1 This is an appln by the deft under Section 18 (1), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 for an order that the decree passed in this suit be vacated & for leave to pay in arrears of rent within the time to be fixed by the Ct & for other reliefs.
2. The deft was a tenant of the pltf in respect of shop room & a store room at premises No. 114/1, Cotton Street.
3. In August 1949 the pltf instituted this suit for ejectment of the deft from these rooms, for recovery of arrears of rent, taxes, electric charges & for other reliefs. He alleged, firstly that there was default in payment of rent for three consecutive months & therefore the tenancy stood 'ipso facto' terminated & he also alleged that the tenancy as to one room has been forfeited on account of certain breaches of the covenant.
4. The suit was tried before Sarkar J. He held firstly, that there was default in payment of rent for three consecutive months & therefore the tenancy stood 'ipso facto' determined. He also held that no relief could be granted on the basis of forfeiture inasmuch as due notice under Section 114(a), T. P. Act had not been served. On the basis of this finding, on 21-3-1950, his Lordship passed a decree for possession & he also passed a decree for arrears of rent & taxes & for mesne profits & certain directions as to payment of monies deposited by the deft with his attorney, Mr. B.M. Bagaria, was also given. On that very day Mr. Bagaria paid over to the pltf the sum of Rs. 1382/- which was lying deposited with him.
5. On 31-3-1950 the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (which I will refer to as the 'present Act') came into force. On 24-4-1950, this notice of motion was taken out.
6. The matters to be determined on this appln relate mostly to the construction of Section 18 of the Present Act. That section reads as follows:
'18 (1) Where any decree for recovery of possession of any premises has been made 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, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the 'trial Ct' within sixty days of the coming into force of this Act for vacating the decree for ejectment against him & within such period no order for delivery of possession shall be made by any Ct, nor if an appln is made by the tenant under this sub-s till the appln has been dismissed under sub-Section (4).
2. The Ct shall, as early as may be, serve notice of the appln on the landlord & after hearing the parties if the landlord appears, determine the amount of rent which would have been payable by the tenant & would be in arrears if the tenancy continued unbroken up to & including the month in which the order stated hereafter is to be made, & order the tenant to pay the said amount as also the amount of interest on such arrears of rent calculated at the rate of nine & three-eighth per cent per annum together with such costs, if any, as may be adjudged to the landlord, within such time, not later than forty days, from the date of the order, as the Ct may fix.
3. If the tenant pays the said sum within the time fixed, the Ct shall vacate the decree for ejectment with all consequential orders, & the tenancy shall continue as if it never terminated.
4. On failure of the tenant to make the payment within time his appln shall be dismissed with such costs as the Ct may award to the landlord.
5. If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Ct or in Ct 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 Ct shall exercise the powers of granting relief against ejectment given by Section 14 of this Act following the provisions & procedure of that section, as far as may be necessary, & 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.'
Under the section, appln is to be made to the trial Ct. Ordinarily the appln should have been made before Sarkar J. who tried the suit. With the leave of his Lordship & by the consent of the parties I have tried this motion.
7. Counsel for the resp contended that the appln was not maintainable inasmuch as under this section notice of the appln has to be issued by the Ct & that no such notice has been issued. It is true that only a notice of motion has been taken put & no notice has been served by the Ct. It is however the duty of the Ct to serve the notice as required by the Act & therefore I proposed to adjourn the appln in order to enable the Ct to serve the notice. The resp's counsel thereupon expressly abandoned this objection & requested me to proceed with the appln on the footing that the notice as required by the section has been served.
8. An appln for rescission or variation of a decree for possession of any premises passed before the present Act is maintainable only if the following conditions are satisfied: (a) The appct is the tenant against whom a decree for ejectment has been passed, (b) The decree was passed on the ground of default of payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 (which I will hereafter refer to as the 1948 Act), (c) Possession of the premises has not been recovered from the tenant, (d) The appln is made to the trial Ct within sixty days from 31-3-1950 when the present Act came into force.
9. It is not disputed that conditions (c) & (d) have been satisfied in this case. It is how ever disputed that conditions (a) & (b) have been satisfied.
10. It is contended by Mr. A.K. Sen appearing on behalf of the resp decree-holder that the appct is not a tenant within the meaning of this section.
