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Kalicharan Ganguly Vs. Rameswarlal Agarwalla - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata High Court
Decided On
Case NumberOrdinary Original Suit No. 4044 of 1949
Judge
Reported inAIR1950Cal477,54CWN577
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 16 and 18(1)
AppellantKalicharan Ganguly
RespondentRameswarlal Agarwalla
Appellant AdvocateSridhar Chatterjee, Adv.
Respondent AdvocateT.P. Das, Adv.
Excerpt:
- .....chatterjee appearing on behalf of the plaintiff argued that in view of the definition of the word 'tenant' in section 2 (ll) of the new act section 16 has no application to a suit such as this. section 2 (ll) is as follows : ' tenant' means any person by whom rent is, or but for a special contract would be, payable for any premises, and includes any person who is liable to be sued by the landlord for rent.' this definition is materially different to that under the old act, by section 2 (ll) of which the word 'tenant' was defined as follows :''tenant' means any person by whom, or on whose account, rent is, or but for a special contract would be, payable for any premises and includes a legal representative, as denned in the code of civil procedure, 1908 of the tenant and a pardon.....
Judgment:

Mitter, J.

1. This is a suit for ejectment on the ground of the tenancy having been determined ipso facto by reason of default in paying rent for three successive months. The suit was filed in September 1949 when the West Bengal Premises Rent Control Act of 1948 was in force.

2. The plaintiff let out the premises concerned to the defendant as a monthly tenant with effect from 1st November 1948 at a rent of Rs. 200/- per month. The terms of the tenancy were incorporated in a document which was executed on 17th October 1948.

3. The plaintiff's case is that the defendant was very often in arrears with his rent and that he failed to pay any rent for June, July and August 1949. It was a term of the tenancy that rent should be paid in advance on or before the 15th of the current month. The defendant having thus defaulted in paying rent for three successive months, the plaintiff filed the present suit on 21st September 1949.

4. The defendant's case as pleaded is that at the time of the agreement setting out the terms of the tenancy he paid to the plaintiff Rs. 1000/- as salami and Rs. 100/- as pleader's fees in connection with the agreement. According to him, he was subsequently advised that the payment of a salami was illegal and that the said sum of Rs. 1000/- was refundable. His case further is that when in June 1949 he threatened the plaintiff with legal proceedings to recover the said amount, the parties, agreed that the said salami and the advance deposit of Rs. 200/- which the defendant had paid to the plaintiff would be set off against rent for the months of July to December 1949. Thus according to the defendant, no rent was due to the plaintiff at the date of the institution of the suit. This case is set out both in para. 8 of the defendant's affidavit sworn on 4th January 1950 and in para. 4 of his written statement. The said affidavit was used in opposition to the plaintiff's application for summary judgment under Chap. 13A, Original Side Rules.

5. By the time the suit came up for hearing, the West Bengal Premises Rent Control (Temporary Provisions) Act XVII [17] of 1950 had become law. In view of this legislation I have allowed an issue to be raised as to jurisdiction.

6. The following are the issues :

(1) Has the Court jurisdiction to try this suit?

(2) Is the suit maintainable

(3) Is the defendant in arrears in respect of rent since Jane 1949 or at all

(4) To what relief, if any, is the plaintiff entitled

(His Lordship after discussing the evidence disposed of issue 8 in favour of the plaintiff and proceeded :)

[7-12] As to issue 2, namely, whether or not the suit is maintainable, Mr. T.P. Das's contention was that the deposit of Rs. 200/- had been agreed to be held as rent for the last month of the tenancy and that therefore there was no default in paying rent for three consecutive months. On that footing, according to Mr. Das, there was default for two successive months at the date of the institution of the suit. The answer to this contention is to be found in the agreement itself which by para, 12 provides :

'This amount will be regarded as being the rent for the final month when the tenant vacates the premises as aforesaid.'

That being so, the defendant cannot take advantage of the said deposit in order to avoid default for three successive months. The deposit having been held as rent for the last month of occupation, the tenancy had been ipso facto determined before the institution of the suit. Issue 2 is therefore answered in the affirmative.

