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

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 453 of 1948
Judge
Reported inAIR1950Cal515,55CWN75
ActsTransfer of Property Act, 1882 - Section 113; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 12, 12(1), 14(3) and 18(5); ;Calcutta House Rent Control Order, 1943; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1948
AppellantS.K. Chaudhuri
RespondentJoy Kumar Sarkar
Appellant AdvocateChandra Sekhar Sen, ;Rabindra Nath Choudhury and ;Bejoy Bhose, Advs.
Respondent AdvocateAjit Kumar Dutt and ;Kiran Bhusan Mukherji, Advs.
DispositionAppeal allowed
Cases ReferredAbanindra Mohan v. Khazamull Sardar
Excerpt:
- .....1946. (4) tenant has paid or deposited rent regularly in due time since then. (5) calcutta rent ordinance came into force on 1st october 1946 (later continued in force by the west bengal expiring laws act, 1948). (6) trial court decreed the suit on 30th september 1947. (7) lower appellate court decreed appeal on 2nd march 1948. (8) appeal presented to high court on 5th april, 1948. (9) west bengal premises rent control (temporary provisions) act came into force on 1st december 1948. (10) west bengal rent control act 17 (xvii) of 1950 came into force on 31st march 1950. 8. the suit was brought under the calcutta house rent control order, 1943. ordinarily it would be disposed of throughout under the provisions of that act. the decree was passed by the trial court on 30th september.....
Judgment:

Roxburgh, J.

1. This appeal arises out of a suit for ejectment filed on 18th June 1946 under the provisions of the Calcutta Rent Control Order, The premises had been let in July 1942 at a rental of Rs. 32. The plaintiff based his suit on the grounds that notice had been served and that the defendant was a habitual defaulter. There was also a claim for damages for the period subsequent to the notice. The trial Court decreed the suit giving damages only up to the date of suit.

2. There was an appeal by the defendant to the subordinate Judge, 2nd Court, Alipore, and a cross objection by the plaintiff for damages from the date of suit to the date of recovery of possession. The lower appellate Court dismissed the appeal with costs and allowed the defendant's (plaintiff's?) cross objection. The defendant now appeals.

3. For the appellant three points were argued before me (1) that as the plaintiff had instituted a proceeding for fixing a standard rent before the Rent Controller before the date of the notice of ejectment and continued it after that and during the hearing of the suit, he had waived the notice; (2) that notice had not been properly served; and (3) that the provisionsof Section 18 (5) of the latest West Bengal Premises Rent Control Act, 1950, are applicable to the case.

4. There seems to me to be no substance in the first point. Standard rent is fixed for premises whoever may be the tenant, Again the landlord could not be sure that he would win his suit, he has not yet finally won it. He was surely entitled to protect his interest by obtaining an order from the Rent Controller as to the rent payable in case his suit failed. His proceedings in doing so could not in any sense amount to waiver of his contention that after the notice the tenant was a trespasser liable to ejectment on the ground given by him. Lastly the Rent Controller had power to make his order with retrospective effect, and in fact did so in part for a period prior to the notice. The landlord was entitled to have that established in so far as it affected the period prior to the notice when there was no question that the defendant was a tenant, without any question of waiver.

5. As to the second point this is concluded by the findings of fact, no error of law having been committed in arriving at those findings. Four attempts to serve notice were made. The third attempt was by way of sending a registered cover with the notice, which was returned with the endorsement 'left' made by the postal peon. The fourth attempt was by attempt at personal service, no one at the premises would accept the notice, and it was stuck up. There is authority that the first, or rather third attempt, amounted to good service, but in any case the fourth attempt certainly did so. This contention therefore also fails.

6. We have now to attempt to understand and apply Section 18(5), West Bengal Premises Rent Control Act, 1950 (hereafter called the 1950 Act) which runs as follows:

'18 (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 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, Act 38 (XXXVIII) of 1948, 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 coats as may be just.'

