R.C. Mitter, J.
1. It is rather unfortunate that the opposite party is not represented at the hearing, for this rule raises a question of first impression, and I am told that it is a first ease falling under Bengal Act 9 of 1940, The Bengal Non-agricultural Tenancy, (Temporary Provisions) Act. The facts are as follows:
The opposite party was a monthly tenant under the petitioners holding four cottas of land at a rent of Rs. 3, a month in the suburbs of Calcutta. The plaintiffs' ease is that he has not paid any rent since Baisakh 1348 B.S. Before the Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 1940, was passed the petitioners served a notice to quit on the opposite party requiring him to vacate with the expiry of the month of Ashar 1346. The opposite party not having vacated, this suit was filed on the 10th of February 1940. The prayers in the suit were (1) for recovery of rent for the three years which had not been barred by limitation, (2) for ejectment, and (3) mesne profits from Sravan 1346 till restoration of possession.
2. In the plaint the petitioners recited the fact that the tenant was in arrears for a long period. They did not, however, expressly state that they wanted ejectment on account of non-payment of rent. In fact, as the law now stands non-payment of rent is not even a ground for ejectment of a non-agricultural tenant. The question is whether this case comes within the provisions of Section 3 of the said Act, namely Act 9 of 1940. That section provides thus:
Notwithstanding anything contained in any other law for the time being in force every suit and proceeding in any Court for ejectment of a non-agricultural tenant other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force.
3. The proviso to the section states that a decree for ejectment on account of the nonpayment of rent by such tenant shall be stayed if, within thirty days from the date of the decree, such tenant deposits into Court the amount of the decree together with costs of the proceeding. This section, therefore, makes a distinction between suits for ejectment on account of the non-payment of rent and other suits for ejectment. A suit for ejectment falling within the second class has to be stayed for the period during which Act 9 of 1940 would be in force. A suit falling within the first class would go on and a decree will have to be passed, but if the decree be for ejectment its execution is to be stayed if the tenant deposits in Court the amount of the rent due under the decree and costs. This seems to me to be the plain intention of the Legislature. But the difficulty is created by reason of the use of the words 'ejectment on account of the nonpayment of rent.' As I have already pointed out, in the case of a non-agricultural tenant non-payment of rent, as the law now stands, cannot be a ground for ejectment. To take an illustration, if a tenant coming within the provisions of Act 9 of 1940 holds under a registered lease for a term of years and if he fails to pay rent, or even an habitual defaulter in the payment of rent, he cannot be ejected during the term on the ground of nonpayment of rent. The words, 'on account of the non-payment of rent' must however he given some meaning. That being the position so far as the substantive law is concerned in the case of non-agricultural tenants, to my mind it seems that the words 'on account of the non-payment of rent' are not used for purposes of indicating that the cause of action for ejectment must be the non-payment of rent. But some meaning must be given to those words 'on account of the non-payment of rent.' To my mind, it seems that the Legislature meant that if a tenant was in arrears, a suit for ejecting such a tenant would be a suit for ejectment 'on account of the non-payment of rent.' In this view of the matter, it is not necessary' for me to express any opinion on the question as to whether Act 9 of 1940 was ultra vires of the Bengal Legislature. In fact that point has not been argued as Mr. Banerjee said that he would not argue that point unless I take the view against him on the interpretation of Section 3. As the view that I have taken of the said section is in favour of his contention I did not ask him to enter into the question of ultra vires. The plaint in this suit must be regarded as a suit for ejectment on account of the non-payment of rent. I, therefore, direct the learned Munsif to proceed on with the suit, and to try it on its merits. The rule is accordingly made absolute. As there is no appearance on the other side, there would be no order for costs. Let the records be sent down without delay.