13. Mr. Sridhar Chatterjee appearing on behalf of the plaintiff argued that in view of the definition of the word 'tenant' in Section 2 (ll) of the new Act Section 16 has no application to a suit such as this. Section 2 (ll) is as follows :

' Tenant' means any person by whom rent is, or but for a special contract would be, payable for any premises, and includes any person who is liable to be sued by the landlord for rent.' This definition is materially different to that under the old Act, by Section 2 (ll) of which the word 'tenant' was defined as follows :''Tenant' means any person by whom, or on whose account, rent is, or but for a special contract would be, payable for any premises and includes a legal representative, as denned in the Code of Civil Procedure, 1908 of the tenant and a pardon continuing in possession after the termination of a tenancy in his favour.' As under the new Act a tenant does not include a person continuing in possession after the termination of a tenancy in his favour, the defendant, whose tenancy had been validly determined under the old act by reason of default is not a tenant within the meaning of Section 2 (ll) of the new Act. Section 16 speaks of a suit by a landlord against a tenant in which recovery of possession is claimed. According to the new definition of the word 'tenant,' this suit can no longer be treated as a suit against a tenant, but must be regarded as a suit against a trespasser; although under the old Act, having regard to the definition of a 'tenant' the suit was a suit by a landlord against a tenant. As Mr. Chatterjee does not press for eviction, it is not necessary, in my view, to decide this point.

14. I now turn to the consideration of the issue as to the jurisdiction of this Court to try this suit. The question for determination is what is the position of pending suits in view of the West Bengal Premises Rent Control (Temporary Provisions) Act XVII [17] of 1950? Sections 16 and 18 are the two relevant sections for the purpose. The words 'no other Court shall be competent to entertain or try such suit' in Section 16, except those Courts set out in Schedule 'B,' seem to nullify the effect of the words 'the tenant may apply to the trial Court within 60 days .....' occurring in Sub-section (l) of Section 18. An elementary rule of construction of statutes is to reconcile, if possible, the apparent conflict between the two sections. Applying that rule and in order to bring Section 16 into harmony with Section 18, one has to read the word 'or' in Section 16 as meaning 'and.' The word 'or' is not always disjunctive. Here the word 'or' seems to me to be interpretative or expository of the former word 'and.' Unless this is so read, Section 18 will not mean what it says; and further, the section will be entirely robbed of its content, because there is no provision in this cumbrous statute for transfer of pending suits to Courts set out in Schedule B. This is an obvious lacuna in this statute of dark prolixity. That being so, unless effect is given to the plain words of Section 18, there will be a complete deadlock in the practical working of the Act For these reasons, I am clearly of opinion that the High Court in its Original Side has seisin of all pending suits and the new Act does not take away its jurisdiction to try these suits. A pending suit such as this, is however to be disposed of in the manner expressly provided for in Section 18. Sub-section (5) of Section 18 is as follows: '(5) If 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 parsed except on the ground of default in payment of arrears of rent under the provisions of the West Bangal Premises Bent Control (Temporary Provisions) Act (XXXVIII [38] of 1918) the Court shall exercise the powers 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.'

Section 14 provides for protection against eviction in certain circumstances. A reference to Sections 12, 14 and 18, which must be read together shows that the relief of absolute ejectment open to a landlord under the old Act has now been amended to one of conditional ejectment, the condition being that if within the time expressly mentioned in the statute, namely, a fortnight, the tenant pays up all arrears of rent together with interest, then he should be allowed to continue to occupy the premises as a tenant. This position is accepted by both parties. That being so, the plaintiff is entitled to a decree for Rs. 2000/- being arrears of rent upto the end of last month. Accordingly, I order that the defendant should pay to the plaintiff the said sum of Rs. 2000/- together with interest at the statutory rate on the fifteenth day from the date of this order excluding the date of the order. The defendant must pay the costs of the suit.

15. My attention has been drawn to the concluding portion of Section 14 which requires that the Court

'shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.'

On the Original Side, it is not possible for any Judge to arrive at an aggregate sum which will include the costs of the suit. Any figure that I may mention as costs can only be an arbitrary figure and must work to the prejudice of one of the patties. The absence of such an order as to costs is an advantage to the defendant who is concerned to retain his tenancy with least payment. The order as to costs must be separated from the order as to payment of arrears of rent together with interest. The defendant must, therefore, pay the costs of this suit when taxed. In default of the payment of Rs. 2000/- together with interest at the statutory rate within the time mentioned, there will be a decree for possession.


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