7. The following dates and facts are important in this case:

(1) Calcutta House Rent Control Order came into force on 23rd June 1943.

(2) Suit was filed on 18th June 1946.

(3) All arrears were paid by 14th September 1946.

(4) Tenant has paid or deposited rent regularly in due time since then.

(5) Calcutta Rent Ordinance came into force on 1st October 1946 (later continued in force by the West Bengal Expiring Laws Act, 1948).

(6) Trial Court decreed the suit on 30th September 1947.

(7) Lower Appellate Court decreed appeal on 2nd March 1948.

(8) Appeal presented to High Court on 5th April, 1948.

(9) West Bengal Premises Rent Control (Temporary Provisions) Act came into force on 1st December 1948.

(10) West Bengal Rent Control Act 17 (XVII) of 1950 came into force on 31st March 1950.

8. The suit was brought under the Calcutta House Rent Control Order, 1943. Ordinarily it would be disposed of throughout under the provisions of that Act. The decree was passed by the trial Court on 30th September 1947. In the meantime the Calcutta Rent Ordinance, 1946 (hereafter called the Ordinance) had come into force on 1st October 1916. Under Section 17 of that Ordinance, it was provided that if any decree had been passed before the Ordinance came into force bat possession had not been recovered the Court, if it was of opinion that the decree would not have been made if the Ordinance had been in operation at the date of the making of the decree might rescind or vary it for the purpose of giving effect to the provisions of the Ordinance. There is nothing specific in the Ordinance relating to pending proceedings, unless we are to take Section 26 as covering legal proceedings; but it can hardly be suggested that relief in accordance with the provisions of the Ordinance was to be given in respect of decrees passed before it came into force, and none in cases pending when it came into force. There is sufficient provision in the Ordinance to show that the context requires some modification of the effect of Section 8, Bengal General Clauses Act. The decree then must be taken to have been made under the provisions of the Ordinance.

9. By a parity of reasoning as given above, to show that the case started under the Calcutta House Rent Control Order was to be disposed of in the trial and appeal Courts under the provisions of the Ordinance, than this second appeal is to be disposed of primarily under the West Bengal Premises Rent Control Act, 1948 (hereafter called the 1948 Act). If the tenant had complied with the provisions of Section 12 (1) (b), then no decree could be passed against him under that Act; but admittedly he has not, so a decree would now be so passed by affirmance of the decree of the lower Courts. That then brings into operation the provisions of Section 18 (5) of the 1950 Act, and a decree is to be passed accordingly.

10. For the landlord-respondent here it is argued, (1) that the reference to Section 14 in Section 18 (5) of the 1950 Act means that he will be entitled to show that the defendant has committed a default as described in Section 12 (1) proviso (i) of that Act, (2) that for similar reasons he will be entitled to show that the tenant is not entitled to the protection of Section 12 because of the proviso to Sub-section (3) of Section 14, (3) that the reference to amendment of pleadings in Section 18 (5) shows that he will be entitled to amend his pleadings for asserting the above, (i) that he will also be entitled to amend them for the purpose of showing that he has some other ground for eviction of the tenant under the 1948 Act, e. g., that the landlord bona fide requires the premises for his own use.

