1. This Rule arises out of a suit for ejectment filed on 7th May 1946. It was thus filed under the Calcutta House Rent Control Order, before the Calcutta Rent Ordinance came into force, and after the amendment by which Section 9A was inserted in that order on 19th May 1944, and also after the amendment by the insertion of Section 9B was made on 28th August 1945. The grounds for ejectment were (1) default; (ii) waste to the premises (under Section 9-B and (iii)) khas possession (under Section 9C).
2. The learned Munsif held that the suit is maintainable. The tenant defendant has obtain-ed this Rule against his order.
3. Sections 9A and 9B are in substantially identical terms, the former being enacted to require permission of the Controller for institution of suits based on ground under Section 9 (1) (v) (bona fide requirements) and the latter requiring similar permission in the case of suits based on the ground of default. No permission by the Controller had been obtained.
4. We may quote Section 9A (1):
'No suit or proceeding by a landlord against a tenant in possession of a house for eviction of such tenant therefrom in which any of the grounds specified in 1. (c) of the proviso to sub-para. (1) of Para. 9 has been taken as a ground for such eviction shall be entertained by any Court, or, where any such suit or proceeding by a landlord is pending in any Court, on 22nd May 1944. no decree or order for the recovery of possession of the house in respect of which such suit or proceeding is pending shall be made by such Court on any of the grounds specified in the said cl. (c) unless the landlord has been permitted by the Controller by an order in writing under sub-para. (3) to institute such suit or proceeding or to prosecute the suit or proceeding so pending, as the case may be, and has produced before such Court proof that such permission has been granted.'
5. The important words are
'in which any of the grounds specified in cl. (c) of the proviso to sub-para, (1) of para. 9 has been taken as a ground for such eviction shall be entertained by any Court.. . . .'
Section 9B contains very similar words with suitable adjustments to refer to the case of default.
6. In this case then, the suit was one in which both the grounds in cl. (c) of the proviso to sub-para. (1) of Para. 9 were taken as 'a ground for eviction' and the ground of default was also taken as 'ground for such eviction.' On the plain reading of the section, the suit could not be entertained.
7. It is true, there was yet a third ground and it is urged that the section should be interpreted merely to mean that the suit might proceed on that third ground for which no permission was necessary. In the case of Jyotindra Nath v. Sm. Tara Dassi Ghose, : AIR1950Cal213 , where the facts were similar to those in the present case, I accepted this latter contention. But I am clearly of opinion that on that occasion there was an error, and I overlooked the precise and clear wording of Section 9A. My sympathies are with the plaintiff who has wasted years in this litigation, but I find, on considering the exact wording of the section, that quite impossible it is to say that another interpretation can be given to the words used than that if a suit is brought on several grounds and one of the grounds is 'a ground' which requires the permission of the Controller, then the whole suit cannot be entertained. Had the provisions of the section been followed in the first place, all the troubles of the plaintiff would have been avoided. But the mere fact that this was not done cannot make us now give an interpretation to the section which it cannot possibly bear.
8. In the case cited I agreed with the view expressed in the case of Tarini Gupta v. Manmatha Nath,53 C.W.N. 855: (A.I.R. (36) 1949 Cal. 674). The fact that the case, as it were, survived and was contested and dealt with under first the Ordinance and then later the Act of 1948 cannot get over the initial defect that at the time it was filed it could not be entertained. Subsequent enactments could not have the effect of curing this initial defect. That view I still think is correct.
9. The result is that the Rule must be made absolute and the plaint in the suit will be return-ed under Order 7, Rule 11, Civil P. C. I make no order as to costs.