11. Landlord & tenant are defined in Sections 2 (4) & 2 (11) which are as follows:
'2 (4) 'landlord' means any person who for the time being is receiving, the rent of any premises from the tenant thereof & includes any person who is entitled to bring suit for such rent.
2 (11) 'tenant' means any person by whom rent is, or but for a special contract would be, payable for any premises, & includes any person who is liable to be sued by the landlord for rent.'
12. This definition is contrasted with the definition of 'tenant' given in the Calcutta House Rent Control Order, 1943, Section 2 (5), the Calcutta Rent Ordinance 1946, Section 2 (8) & the West Bengal Premises Rent Control Act, 1948, Section 2 (11). In all these Acts the definition of the tenant expressly included a person continuing in possession after the termination of the tenancy in his favour.
13. Mr. A.K. Sen contends that --(a) the narrow definition in the present Act was adopted by the Legislature deliberately & consciously with a view to exclude a person continuing in possession after the termination of the tenancy in his favour; (b) the appct is not liable to pay or to be sued for rent. 'Rent' is a word of technical import & does not include mesne profits. The definition in Section 2 (11) of the present Act connotes a present & continuing liability to pay rent; (c) even if a person whose tenancy has been determined by any of the modes mentioned in Section 111, T. P. Act, is held to be a tenant, the person whose tenancy has been 'ipso facto' determined by virtue of the provisions of Section 12 (3) of the 1948 Act cannot be held to be a tenant. Such person is not a statutory tenant & is a mere trespasser; (d) the vested rights of the resp-landlords cannot be affected except by clear words or by necessary implications.
14. In my judgment the Act must receive neither a strict nor a beneficial construction. It must receive a reasonable construction & the approach of the Ct must be to give a construction which will produce a workable system. The Act is intended to affect the vested rights of the landlord & to give relief to the tenant. The words in the Act must be construed, so far as they reasonably admit, so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved.
15. In my judgment Section 18 of the Act is intended to give relief to persons who are ex-tenants. If a person is still a tenant, he does not need the protection of the Act. He is entitled to continue in occupation by virtue of the tenancy agreement.
16. It is obvious that Sub-sections (1), (2), (3) & (4) of Section 18 was intended to give relief to a person who having been a tenant asked for rescission of the decree for ejectment although he no longer is a tenant at the time when he makes the appln. An ex-tenant or a person whose tenancy has been broken & determined is entitled to move the Ct for relief under the Section. Sub-section (1) shows that this section can be invoked only after the decree for ejectment has already been passed. There can be no decree for ejectment unless the tenancy has been determined. Sub-sections (2) & (3) show that the tenancy has already been broken &/or determined. The Ct is to determine the arrears of rent as if the tenancy continued unbroken after the date of the order to be passed under the section. If the tenant pays the amount which he is directed to pay by the Ct, the decree is to be vacated & the tenancy is to continue as if it never terminated.
17. The phraseology used in the Rent Control Acts are neither exact nor accurate. In such Acts the words 'landlord' & 'tenant' & 'rent' are often used so as to include ex-landlord & ex-tenant & mesne profits payable by ex-tenant. These words are often used in that special & peculiar sense & have no narrow technical meaning. Suits by ex-landlords against ex-tenants are often in such Acts described as suits by landlord against tenant & a decree passed in such suit is often described as a decree passed against a tenant. Indeed they are so described in many sections such as Sections 16 & 18 of the present Act. If a strict meaning is given to these words, these sections would be meaningless. Both the subject & the context show that these words have been used in these sections in that special & peculiar sense.
18. In several Rent Control Acts where a narrow definition of tenant was given the word 'tenant' was construed so as to include ex-tenant. The Calcutta Rent Act, 1920 defined 'tenant' as meaning any person by whom or on whose account rent is payable. The word 'tenant' in that Act was construed so as to include ex-tenant. 'Karnani Industrial Bank v. Satya Niranjan', 55 IA 344: (A I R (15) 1928 P C 227). The same Act was under consideration in 'Bithal Das v. Lal Behari', 25 C WN 967 : (A I R (9) 1922 Cal 391), where Rankin J. summarily rejected the contention that the word 'rent' is used in a narrow technical sense. These cases referred to & relied on, 'Remon v. City of London Real Property Co', (1921) 1 K B 49: (89 L J K B 1105) -- a decision under the Increase of Rent & Mortgage Restriction Act, 1920. A similar construction of the word 'tenant' was given in 'Sukumari Devi v. Rajdhari Pandey : AIR1942Cal49 , where the Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 1940 was under consideration.
