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Joy Kumar Sarkar Vs. S.K. Chaudhuri - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 8 of 1950
Judge
Reported inAIR1952Cal130,55CWN471
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 9 and 18(5); ; Transfer of Property Act, 1882 - Section 113; ; Calcutta House Rent Control Order, 1943
AppellantJoy Kumar Sarkar
RespondentS.K. Chaudhuri
Appellant AdvocateAjit Kumar Dutt and ; Kiran Bhusan Mukherjee, Advs.
Respondent AdvocateChandra Sekhar Sen and ; Rabindra Nath Choudhury, Advs.
DispositionAppeal allowed
Cases ReferredNandarani Dassi v. Satyanarain
Excerpt:
- .....the plaintiff accepted payment of the said amounts. the defendant has since been depositing the current rent month by month. the suit was decreed by the trial court on 30-9-1947. this decree was affirmed on appeal on 2-3-1948. on 5-4-1948 the defendant preferred a second appeal to this court.3. the appeal was heard by roxburgh j. by his judgment dated 23-5-1950 roxburgh j. allowed the appeal on the ground that the defendant was entitled to the benefit of section 18 (5) of the west bengal premises rent control (temporary provisions) act, 1950 hereinafter called the 1950 act which had come into force during the pendency of the second appeal. the defendant was directed to make the deposit as required by section 14 of the 1950 act. the deposit was duly made. thereupon the decree for.....
Judgment:

G.N. Das, J.

1. This is an appeal by the Maintiff under Clause (15) of the Letters Patent against a judgment of Roxburgh J. dated 23rd May and 9th June 1950. The facts are not in dispute and may be stated as follows:

2. In July 1942, the tenant-defendant took a lease from the plaintiff-landlord of the flat in suit, being the northern portion of the first floor of premises No. P-328 Lake Place, at a monthly rent of Rs . 32/-. The defendant defaulted in payment of rent for the period, April 1943 to February 1945. The plaintiff filed a suit in the Court of Small Causes, Sealdah, for recovery of the said arrears of rent and obtained a decree on 7th June 1945. The amount decreed was made payable in certain instalments, the first instalment being payable in June 1945. The defendant paid only the first instalment and defaulted in payment of the succeeding instalments. On 27th June 1945, the plaintiff duly served on the defendant a notice to quit the premises on the expiration of the month of July 1945. On the 3rd September 1945, the plaintiff filed an application before the Rent Controller for permission to file an ejectment suit against the defendant. On the 5th February 1946, permission was granted by the Rent Controller on the ground of default in payment of rent. The defendant filed an appeal against the order of the Rent Controller. The appeal was dismissed on 30th May 1946. In the meantime, the plaintiff had on the 19th March, 1945, filed an application for fixation of standard rent. The Rent Controller by his order dated 14th December 1945 fixed the standard rent at Rs. 47/- per month: on appeal by the plaintiff, the standard rent was fixed at Rs. 50/- per month by an order dated 8th March 1946. On the 18th June 1946, the plaintiff filed the present suit for ejectment of the defendant. On the 14th September 1946, the defendant deposited the arrears of the rent and the balance of the dues under the said small cause Court decree. The plaintiff accepted payment of the said amounts. The defendant has since been depositing the current rent month by month. The suit was decreed by the trial Court on 30-9-1947. This decree was affirmed on appeal on 2-3-1948. On 5-4-1948 the defendant preferred a second appeal to this Court.

3. The appeal was heard by Roxburgh J. By his judgment dated 23-5-1950 Roxburgh J. allowed the appeal on the ground that the defendant was entitled to the benefit of Section 18 (5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 hereinafter called the 1950 Act which had come into force during the pendency of the second appeal. The defendant was directed to make the deposit as required by Section 14 of the 1950 Act. The deposit was duly made. Thereupon the decree for ejectment was set aside by an order dated 9-6-1950. Leave to appeal under Clause 15 of the Letters Patent was granted. The plaintiff thereupon preferred the present appeal.

