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Jyotindra Nath Mitra Vs. Sourindranath Dutta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 654 of 1950
Judge
Reported inAIR1951Cal422,55CWN123
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 14(1) and 14(4); ;Transfer of Property Act; ;Rent Control Act, 1948
AppellantJyotindra Nath Mitra
RespondentSourindranath Dutta
Appellant AdvocateHemendra Chandra Sen and ;Sachindra Chandra Das Gupta, Advs.
Respondent AdvocateRabindra Nath Mitra, Adv.
Excerpt:
- .....alipore, giving certain directions to the tenant deft. purporting to be under section 14 (4), west bengal premises rent control (temporary provisions) act, 1950.2. the facts briefly are as follows: the landlord opposite party instituted a suit for ejectment on the ground that he had terminated the tenancy by a valid notice to quit. he sought to remove the bar against obtaining a decree for ejectment provided by the west bengal premises rent control (temporary provisions) act, 1948, by asserting that he required the premises bona fide for his own use & occupation. in other words, he sought to remove the protection which the tenant was granted by the west bengal premises rent control (temporary provisions) act, 1948, against ejectment by relying upon proviso (f) of section 11 of the.....
Judgment:

Sen, J.

1. This Rule was obtained by the tenant deft. against an order passed by the learned Subordinate Judge, 6th Ct. of Alipore, giving certain directions to the tenant deft. purporting to be under Section 14 (4), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

2. The facts briefly are as follows: The landlord opposite party instituted a suit for ejectment on the ground that he had terminated the tenancy by a valid notice to quit. He sought to remove the bar against obtaining a decree for ejectment provided by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, by asserting that he required the premises bona fide for his own use & occupation. In other words, he sought to remove the protection which the tenant was granted by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, against ejectment by relying upon proviso (f) of Section 11 of the aforesaid Act. The aforesaid Act was repealed by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. After the Act of 1950 came into force the landlord made an appln. under Section 14 (4) of that Act praying that the tenant deft. should deposit month by month rent at the rate at which it was last paid & also arrears of rent within a certain time. The learned Subordinate Judge, gave effect to this appln. & the tenant has obtained this Rule against his order.

3. Mr. Sen appearing in support of this Rule has placed several arguments before us which, we are bound to say, are not without some weight, but after giving them the consideration they undoubtedly deserve we are unable to accept them. His first point was that Sub-section (4) of Section 14 of the Act of 1950 had no application to a suit in which the landlord sought to prevent the tenant from getting protection from ejectment on the ground of a bona fide requirement of the premises for the landlord's own use & occupation. His contention is that the whole of Section 14 including Sub-section (4) is applicable only to a suit for ejectment where the landlord relied upon default of payment of rent by the tenant as preventing the tenant from availing himself of the protection from ejectment granted by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 or by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. In order to establish this contention he draws our attention to the first few lines of Section 14 (1) which are as follows :

'If in a suit for recovery of possession of any premises from the tenant the landlord would not get a decree for possession but for Clause (i) of the Proviso to Sub-section (1)of Section 12, etc.'

He then draws our attention to the first few lines of Section 14 (4) which are as follows :

'If the tenant contests the suit, as regards claim for ejectment, the pltf. landlord may make an appln. at any stage of the suit for order on the tenant deft. to deposit month by month rent at a rate at which it was last paid & also the arrears of rent, if any, & the Ct. after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month & the arrears of rent, if any,.....'

