G.N. Das, J.
1. This rule was obtained by the landlord and is directed against an order dated 19-6-1950 and passed by Sri S. C. Biswas learned Judge 3rd Bench of the Court of Small Causes, Calcutta.
2. The facts are as follows: In July 1948, while Rent Ordinance V of 1946, was in force, the petitioner initiated proceedings under Chap. VI of the Presidency Small Cause Courts Act inter alia on the allegation that rent of the tenancy held by the opposite party was in arrears for 17 months, and that permission was duly taken from the Rent Controller. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 came into force on 1-12-1948). On 1-6-1949 an order for possession was made by the trial Judge. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force on 31-3-1950. Thereafter on 21-4-1950, the opposite party filed an application under Section 18 (1) of the 1950 Act. On 19-6-1950, the learned Judge 3rd Bench vacated the order for possession and accepted the deposit made by the opposite party as sufficient and valid. It is the propriety of this order which is challenged in this revision case.
3. Mr. Gupta learned counsel for the petitioner has not disputed that the expression 'decree for possession' in Section 18 (1) includes an order for possession under Chapter VII of the Presidency Small Cause Courts Act.
4. The above question and the question whether the Rent Control Acts are void of the Constitution Act have been decided in 'Civil Revn. Nos. 1369 and 1370 of 1950', : AIR1952Cal273 the judgment wherein was just now delivered.
5. Mr. Gupta has however contended that] the default in payment of rent for which the proceedings under Chapter VII were started was a default in payment of rent prior to the 1948 Act, and as such the application was not maintainable. This contention is correct. The suit was filed when the 1946 Ordinance was in force. In this view, Section 18 (1) of the 1950 Act has no operation. Moreover, Section 18 (1) of the 1950 Act, as it now stands, after the amending Act 62 of 1950, entitles the Court to give relief when the tenancy had ipso facto determined under Section 12 (3) of the 1948 Act. The 1948 Act was passed after the institution of the proceedings under Chapter VII and it is therefore, impossible to say that the proceedings had been instituted on the ground of ipso facto determination of the tenancy under Section 12 (3) of the 1948 Act.
6. The application under Section 18(1) of the 1950 Act filed by the opposite party is accordingly not maintainable. The order complained of must therefore be set aside and the application filed by the opposite party under Section 18 (1) of the 1950 Act dismissed.
7. This rule is made absolute but as the opposite party has not appeared, there will be no order for costs.
8. I agree.
9. I agree.