4. Mr. Dutt, the learned Advocate appearing on behalf of the plaintiff-appellant has raised two contentions: (1) That Section 18 (5) of the 1950 Act has no application to the facts of this case. (2) That if the Court be of opinion that Section 18 (5) of the. 1950 Act was applicable, then the Court should apply all the provisions contained in Section 14 of the 1950 Act. I shall first deal with the first contention raised by Mr. Dutt.

5. To decide this point, it is necessary to trace the history of the rent control legislations in the city of Calcutta. On the 25th June 1943, the Calcutta House Rent Control Order 1943, hereinafter called the 1943 Order, came into force. Paragraph 9 of the 1943 Order conferred protection on a tenant against ejectment if he paid the full rent allowable by the order and performed the conditions of the tenancy. This was subject to provisos (a) to (c) which took away the said protection in the cases mentioned in the provisos. By order No. 16589 L. R. dated 28th August 1945, Para. 9B was added. Sub-paragraph 9B (3) conferred on the Court the power to set aside a decree or order for recovery of possession made on or before 29th August 1945 if an application was made by the judgment-debtor within 29th September 1945 and paid or deposited all the arrears of rent and such portion of costs of the suit as might be directed by the Court.

6. The 1943 order ceased to have operation on the promulgation of the Calcutta Rent Ordinance V of 1946, (hereinafter called the 1946 Ordinance). The ordinance came into operation on 1-10-1946 and its operation was extended till the enactment of the West Bengal Premises Rent Control (Temporary Provisions) Act XXXVIII of 1948 (hereinafter to be called the 1948 Act). The 1948 Act came into force on 1-12-1948. Section 12 (1) of the 1946 Ordinance conferred on a tenant protection against eviction similar to that contained in Para. 9 of the 1943 Order. A proviso against subletting without consent of the landlord was added: Section 12 (4) required the tenant to pay the current rent, accrued arrears of rent and the excess standard rent if any.

7. Section 17 conferred on the Court a discretionary power to vary or rescind decrees if the Court:

'is of the opinion that the decree or order would not have been made if the order had been in operation at the date of the making of the decree or order.'

Section 26 provided for the continuance under the 1946 Ordinance of proceedings commenced under the 1943 Order as far as may be.

8. The 1946 Ordinance was replaced by the 1948 Act. Section .11 of the 1948 Act embodied provisions similar to Section 12 of the 1946 Ordinance. Two provisos forbidding user for illegal or immoral purposes and deterioration on account of waste or negligence, were added. Section 12 contained provisions similar to Section 12 (4) of the 1946 Ordinance with the variation that the Court might direct payment of interest on arrears of rent and costs. Section 18 contained a provision similar to Section 17 of the 1946 Ordinance. Section 45 (2) contained a provision similar to Section 26 of the 1946 Ordinance. The 1948 Act ceased to operate on the enactment of the 1950 Act which came into force on 30-3-1950.

9. The provisions of the 1950 Act differ materially from those of the 1948 Act. Section 12 superseded Section 11 of the 1948 Act. It contained a provision conferring on tenants protection against eviction. The provisos as regards subletting and requirement of the landlord for occupation were materially altered. The effect of default in payment of rent was substantially modified by Proviso (i) to Section 12 (1) and Section 14. Section 18 conferred on the Court the power to rescind or vary decrees and orders and to give relief in pending actions. Section 18 (1) provided that

'where any decree for recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, but the possession of such premises has not been recovered from the tenant.'

The tenant may under certain conditions, apply to the trial Court for vacating the decree for ejectment. Section 18 (5) provided that 'it at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Court or in Court of first or second appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 the Court shall exercise the power of granting relief against ejectment given by Section 14 of this Act following the provisions and procedure of that section as far as may be necessary and for the said purpose shall make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just'.

10. West Bengal Act LXII of 1950 which amended portions of Section 18 of the 1950 Act came into force on 30-11-1950. It is conceded, that the Amending Act does not affect the rights of the parties in this Letters Patent Appeal. I have therefore, refrained from considering the effect of this Amending Act.

11. In the present case, the suit for ejectment was instituted when the 1943 order was in force. The trial Court decreed ejectment on the ground of default in payment of rent when the 1943 order was in 'operation. The decree for ejectment was passed by the trial Court on 30-9-1947 when the 1946 Ordinance was in force. The lower appellate Court dismissed the appeal by the defendant on 2-3-1948, after the 1946 Ordinance had come into force. The second appeal was filed by the defendant on 5-4-1948 when the 1946 Ordinance was still in force and was heard and disposed of on 23-5-1950 and 9-6-1950, after the 1950 Act had come into operation.

