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Panchanan Chakravarti Vs. Harisatya Bhattacharyya and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Case NumberCivil Rule No. 845 of 1949
Judge
Reported inAIR1950Cal529,54CWN610
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Sections 12(1) and 18; ;Code of Civil Procedure (CPC)
AppellantPanchanan Chakravarti
RespondentHarisatya Bhattacharyya and anr.
Appellant AdvocateRanjit Kumar Banerjee and ;Jnanendra Mohan De, Advs.
Respondent AdvocateHemendra Chandra Sen and ;Dwijendra Nath Das, Advs.
Cases Referred and Bepin Behary Dey v. Girindra Kumar Kar
Excerpt:
- .....they were not deposited in accordance with law the landlord had appropriated any portion of the rent deposited, such rent as had been appropriated must be held to be not in arrears. 10. it is necessary therefore that this case should be remanded to the court below for a decision in accordance with law after giving both parties an opportunity to adduce evidence whether any rent for the period--september 1947 to july 1948--was in arrears on 7th september 1948. if no such amount was in arrears the decree for ejectment should be rescinded on such terms as regards payment of rent for the subsequent period as the court may think fit. if any such amount was in arrears the application under section 18 should be rejected, as there is no case made that any such amount if in arrears, have been.....
Judgment:

Das Gupta, J.

1. The question in this case is whether the petitioner is entitled to have the benefit of Section 18, West Bengal Premises Rent Control Act, 1948, for the purpose of rescission or variation of a decree for ejectment passed against him in Title Suit No. 125 of 1948 in the Court of the Additional Munsif, Howrah. The petitioner was a tenant under the opposite party with respect to a portion of holding no. 6, Kailash Basu 4th Bye Lane, Ramkrishnapur, at a monthly rental of Rs. 15-8-0 only. The suit for ejectment was instituted on 20th September 1947 on the allegation that the tenancy had been terminated by a notice to quit served in accordance with law. There was also a claim for Rs. 10 8 0 said to be the outstanding due on account of rent and a claim for mesne profits. It was said that the tenant had defaulted in payment of rent prior to the date of suit and so was not entitled to get the benefit of the Calcutta Rent Ordinance, 1946, which was then in force. The Court accepted the story of default, found that the tenancy had been properly terminated and gave the plaintiff a decree for ejectment of the defendant petitioner. The decree was passed on 7th September 1948. On 22nd December 1948, the petitioner filed an application before the Court praying foe a rescission of the decree for ejectment. It was stated therein that during the pendency of the suit the petitioner had been regularly depositing the due rent every month in the Bent Controller's Court in accordance with the provisions of law and that in fact, rent due up to the month of October 1948 had been deposited in the Rent Controller's Court. It was further stated that the rent for the month of November 1948 and for the month of December up to the date of petition together with costs had also been put in by him on that date, namely 22nd December 1948. He claimed that this was a sufficient compliance with the provisions of Section 12 (1)(b), West Bengal Premises Rent Control Act and so in view of the provisions of Section 18 of the Act he was liable to have the decree rescinded.

2. In the objection which was filed by the present opposite party it was merely stated that the petitioner was not entitled to have the decree rescinded; but nothing was said about the petitioner's statement in the petition as regards the deposit of rent in accordance with law in the Bent Controller's Court up to the month of October 1918.

3. The learned Munsiff dismissed this application on two grounds. His first ground was that the deposit had not been made in accordance with law inasmuch as it had been made in Court which is not provided for in the Act. His second ground was that in any case there could not be any application of Section 18 of the Act to the facts of this case inasmuch as 'the post-Act deposit cannot have any retrospective effect so as to relate back and undo the pre-Act defaulting status and cure this initial vice of default which has in fact been adjudged by the Court and consequent on which the decree in question had to be passed.'

4. The difficulties which arise in the application of Section 18, West Bengal Premises Rent Control Act 1948 have been considered in several oases by this Court. Vide Federation Bank of India Ltd. v. Hanutmal Boid, A. F. O. O. No. 36 of 1949: (64 C. W. N. 604), Sm. Nagendra Bala Hore v. Dakshina Kali Mata, Civil Revn. No. 277 of 1949 : AIR1950Cal503 Sachindra Biswas v. Phanindra Nath Bagchi, Civil Revn. no. 708 of 1949 and Bepin Behary Dey v. Girindra Kumar Kar, Civil Revn no. 1066 of 1949. In all these cases it was held that the deposit of arrears due, within one month from 1st December 1948, cannot be considered to be compliance with the provisions of Section 12 (1) (b) requiring a deposit of arrears within a month from the date of the commencement of the Act if and when, for getting the benefit of Section 18 the Court has to make the assumption that the Act was in force on the date before 1st December 1948 on which the decree was passed. It was pointed out that once the assumption is made, as has to be made before any benefit under Section 18 of the Act can be given, that the Act was in force on the previous date on which the decree was passed, it is necessarily to be assumed that for the purpose of considering Section 13 (1) (b) of the Act, that the Act commenced at least on the date on which the decree was passed and consequently before the requirements of Section 12 (1) (b) of deposit could be satisfied the deposits had to be made within a month from this assumed date of commencement of the Act, in other words, within one month from the date of the decree. In all the above cases arrears were admittedly outstanding and they were put in not within a month from the date of the decree but within a month from 1st December 1948. The argument that for the purpose of seeing whether the requirements of Section 12 (1) (b) had been complied with, the date of the commencement of the Act should be taken to be 1st December 1948, though at the same time the Court would have to assume that the Act was in operation on the date on which the decree was actually passed, was negatived.