He contends that the use of the words 'the suit' in Sub-section (4) can have only one meaning & that is that Sub-section (4) has application only to that type of suit which is mentioned in Sub-section (1). He stresses greatly on the use of the definite article 'the' in Sub-section (4). In our opinion, this contention cannot be accepted. In Sub-section (1) the nature of the suit is clearly mentioned. It is a suit for the recovery of possession of any premises from the tenant in which the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 12; that is to say, a suit in which the landlord could not have got a decree for possession unless the tenant had defaulted in the payment of rent. The extent of Sub-section (1) of Section 14 is clearly defined. We find no such restrictive words in Sub-section (4). Sub-section (4) deals with a suit for ejectment without any qualification. The use of the word 'the' does not necessarily restrict Sub-section (4) to suits of the nature described in Sub-section (1). The word 'the' is used because of the following words 'as regards claim for ejectment'. It seems to us that what Sub-section (4) means is this: If in a suit instituted by the landlord against the tenant for ejectment & other reliefs the tenant contests the claim for ejectment the pltf. landlord may make the appln. mentioned in that sub-section. If Sub-section (4) related only to the suits mentioned in Sub-section. (1) one would have expected the use of the words 'such suit'. It is clear from the words in Sub-section (4), viz. 'If the tenant contests the suit, as regards claim for ejectment' that the suit contemplated in Sub-section (4) means a suit in which it is open to the tenant to contest other claims also made by the landlord ; that is to say, it contemplates a suit not only containing a claim for ejectment but other claims as well & it says that if the tenant resisted the claim for ejectment, he may on the appln. of the landlord be directed to make certain deposits. Obviously the sub-section was intended to protect the landlord from being left without any profit from the premises for a period during which the suit was pending--a period which any one, with experience of these Cts. knows may be a very long one.

4. Again it seems to us that Sub-section (4) of Section 14 cannot be limited to the suits described in Sub-section (1) because there are certain words used in Sub-section (4) which indicate a contrary meaning. We refer to the words ' and also the arrears of rent, if any,' The words ' if any ' would not have been used if Sub-section (4) were confined to suits described in Sub-section (1) because the suits mentioned in Sub-section. (1) are based on default of payment of rent. If there are no arrears of rent a suit of the kind mentioned in Sub-section (1) would not lie. Sub-section (4) contemplates suits where there may be no arrears at all. Thus Sub-section (4) relates to suits for ejectment where the tenant has not defaulted in payment of rent, that is to suits other than those of the type mentioned in Sub-section (1).

5. The last contention of Mr. Sen is that Section 14, Sub-section (4) has no retrospective effect & as this suit had been instituted before the Act of 1950 came into force, the landlord could not take advantage of the provisions of Sub-section (4). We think that there is a fallacy in this contention. Mr. Sen seems to be of the opinion that this suit has been instituted under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. In our opinion this is not correct. The suit was instituted under the Transfer of Property Act for ejectment on the ground that the tenancy had been terminated. It was not instituted under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. That Act does not empower any person to institute a suit for ejectment. That right is given by the Transfer of Property Act. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 as also the Act of 1950 merely place certain bars against the landlord obtaining a decree for ejectment; that bar was placed by Section 11 of the Act of 1948. The proviso to Section 11 laid down certain conditions in which the bar would not be of effect, but the right to get ejectment is a right which is given by the Transfer of Property Act & not by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 or 1950. The question of retrospective effect, therefore, does not arise in this case. The suit was instituted under the Transfer of Property Act which is still in force & while the suit was pending the landlord was given certain privileges by the Act of 1950. There is no law so far as we know which would prevent the landlord from seeking & obtaining these privileges granted to him by the Act of 1950 if the conditions of the Act are satisfied. This disposes of the last argument of Mr. Sen.

6. The result, therefore, is that we discharge this Rule & uphold that order passed by the learned Subordinate Judge.

7. The amount directed to be paid together with the arrears up to 31-10-1950 shall be deposited in the Ct. below within one week after the re-opening of the civil Cts. If the amounts mentioned above are not put in with in the date fixed, the defence as regards the claim for ejectment shall be struck out. The opposite party will be at liberty to apply to the Ct. below for permission to withdraw the amount if deposited & the Ct. shall pass such order as it deems proper.

8. Each party will bear his own costs in this Rule. Let the record be sent down immediately.

Chancier, J.

9. I agree.


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