19. The contention that the Legislature intended to make a conscious & deliberate departure from the old definition & intended to exclude an ex-tenant, is without substance. If such intention is attributed to the Legislature, working effect cannot be given to the Act & many of these sections would be dead letters. The Legislature may well have thought that the express inclusion of ex-tenants in the definition of the 1948 Act was superfluous & likely to lead to confusion. The definition of landlord in the 1948 Act did not expressly include ex-landlord, yet there is no doubt that the Act used the word 'landlord' to include an ex-landlord. Rent was not defined but there was no doubt that the word was used so as to include mesne profits. The express inclusion of ex-tenants in the definition of 'tenant' & the non-inclusion of ex-landlord & mesne profits in 'landlord' & 'rent' was likely to lead to confusion. In the Calcutta Rent Ordinance, 1946, the definition of tenant was identical with that given in the 1948 Act. A Bench of this Ct was of the view that the express inclusion of ex-tenant in the definition was superfluous. Mitter & Akram, JJ., in the case of 'Keshab Mitter v. Messrs. P. Ghosh', 49 CWN 728 at p. 730: (A I R (33) 1946 Cal 81) observed as follows:
'The word 'tenant' has been used in the Ordinance in a special sense. Even apart from the definition of the word 'tenant' which was introduced by an amendment on 19-5-1944, a person Whose tenancy had expired by efflux of time or whose tenancy had been determined by a notice to quit or on forfeiture or sale would still be regarded as a tenant within the meaning of the Ordinance. The word 'rent' used in sub-paras of (1) & (4) of para 4 & para 10 have therefore a special meaning. It refers to the amount which would have been payable periodically -- by the month, quarter or year as if the tenancy was still continuing.'
20. It is true that a change in language may imply a change of intention. But the presumption of change of intention is not of very great weight in any statute & particularly in statutes of the type under consideration which are notoriously ill-drafted. In this connection I will refer to the observation in Maxwell's Interpretation of Statutes, Edn. 8 at pp. 280 & 282.
'But just as the presumption that the same meaning is intended for the same expression in every part of an Act is, as we have seen, not of much weight, so the presumption of a change of intention from a change of language (of no great weight in the construction of any documents) seems entitled to less weight in the construction of a statute than in any other case, for the variation is sometimes to be accounted for by a mere desire to avoid the repeated use of the same words, sometimes by the circumstance that the Act has been complied from different sources, & sometimes by the alterations & additions from various hands which Acts undergo in their progress through Parliament. Though the statute is the language of the three estates of the realm, it seems legitimate, in construing it to take into consideration that it may have been the production of many minds & that this may better account for any variety of style & phraseology which is found than a desire to convey a different intention.
A change of language effected by the omission in a later statute of words which occur in an earlier one would make no difference in the sense when the omitted words of the earlier enactment were unnecessary.
Even where the omitted words were material to the sense but might be implied, the omission would not, in itself, be considered material, if leading to consequences not likely to be intended.'
Observations to the same effect will appear in Maxwell's 9th Edn. pp. 329, 330.
21. In my judgment the express inclusion of a person continuing in possession after the termination of a tenancy in his favour in the definition of 'tenant' in the 1948 Act was unnecessary & superfluous. The definition of 'tenant' in the present Act in an appropriate case by implication includes ex-tenants. The next question is whether that definition includes tenants whose tenancy was 'ipso facto' determined under Section 12 (3) of the 1948 Act.
22. Lord Atkin in the case of 'Karnani Industrial Bank v. Satya Niranjan Shaw', 55 I A 344: (A I R (15) 1928 PC 227), observed as follows:
'If in fact the Act applies in appropriate cases to an ex-tenant, it cannot make any difference whether the tenancy came to an end by effluxion of time, by act of the landlord, or by act or default of the tenant.'
