1. This revision case at the instance of the tenant defendant arises out of an application under Section 18 read with Section 12(1)(b), West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, hereinafter called the Act of 1948 rescinding a decree for ejectment and recovery of arrears of rent from July 1945 to May 1946. The decree was passed by the trial Court on 17th March 1948 and an appeal against it was dismissed on 22nd November 1948. The Act of 1948 came into force on 1st December 1948 and the application under Section 18 read with Section 12(1)(b) was filed on 10th December 1943, the tenant being still in possession of the disputed premises. In the application it was stated that all arrears of rent up to November 1948, i.e. up to filing of the application had been paid by the tenant applicant and rescission of the ejectment decree was prayed for. The learned Munsif dismissed the petition holding that by payment contemplated under Section 12(1)(b) of the Act of 1948, the benefit of Section 18 of the same Act is not available. No detailed reasons were given, but purported to rely upon a decision of Banerjea J. The decision was given in Suit No. 2020 of 47 of the Original Side of this Court and an appeal against that decision was dismissed by the Chief Justice and Sinha J. on 9th August 1949.
2. Though the learned Munsif disposed of the matter in a somewhat summary fashion, the case has been argued before me at length and all the facts have been placed before me, It appears that the landlord filed T.S. 163/47 in the 2nd Court of the Munsif of Howrah on 25th March 1947 alleging that the tenant defendant was in arrears from July 1945 to May 1945 and praying inter alia for a decree for ejectment and for recovery of arrears of rent from July 1945 to May 1946. The defence inter alia was that there was no default inasmuch as the defendant deposited the arrears in question as directed by the Rent Controller. At that time the Bengal Rent Control Ordinance which came into force on 1st October 1946 was in operation and there was a provision that if the defaulter paid up the arrears of rent within 30 days from 1st October 1946, he was not liable to ejectment. In the present case, however, the arrears were deposited on 6th December 1946 and accordingly, the deposit being beyond time, the learned Munsif held that it was of no assistance to the defendant. The suit was ultimately decreed on 17th March 1918 and as pointed out before, the decree was upheld on appeal on 22nd November 1948.
3. On behalf of the tenant defendant Mr. Heramba Chandra Guha has contended before ma that his client being still admittedly in possession of the disputed premises, she is now entitled to rescission of the decree in the ejectment suit under Section 18 of the Act of 1948 in view of the circumstances of this case. His contention is briefly that whatever might have been the grounds of overruling his client's contention about not being a defaulter in the ejectment suit which was decided when the Bengal Rent Control Ordinance, 1916, was in force, the fact remains that she had deposited according to the directions of the Rent Controller the arrears claimed in the suit before its institution and accordingly under the present law there is no reason why the previous decree should not be rescinded. He has also pointed out that his client has deposited in compliance with the order of the Rent Controller all subsequent rents not sued for. According to Mr. Guha these are distinguishing features in his case and in view of them it is stronger than the cases decided by Das J. in Civil Revn. No. 277/49 and Civil Revn. No. 537/ 49 and by Banerjaa J. in Suit No. 2020/47 of the Original Side of this Court.
4. On behalf of the landlord respondent Mr. Nirmal Chandra Chakravarti has contended :
(i) No interest as required by Section 12(1)(b) of the Act of 1948 having been paid by the tenant, she is not entitled to the benefit of Section 18.
(ii) Rent not having been tendered to the landlord or remitted by postal money order to the address of the landlord, deposit of rent in the Rent Controller's office was of no assistance to the tenant in view of the Explanation to Section 12(1) of the Act of 1948.
(iii) in any case, the present application in revision under Section 115, Civil P. C., does not lie.
5. So far as the third objection is concerned my view is that it cannot be upheld. Assuming that the lower Court decided wrongly by dismissing the tenant's application under Section 18 of the Act, the mistake concerns jurisdiction in the circumstances of this case and as such this Court has power to interfere.
6. As regards the first objection, I am of opinion that there is force in it. In the ejectment suit the decree of the trial Court is dated 17th March 1948. The appeal against that decree was decided on 22nd November 1948 and the decree of the trial Court merged in that appellate decree. Before the appellate decree was passed, the alleged arrears were already the subject-matter of the lower Court decree and as such interest thereon at 6 1/2 p. c. was payable in terms of Section 12(1)(b) of the Act. No such interest was paid. I am unable to uphold Mr. Guha's contention that on the facts of this case, no interest was payable. In view of non-compliance with Section 12(1)(b), the tenant is not entitled to have the decree in the original suit rescinded or varied.
7. In view of the above finding, it is unnecessary for me to express my opinion regarding the second objection of Mr. Chakravarty.
8. In the result, I decline to interfere with-the order passed by the lower Court rejecting the application for rescinding or varying the-decree. The Rule is discharged but in view of all the circumstances no order is made as to the costs of this Rule.