding against him as a tenant or applying to him Section 14(4) or any other provision of the Rent Act. While that is quite true, it appears to me that the petitioner has precluded himself by his own act from raising the plea against the order now made against him. It appears that although he has taken in his written statement the defence, to which I have already referred, he practically abandoned it in his objection to the application made by the opposite party for an order under Section 14(4). Apart from that, he seems himself to have been the petitioner in a proceeding for standardisation of the rent which could he only on the footing that he was putting himself forward as a tenant under the opposite party. In his objection to the application of the opposite party for an order under Section 14(4), he did not say that he was not a tenant, but only said that the rent was not what the opposite party was asserting it to be, but a lower amount. He even referred to the proceeding for standardisation which he himself had initiated nod to an application for revision which was then pending in this Court.

3. The position, therefore, is that the petitioner contested the application under Section 14(4) on the footing that he was a tenant and, secondly, after the order was made against him, he submitted to it and went on making payments under it for quite a considerable length of time. If his contention was, as now urged before us, that order under Section 14(4) could not have been made against him at all till his defence that he was not a tenant was overruled, he should have moved this Court against the order made on 17-8-1951. Not hiving done so and, in fact, having submitted to it during a number of months, it is not open to him to turn round at this stage and avoid the result of the default he has admittedly committed by setting up the plea that Section 14(4) does not apply to his case at all.

4. It was further contended that even if his defence was liable to be struck out, it could not be the whole defence, nor could it be the whole defence against ejectment. But the defence against ejectment only has been struck out and not the whole defence. The contention was that what Section 14(4) contemplated was only defence against ejectment on the ground mentioned in Section 12(1)(i) of the Act and not also other defences against ejectment. I am unable to give effect to that contention. The language of Section 14(4) is in no way qualified. The policy of the section or, indeed the whole Act seems to be that the Legislature is not minded to protect a tenant who will not even pay the monthly rent regularly. If the tenant, on being directed to pay the current rent month by month, does not do so, the Act quite clearly provides that he will by such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position under the general law. I do not find any justification in the language of Section 14(4) to limit the defence against ejectment contemplated by it to defence against ejectment only on the ground mentioned in Section 12 (1) (i) of the Act.

5. For the reasons given above, this Rule is discharged with costs -- the hearing fee being assessed at two gold mohurs.

Sinha, J.

6. I agree.


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