23. This observation applies with full force to the present case. If in fact Section 18 of the present Act applies to the ex-tenants & includes: tenants whose tenancies have been determined in any of the modes mentioned in Section 111, T. P. Act, I see no reason why it should not include tenants whose tenancy was 'ipso facto' determined by non-payment of rent under the provisions of the 1948 Act. Such person is also an ex-tenant. It is true that such a person is a trespasser on termination of his tenancy but so also are all other tenants whose tenancy had been determined & who were not entitled to the protection of the 1948 Act. Such a person is a person whose tenancy has been determined by his default & in the language of Lord Atkin can be properly described as a tenant under the present Act. The appct is therefore a tenant against whom the decree for ejectment has been passed.
24. I have been referred to a judgment of P. B. Mukharji J. in 'Manick Lal v. Dabiruddin Ahmed', : AIR1951Cal236 . In that case his Lordship was dealing with a case under Section 18 (5) of the present Act. With very great respect, I am constrained to differ from the judgment given in that case is so far as it is in conflict with the observations made by me in this case.
25. Mr. A. K. Sen next contends that a tenant whose tenancy is 'ipso facto' determined is not a statutory tenant. Such a person is outside the pale of the protection of the 1948 Act. When the statute speaks of a ground of eviction, according to Mr. Sen, it speaks of a ground with reference to a statutory tenant & grounds of eviction have no meaning except with reference to a statutory tenant. He has referred me to certain passages in Megarry's Rent Act, Edn. 4, pp. 89, 90, 92 & 95 & 'Brown v. Brash', (1948) 1 All E R 922 at p. 925; 'Oak Property Co. Ltd. v. Chapman', (1947) K B 886 at p. 898: (1947-2 All E R 1) & 'Brown v. Draper', (1944) K B 309 at p. 313: (113 LJKB 196). Mr. Sen contends that the decree in this case was not passed on the ground of default in payment of arrears of rent & therefore the appct is not entitled to any relief.
25. Strictly the language of the section is not appropriate so as to bring within its ambit even the case of a decree which has been passed against the tenant whose tenancy has been determined & who had defaulted in payment. Non-payment of rent is not strictly a ground of ejectment. The grounds of ejectment are what they were before the Rent Control Acts & are provided for in the T. P. Act. No decree for ejectment could be passed unless the tenancy had been duly terminated. Punctual payment of rent is however a good defence & gives protection under the Rent Control Act. Failure to do so is the negation of such defence. Chakravarty J. in the case of 'O. C. Ganguly v. Kamalpat Singh : AIR1947Cal236 & 'Tarak Chandra v. Asoke Prosanna : AIR1947Cal185 , discusses this matter elaborately'. Still, the obvious intention of the Legislature was to include within the ambit of the section the case of a tenant against whom a decree for ejectment would not have been passed but for the fact that he defaulted in payment of rent. This was held in the case of 'Md. Ekramul Huq v. Rebati Bhusan', 53 CWN 859, a decision under Section 9 (b), Calcutta Rent Control Order, 1943. When the Rent Control Act speaks of a ground of eviction, it means the decisive ground or reason for eviction contemplated by the Act but for which a decree for ejectment could not have been passed.
26. A decree for ejectment passed because of default in payment of rent for three consecutive months can however be strictly described as a decree passed on the ground of default in payment of arrears of rent. In such a case there were arrears of rent & there was also default in payment of such arrears for the second & the third consecutive month & thereafter. The default 'ipso facto' determined the tenancy & itself furnished the ground or cause of action for ejectment. Even a notice to quit was not necessary.
27. The special statutes assume here that ordinarily a tenant is protected from eviction. The ordinary protection is lost if one of the grounds specified in the statute is proved. Default in payment of rent for one month was & is one ground for eviction. Default in payment of rent for three months is a more certain ground. In such a case the tenant had not even a 'locus penetentiae'. The penalty for non-payment of rent for three consecutive months was a special feature of the 1948 Act. Still it was a feature of the Act & a grourd for eviction provided for by the Act.
28. Section 11 of the 1948 Act gave to the tenant protection against ejectment. By Sub-section (1) of Section 12 of that Act protection was not available if there was failure to pay rent within the time mentioned. Sub-sections (2) & (3) of Section 12 of that Act provided as follows:
'2. Subject to the provisions of Sub-section (3) no suit or proceeding instituted against a tenant after the commencement of this Act for the recovery of possession of any premises on the ground of default in making any payment or deposit referred to in Sub-section (1) shall be further proceeded with if, within one month from the date of service of process on the tenant, he pays through the Ct all arrears of rent allowable by this Act up to date together with interest thereon at the rate of six & a quarter per cent per annum & such costs as the Ct may award.
