1. This is an appeal against a decree of the District Judge, Hooghly, affirming the decree of the Munsif, 1st Court, Hooghly in a suit for arrears of rent and ejectment.
2. The premises forming the tenancy are two rooms on the ground floor of a house, the upper portion of which was occupied by the plaintiff. Notice to quit was given alleging bona fide requirement. Permission of the Controller was taken for bringing a suit Under Section 13, Calcutta Rent Ordinance, and both the lower Courts have found as a fact that the two rooms in question are bona fide required by the plaintiff. They have also found that there were arrears of rent due at the time of the suit and a decree has been given accordingly. The trial Court gave the defendant some option in the matter of payment of the arrears due, by which the date of delivery of possession might be postponed for a period.
3. When the appeal was filed here the principal ground taken was that the lower Courts were in error in finding that this was a case of bona fide requirement and that they were wrong in finding that the permission of the Rent Controller on this ground was properly given. In the meantime, however, the Ordinance has been replaced by the West Bengal Premises Rent Control Act, 1948, and now by the similar named Act of 1950. The question then arises as to the interpretation of Section 18 of the latter Act in regard to the present second appeal.
4. Under the earlier Rent Control legislation where the Courts were given power to rescind, vary and modify the decrees passed prior to the particular legislative Act coming into force; it had been held that this was a power given to the trial Court and the appellate Court had no part in exercising the power. Under Section 18 of the latest Act, a specific provision has been made under Sub-section (5) for this Court in second appeal to take action in certain cases. Harping back to some decisions relating to Bengal Non-Agricultural Tenancies it was faintly urged that the present appeal is not covered by the provisions of Sub-section (5) of Section 18 but in my opinion the decisions relating to those other Acts serve no useful purpose in considering the terms of Section 18. Clause (5) runs thus:
'If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in a trial Court or in a Court of first or second appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Court shall exercise the powers of granting relief against ejectment given by Section 14 of this Act following the provisions and procedure of that section as far as may be necessary, and for the said purpose shall make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just.'
5. In my opinion, the present is certainly a suit for ejectment pending in a second appeal. The only question then is whether it is one in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent etc. In view of the clear findings of both the Courts below and in view of the fact that the notice for termination of the tenancy mentioned bona fide requirement and the Controller's permission was taken for a suit on that ground, it is beyond question, in my opinion, clear that this is not a case in which no decree would be passed except on the ground of default in payment of arrears of rent. It is true that there were arrears of rent and throughout the proceedings there apparently was no real dispute on this question. Nevertheless, the ground that the landlady required the premises bona fide for her own use as provided in Section 12 (1) (d), Calcutta Rent Ordinance was prominently put forward throughout the proceedings, was contested and was clearly decided against the tenant. Clearly, therefore, this is not a case where the tenant can get any benefit from the provisions of Section 18 of the latest Act.
6. Apart from the question of applicability of Section 18 and the question whether relief under that section might be given or not, the only other question argued before me is that the lower appellate Court has held that the tenancy is only for two rooms and that the notice is good in so far as it only refers to the two rooms on the ground floor and that the decree can only be effective in respect of those two rooms. The contention put forward before the lower appellate Court was in fact that the tenancy really consisted of the two rooms, a cowshed and another shed, (which the defendant had alleged he had erected at his own cost, but the lower Courts found that this shed had in fact been erected at the cost of the landlady). The learned District Judge met this contention that the notice was bad as it was only for partial ejectment by finding that the tenancy consisted of the two rooms only. The judgment of the trial Court in making the order merely refers to the 'house.' The contention must be accepted to the extent of making it clear that the 'house' in the decree consists of the two rooms on the ground floor.
7. With this slight modification, the appeal is dismissed with costs.
8. The order for stay passed in the connected Rule is vacated.