11. To dispose of these contentions, it is necessary to consider the general structure of the previous legislation, as well as that of the 1950 Act in order to appreciate the marked difference between them. It will be sufficient probably if we refer to the Ordinance of 1946 and the Act of 1948 only as regards earlier legislation. All three enactments recognise the existence of a right to eject under the Transfer of Property Act. They then substantially take this right away by a provision which on the face of it is merely one of procedure, each enacts (Section 11 Ordinance, Section 12 of the 1948 and 1950 Act) that notwithstanding anything contrary in other Act no decree for ejectment shall be passed (with some qualification in the Ordinance, and 1948 Act). They then by way of provisos give back the right to eject in certain cases. Section 12 (4) of the Ordinance then again takes away the benefit of the provisos from the tenant unless he fulfils certain conditions, under Section 12 (4) (a) he must pay regularly by the fifteenth of the month or the contract date; under Section 12 (4) in the case of arrears accrued before the commencement of the Ordinance he must pay them up within one month of the data of commencement of the Ordinance. Similar though slightly different provision 13 made in the 1948 Act in Section 12 (1) (a) and (b). The effect of these provisions is to lay down certain conditions in which a tenant can be ejected, though the form is by way of saying in what cases decrees can be passed. Prima facie when it is enacted that no decree shall be passed except in certain conditions the provision will apply to all cases, any case pending whether in trial Court or in appeal at the date the enactment comes into force, and any case started after the commencement of the Act but the real intention can only be gathered by examiningthe whole enactment in question. As I have said above under the Ordinance and the 1918 Act it was clear that the provisions applied (subject to a caution to be discussed below) to pending litigation. Sections 17 and 26 of the Ordinance, and Sections 18 and 45 of the 1948 Act make that clear.

12. A word of caution is necessary here. Though an Act may have some retrospective effect and apply to pending proceedings, it does not follow that every provision of the Act will have retrospective effect. Without elaborating the point, it may be stated that examination of the various enactments shows many provisions which are clearly not to take effect before the commencement of the Act. Section 12 (8) of the Act of 1948 is one example (with respect it may be pointed out that the recently reported case of Akhil Ranjan Das v. B.N. Biswas, : AIR1950Cal472 ) appears to overlook this fact. The distinction as regards Section 14 of the Ordinance was recognised in Abanindra Mohan v. Khazamull Sardar, 52 C.W.N. 698.

13. When we come to the 1950 let the case is clearly different. The root provision in Section 12 is more drastic than that in Section 11 of the Ordinance or Section 12 of the 1948 Act; there is no qualification. But there is no provision corresponding to Section 17 of the former or Section 18 of the latter. Section 18 of the 1950 Act has a much more limited scope. Section 18 (1) deals with decrees passed before the Act came into force, Section 18 (5) with suits pending in the trial Court or in appeal. In the case of decrees passed (before the commencement of 1950 Act) under the 1948 Act on the ground of default Section 18 (1) provides that the tenant shall be relieved from ejectment provided he pays up all arrears assuming that the tenancy had continued up to the month in which an order is made under the section directing the tenant to pay that amount plus interest and costs on a date not later than forty days from the date of the order. No question arises as to applicability of any other provision of the 1950 Act to decrees passed before its commencement.

14. Then in Section 18 (5) specific provision is made for pending cases where (but for the provision of Section 18 (5)) a decree would be passed under the 1948 Act. Section 18 (5) provides that the Court is to exercise the powers given under Section 14 of the Act. Unless the wording of the provisions clearly provides otherwise, we may take it that the provision made under Section 18 (5) is intended to achieve much the same substantial result in these pending cases as is provided (in Section 18 (1) ) for eases where a decree for default had already been passed under the 1948 Act before the 1950 Act came into force. This is the same assumption as we made in regard to the 1948 Act, and the Ordinance, but the result is the opposite. Section 18 of the 1948 Act, and Section 17 of the Ordinance clearly applied the provisions of those enactments to cases where decrees were passed before their commencement, hence, (coupled with the effect of oases 45 and cases 26 respectively of those enactments) we deduced that the enactments applied to pending cases. But in the 1950 Act the intention seems clear not to apply its provisions to either type of case except in the limited respect provided in Section 18 (1) and Section 18 (5).

15. If we turn then to Section 14 (1) we find that by applying its provisions practically the same result will be achieved as under Section 18 (1), for the Court will under Section 14 (1) calculate the amount in 'arrears' up to the date of the order mentioned thereafter, as also the amount of interest on such arrears of rent calculated at the rate of 9 and three-eighths per centum per annum from the day when the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before the date fixed in the order. Under Sub-section (2), the date in question is to be the fifteenth day from the date of the order, excluding the date of the order.