3. Notwithstanding anything contained in this Act or in any other law for the time being in force, if a tenant fails for three consecutive months to pay or deposit in accordance with the provisions of this Act any rent payable by him in respect of any premises which has accrued due after the commencement of this Act, the interest of the tenant in such premises shall on such failure be 'ipso facto' determined & he shall no longer be deemed to be a tenant.'
29. In spite of the default in payment of rent in the manner provided for in Sub-section (1) of Section 12 of the 1948 Act, the suit for ejectment of the tenant on the ground of such default had to be stayed if the tenant paid the arrears of rent with interest & costs within a certain time after the institution of the suit. Sub-section (2) however was subject to Sub-section (3) under which failure to pay rent for three consecutive months 'ipso facto' terminated the tenancy. In such a case the suit could not be stayed at all but the suit still remained a suit for ejectment on the ground of default in payment of rent.
30. It is to be noticed that Section 17 of the 1948 Act laid a special procedure for suits for eviction 'inter alia' on the ground of non-compliance with the provisions of the Act as to payment of rent. I have no doubt that that section applied to all suits on such ground whether the non-compliance was for three consecutive months or not.
31. The matter may be looked at from a simpler point of view. The ground on which Sarkar J. passed the decree will appear from his judgment read with the pleadings & the issues. I have no doubt looking at the judgment, the pleadings & the issues, that the real reason & the sole ground on which Sarkar J. passed the decree was default in payment of arrears of rent under the 1948 Act.
32. It follows therefore that the appct is entitled to apply for relief under Section 18. It is my duty to determine the amount of rent which would be payable & would be in arrears if the tenancy continued unbroken up to 2007 & also the amount of the interest on such arrears of rent. It is also my duty to adjudge what if any costs are to be paid to the resp decree-holder.
33. Counsel for both parties inform me that they will agree as to this amount. I will therefore pass final orders day after tomorrow.
34. The tenancy is accordingly to the Hindi calendar. The present monthly tenancy is the month of Jaith 2007. It is agreed by counsel on both sides that the amount of rent which would have been payable by the tenant appct & would be in arrears if the tenancy continued unbroken, up to & including the month of Jaith 2007, taking into account all payments tip to date as also the amount of interest on such arrears of rent, calculated at the rate of 9 3/8 per cent per annum is the sum of Rs. 1,714-2-6. I propose also to award to the pltf the costs of the suit & of the applns made in that suit, & also the costs of this appln & execution proceedings. It is agreed by counsel on both sides that such costs may be assessed at a sum of Rs. 1,300/-. The total sum, therefore, which ought to be paid by the appct tenant to the pltf, is the sum of Rs. 3,014-2-6. I order the appct tenant to pay this sum of Rs. 3,014-2-6 to the pltf's attorney, who will receive this money on behalf of the pltf within two weeks from today. The pltf's attorney will be at liberty to receive this money without prejudice to the right of the pltf to appeal from this order. Upon the undertaking of the appct tenant that he will pay this sum within the time mentioned above, the attachment levied on his goods will stand forthwith released, & the appct tenant will be at liberty to withdraw all moneys deposited by him up to date with the Rent Controller, & the pltf if necessary, will give his consent before the Rent Controller for such withdrawal.
35. If the payment is made as directed by me within the time fixed hereinabove, the decree for ejectment will stand vacated, & the tenancy shall continue as if it never terminated.
36. If the payment is made, the decree against the deft appct for payment of money & also for costs as also all orders for costs made in the suit will stand vacated. This is a consequential order which follows from the payment.
37. In default of the payment being made within the time mentioned above, this appln will stand dismissed with costs.
38. This portion of the order will be incorporated with my previous order & one order will be drawn up.
39. It is agreed that the sum of Rs. 1,300/-is the assessed cost of the suit & of all applns therein after setting off costs payable to either party as also of this appln & of the execution proceedings.
40. This agreement as to the assessment of costs, as also as to the arrears of rent & interest thereon is strictly without prejudice to the right of the pltf to appeal.