G.N. Das, J.
1. This Rule was obtained by the plaintiff landlord and is directed against an order dated 17-6-1950 passed by Sri S. K. Roy learned Judge, 6th Bench of the Court of Small Causes, Calcutta.
2. The facts are as follows: The defendant opposite party was a tenant from month to month under the petitioner in respect of a shop-room on the ground floor of 32, Sir Hariram Goenka Street, Calcutta at a rent of Rs. 25/- per month. The petitioner instituted on 16-12-1949 a proceeding under Chapter VII of the Presidency Small Cause Courts Act, on the ground that the opposite party had defaulted in payment of rent for 3 consecutive months viz., December 1948, January 1949 and February 1949 and that the tenancy had ipso facto determined. The proceedings ended on 31-3-1950 in an ex parte order for possession.
3. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force on 31-3-1950. On 30-5-1950, the opposite party filed an application under Section 18(1) of the said 1950 Act. On 17-6-1950, the application was allowed by Sri S. K. Roy the learned Judge, 6th Bench. The petitioner moved this Court and obtained the present rule on 20-11-1950.
4. On 30-11-1950, Section 18(1) of the said 1950 Act was amended by West Bengal Act, 62 of 1950. The amending Act provides that the expression:
'on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of sub-section 3 of Section 12'
be substituted for the expression:
'on the ground of default in payment of arrear of rent under the provisions.'
Section. 5 of the Amending Act further provides that the said amendment shall apply to all applications under Section 18(1) and all suits pending at the date of commencement of the Act and shall be deemed to have always so applied.
5. The question whether the Rent Control Acts are void of the Constitution was answered in the negative by the decision in 'ISWARI PRASAD v. N. R. SEN', Civil Revn. Cases Nos. 1369 and 1370 of 1950: : AIR1952Cal273 (FB) the judgment whereof was just now delivered.
6. The question whether the expression 'decree for recovery of possession' includes an order for possession under Chapter VII of the Presidency Small Cause Courts Act was answer-ed in the affirmative by the said judgment.
7. Mr. Sett, learned Counsel for the petitioner, has contended that the order of the 6th Bench is opposed to the decision in 'SM. NANDORANI DASSI v. SATYA NARAIN', 54 Cal W N 735, and should be set aside. He has accordingly submitted that as the opposite party has not made an application for relief under the amended Act, the application under Section 18(1) should be dismissed.
8. This argument proceeds on a misconception. The effect of the rule obtained by the petitioner is to render the application under Section 18(1) filed by the opposite party sub judice and to call for an adjudication by the Court. This Court has therefore, to finally dispose of the application now. The effect of the amending Act, 62 of 1950 is that the amendments made by the Act will apply retrospectively to the said application.
9. The amending Act confers on the Court power to set aside decrees for ejectment passed under Chapter VII of the Presidency Small Cause Courts Act on the ground of ipso facto determination of the tenancy. The contention of Mr. Sett therefore fails.
10. Mr. Sett further contended that Section 18 of the 1950 Act speaks of an application by the tenant, that the tenancy of the opposite party having ipso facto determined, the opposite party is no longer a tenant and the application is not maintainable by him.
11. The above contention also fails because Section 2(11) of Act LXII of 1950 which is expressly made retrospective defines a tenant to include any person whose interest in the premises has been ipso facto determined under subsection 3 of Section 12 of West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.
12. The application under Section 18(1) of the 1950 Act must therefore be allowed, though for reasons which have become available to the opposite party, since the issue of the rule.
13. In view of the fact that the order complained of in this petition was an erroneous order according to the law then in force, I am of opinion that the parties should bear their own costs.
14. The result therefore, is that this Rule is discharged but without costs.
15. I agree.
16. I agree.