12. Roxburgh J. was of the opinion that Section 18 (5) of the 1950 Act was applicable and relief was granted accordingly. The reasoning of the learned Judge is that:

'there is sufficient provision in the ordinance to show that the context requires some modification of the effect of Section 8 of the Bengal General Clauses Act. The decree then must be taken to have been made under the provisions of the ordinance.'

and that as such the decree of the trial Court and the lower appellate Court must be disposed of not under the 1943 Order but by the 1946 Ordinance.

13. The learned Judge further held that by a parity of reasoning, the second appeal is to be disposed of by the 1948 Act which had come into force in the meantime. The learned Judge then observed that admittedly the tenant had not complied with the provisions of Section 12 (1) (b) of the 1948 Act:

'So a decree would now be so passed by affirmance of the decree of the Courts below. That then brings into operation the provisions of Section 18 (5) of the 1950 Act, and a decree is to be passed accordingly.'

14. I may point out at the outset that the second appeal was filed at a time when the 1946 Ordinance was in force and was disposed of when the 1950 Act had come into force. Even if the line of reasoning suggested by Roxburgh J. be adopted, the second appeal would not be deemed to have been decided by the 1948 Act.

15. But the line of reasoning suggested by Roxburgh J. and the effect of Section 26 of the 1946 Ordinance and Section 45 of the 1948 Act adopted by Roxburgh J. have been negatived by a Bench decision (Mookerji and Lahiri JJ.) in the case of 'Monmohan Moitra v. Gobindadas', 55 Cal WN 6, on which Mr. Dutt placed much reliance. Mr. Sen, the learned Advocate for the respondent, did not dispute the correctness of the Bench decision we must therefore proceed on the view taken in 'Monmohan Moitra's case', (55 Cal WN 6). In the latter case Mookerjee and Lahiri JJ. held that where a suit was instituted while the 1943 Order was in operation, the suit must be decided according to the provisions of the 1943 Order in all subsequent stages viz., in first appeal or second appeal and that the provisions of the 1946 Ordinance or of 1948 Act which had in the meantime come into force, could not be availed of by the tenant-defendant. In that case, the second appeal was disposed of after the 1948 Act had come into force, but it was held that the case fell to be decided by the 1943 Order and not by the 1948 Act.

16. As stated already, Mr. Sen accepted the principles enunciated in 'Monmohan Moitra v. Gobindadas', (55 Cal WN 6). Accordingly we must proceed on the assumption that the decisions of the trial Court, of the lower appellate Court and of this Court in second appeal were made under the 1943 Order and the decrees must be passed or deemed to have been passed on the ground of default under the 1943 Order. Mr. Sen, however, contended that nevertheless, Section 18(5) of the 1950 Act was applicable; because the expression:

'in which no decree for ejectment would be passed except on the ground of default in payment of rent under the provisions of the 1948 Act'

meant that what the Court had to see was whether in the facts of the case before it, the Court 'could pass a decree for ejectment after applying the provisions for default contained in the 1948 Act, even though the 1948 Act might be inapplicable to the case.

17. The contention of Mr. Sen cannot be accepted for a variety of reasons. In the first place, the language of Section 18(5) of the 1950 Act diverges from the language in the corresponding Section 18 of the 1948 Act and section 17 of the 1946 Ordinance. In the second place the interpretation suggested is opposed to the structure of Section 18. Section 18 (1) enables the Court to vacate a decree for ejectment where the decree was made on the ground of default in payment of arrears of rent under the 1948 Act. Section 18(1) applies to decrees which had become final when the 1950 Act came into force. Section 18(5) is complementary to Section 18 (1) and applies to pending actions. As such Section 18(5) must be construed as applicable to a similar state of facts viz., where in the pending action a decree could be passed on the ground of default in payment of rent under the 1948 Act i.e. a default as contemplated by the 1948 Act. In the third place, the interpretation would lead to great inconvenience. If the suit was started at a time when the 1943 Order was in force, as is the case before us, evidence would be lacking in that suit to enable the Court to decide whether a decree could be passed in such a suit on the ground of default in payment of rent as contemplated by the 1948 Act. It is to be noted that the amendments etc., referred to in the later part of Section 18(5) only refer to those amendments which are necessary for applying the provisions of Section 14 of the 1950 Act. In the fourth place, as already pointed out, the interpretation would be opposed by the view taken in 'Monmohan Moitra's case' already referred to.