5. I feel myself bound by the decisions and I respectfully agree with them. The question whether there has been a proper compliance with the requirements of Section 12 (1) (b) of the Act which could have stood in the way of the Court passing a decree for ejectment if the assumption had been made that the Act was in force on the date the decree was actually passed cannot however arise if there are, in fact, no arrears outstanding on the date of the decree. If there are no such arrears, the difficulty in the way of the tenant that he cannot be entitled to the benefit of Section 11 unless he has deposited arrears within a certain time does not arise. In the present case if the statement made by the petitioner in the application under Section 18 of the Act is correct, then obviously there were no arrears on 7th September 1948 when the decree was passed. It may be mentioned here that on the date the suit was filed there was clearly no amount in arrears. The plaintiff himself stated in the plaint that the rent for August 1947 and from the 1st to 19th September 1948 had not been paid, but admitted that out of that amount Rs. 15-8-0 bad been deposited and he claimed Rs. 10-8-0 only as the amount in arrears. It was contended by Mr. Sen before us that in fact the amount in deposit had not been withdrawn by his client. I fail to see how, when by his statement the plaintiff gives credit to the tenant for the sum of Rs. 15-8-0 said to have been deposited in the Rent Controller's Court, it can still be said that this amount was in arrears. He had clearly appropriated this amount and the only amount which according to him remained due was the amount of Rs. 10-8-0. But as that was for the part of the month of September 1947 and the rent for that month would not become an arrear until 15th October 1947 in the absence of any contract to the contrary which has not been established in this case. I have no hesitation in coming to the conclusion that on the date the suit was instituted no amount was in arrears.

6. The question for consideration here however is not whether any amount was in arrears at the date the suit was filed but whether any amount was in arrears 'before the commencement of the Act', that is, before 7th September 1948 which for the purpose of Section 18 should, in my opinion, be assumed in this case to be the date of the commencement of the Act. All Acts have ordinarily only prospective operation and they can have retrospective operation only when there is special provision for that. The result of the provisions of Section 18 would be that in considering an application under Section 18 the Court would have to consider that the Act was in force on the date the decree was passed which in the present case is on 7th September 1949. There is no justification for carrying the Act further back in the present case and consequently the Act must be considered to have commenced on 7th September 1948.

7. As already stated the petitioner's case is that all rents up to October 1948 had been paid by him by deposit in the Rent Controller's Court. The mere fact that they had been deposited would not however prevent these amounts being in arrears. If they have been deposited in accordance with law or, even if not deposited in accordance with law, such amount has been appropriated by the landlord, then and then only, it has to be held that no amount was in arrears.

8. The matter was not approached in the Court below from this point of view. What was considered there was whether the amounts for November and December 1948 had been deposited in accordance with law. It was not understood that what the Court had to consider in the circumstances of this case under Section 18 was whether on 7th September 1948 there were any arrears and whether those arrears had been deposited in accordance with law, and that the Court was not concerned with the question of the arrears for October or November or December 1948, in deciding whether relief under Section 18 could be given.

9. As I have stated, it must be held that no amount was in arrears on the date the suit was filed. Before a proper decision can be made of the application under Section 18 it is therefore necessary to ascertain whether there were any arrears on 7th September 1948 with regard to the rent for the period--September 1947 to July 1948. If the rent for these months had been deposited in accordance with law then in force, that is the Calcutta Rent Ordinance, 1946, this would not be in arrears. Again, if even though they were not deposited in accordance with law the landlord had appropriated any portion of the rent deposited, such rent as had been appropriated must be held to be not in arrears.

10. It is necessary therefore that this case should be remanded to the Court below for a decision in accordance with law after giving both parties an opportunity to adduce evidence whether any rent for the period--September 1947 to July 1948--was in arrears on 7th September 1948. If no such amount was in arrears the decree for ejectment should be rescinded on such terms as regards payment of rent for the subsequent period as the Court may think fit. If any such amount was in arrears the application under Section 18 should be rejected, as there is no case made that any such amount if in arrears, have been paid within a month from 7th September 1948. I would therefore set aside the order passed by the learned Subordinate Judge and remand the case for disposal in accordance with the above direction.

11. The Rule is disposed of in these terms. There will be no order as to costs.

G.N. Das J.

I agree.


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