16. It is to be noted that under Section 18 (5) of the 1950 Act, the Court is to exercise the powers of granting relief against ejectment given by Section 14 of the Act following the provisions and procedure of that section as far as may be necessary. It does not provide that the relief is to be given against the same default as that against which Section 14 is to give relief, namely, the default created by the effect of proviso (i) to Sub-section 1 of Section 12 of the Act. The default against which relief is to be given following the provisions and procedure of Section 14, is the default under the 1948 Act which would result in the decree for ejectment under that Act.

17. This disposes of the first three points argued for the landlord respondent set out above. If the tenant is not liable for the default created by Section 12 (2) (i), the first point is disposed of. Consequently the proviso in Section 12 (3) equally cannot apply against the tenant, for that refers to three defaults as created by Section 12 (1) (i) within a period of 18 months, and if that does not apply against the tenant, the latter proviso cannot apply.

18. It remains to consider the fourth point urged for the landlord respondent. Is he to be allowed now to show that under the 1948 Act he could get a decree on a ground other than the ground of default. In this connection Mr. Dutt laid stress on the provision in Section 18 (5) for amendment of pleadings. The Court is to exercise the powers of granting relief against ejectment given by Section 14 of the Act . . . , and for the said purpose is to make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just. The words 'for the said purpose' suggest that the amendment is to be limited to the purpose of giving relief in a case assumed to be one to which Section 18 (5) is applicable, Mr. Dutt urges that they mean also for the purpose of showing that the case is not one to which Section 18 (5) is applicable i. e., for showing that there is some other ground for ejectment other than default. He contends that no amendment would apparently be necessary merely for the limited purpose of giving relief. I do not think this is strictly correct. In determining the amount payable under Section 14 there might be some question as to amount of arrears at the date when the rent became arrears, and possibly as to subsequent payments. In a suit for ejectment for default actual arrears might not have been claimed. For example default which was made the ground for ejectment might be that provided, for in Section 12 (3) of the 1948 Act, a mere case of delay in payment for three consecutive months.

19. On the other hand, it can be argued that if another ground for ejectment does exist, it will save multiplicity of litigation to allow, with suitable orders as to costs, the landlord still to establish that ground, especially in view of the fact that the latest Act has given a new privilege to the tenant to avoid ejectment. There is however one reason why in this case I think this should not now be allowed. The ground proposed to be, established is that of bona fide requirement by the landlord. If the amendment is allowed the issue will be tried under the 1948 Act since 1950 Act applies to the suit only to the limited extent laid down in Section 18 (5). But under the present law if the landlord brings his suit he must establish reasonable requirement, his rights are more restricted under the new Act. I think therefore, that he ought to establish them under the new Act. An additional reason in favour of this view, is that under Section 18 (1) in the case of decrees passed before the 1950 Act came into force, clearly the landlord would not be allowed to agitate fresh grounds to meet the tenant's claim for relief thereunder.

20. The decree of the lower Court is there, fore set aside. Order is hereby passed under Section 14 (1), West Bengal Premises Rent Control Act, 1950, for the defendant to pay rent at Rs. 50 per month from 1st August 1945, up till the date of this order together with interest at 9 3/8 ths per centum per annum, plus costs throughout less the amounts of costs already deposited in the Courts below, which the landlord may withdraw, the aggregate sum being Rs. 3725-13-0. The amount will be paid into this Court on or before 8th June. The case will be put up on 9th June with a report whether the amount has been paid or not, when further order will be passed. The defendant will be at liberty to withdraw the sum of Rs. 400 deposited in the trial Court on account of damages. The defendant will also be at liberty to withdraw the sum of Rs. 2800 out of the total amount deposited with the Rent Controller to the credit of the plaintiff.

21. The amount has been paid in time, the suit is accordingly dismissed under Section 14 (3), West Bengal Premises Rent Control Act, 1950.

22. Leave to appeal under Clause 15 of the Letters Patent is granted.


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