18. The view suggested by the plaintiff appellant does not involve any hardship. In cases where the default in payment of rent occurred when the 1943 Order was in force, the tenant had ample opportunity for relieving himself from the consequences of his default under the provisions of the 1946 Ordinance and 1948 Act, already referred to. If he failed to take such advantage, he has to thank himself for his laches.

19. In support of his contention Mr. Sen referred us to the following passage at page 742 in the case of 'Nandarani Dassi v. Satyanarain,' 54' Cal W N 735:

'The sections, which I have already referred to, gave the tenant a last opportunity to pay the arrears, and if he paid them or deposited the amounts in Court no decree could be made. Decrees would only be made when default had occurred in the payment of the arrears, or in other words, if the arrears had not been paid within the period specified in Section 12(1) (b) and sub-s. (2). In these cases therefore, the immediate cause of the decree was the failure of the tenant to avail himself of the opportunity given to him by these subsections of paying the amount and thus saving his interest'.

The observations relied on do not in my opinion, touch the present question.

20. In my opinion, Section 18(5) of the 1950 Act applies only to cases where the suit for ejectment,- which is pending disposal in the trial. Court or a Court of first or second appeal would succeed on the ground of default in payment of arrears of rent under the 1948 Act. In this' view, the tenant defendant is not entitled to the benefit of section 14 of the 1950 Act. The first contention raised by Mr. Dutt therefore succeeds.

21. Mr. Sen, learned Advocate for the tenant defendant also contested the finding of Roxburgh J. that the plaintiff landlord had not waived the notice to quit served on the tenant defendant by reason of the fact that the plaintiff landlord had continued his proceedings for fixing the standard rent even after the service of notice and the institution of the suit for ejectment. In my opinion, the view taken by Roxburgh J. on this point is correct.

22. Standard rent is fixed by the Court and affects the premises whoever may be the tenant. The 1946 Ordinance and the 1948 Act require the tenant to pay the excess standard rent as may be determined by the Court, as a condition for protection against eviction. It has to be borne in mind that the Rent Controller may fix the standard rent retrospectively, The tenant's contention if accepted, would deprive the landlord of his rights conferred by law. In my opinion, the facts relied on by the tenant defendant do not amount to a waiver of the notice by the plaintiff landlord.

23. In view of the above findings, it is not necessary to decide the second contention urged by Mr. Dutt, learned Advocate for the plaintiff appellant.

24. As the tenant defendant has been in occupation for a long time and in view of the conditions prevailing in the city, Mr. Dutt, learned Advocate for the plaintiff landlord very fairly agreed to give the tenant defendant reasonable time to vacate the disputed premises. In my opinion the ends of justice require that the defendant tenant should have time till the end of July 195.1 to vacate the premises on condition that he pays to Mr. Dutt on his receipt compensation for use and occupation at the rate of the standard rent every month, the payment to be made in advance on or before the 15th' of each month; the first of such payment to commence from April 1951. In case of non-compliance, liberty is given to the parties' to mention the matter to the Court.

25. The result therefore, is that this appeal succeeds, the judgment and decree of Roxburgh J. is set aside and that save as regards costs, the decree of the first appellate Court is affirmed. The execution of the decree for ejectment will, however, be subject to the conditions referred to above. The payments made by the defendant tenant in pursuance of the order of this Court will be credited towards the sum due under the decree.

26. Having regard to the facts and circumstances of the case, we direct that the plaintiff appellant do get the costs of this appeal, but that the costs of the trial Court, first appellate Court and the second appeal be borne by the parties. The interests and costs paid by the tenant defendant under order of Roxburgh J. should be adjusted towards the compensation and costs which are directed to be paid as aforesaid.


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