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i.J. Cohen Vs. S.E. Hottinger - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal380,69Ind.Cas.988
Appellanti.J. Cohen
RespondentS.E. Hottinger
Excerpt:
calcutta bent act (iii b.c. of 1920), sections 2 sub-section (1) 11 - monthly tenant paying insufficient sum to bent controller--section 11, application of. - .....a suit for eviction in the small cause court. in the meantime proceedings were pending before the rent controller for the fixing of the standard rent. there was a contest about what the standard rent should be, and it has bean ultimately determined as rs. 77.4. when the case came on for hearing before the learned judge of the small cause court, he found the facts thus : he says that the rant in november was rs. 65 and not rs. 55, and if you add 10 per cent. on to that, the sum of rs. 60 8, per month, which the defend-ant paid to the rent controller, was not enough to meet the standard rent which comes to rs. 71-8. that being so, he says that under the statute, the tenant was not a parson who is entitled to the benefits of the provisions in section 11 prohibiting an ejectment. in my.....
Judgment:

Rankin, J.

1. In this case I am sorry for Mr. Hottinger. I am afraid it is quite impossible for me to do anything to assist him and I am brand to say that his difficulties are due to the rather reckless method in which he has managed this part of his affairs. He was a tenant under an agreement for a year to Mr. Cohen before the Rent Act came into force, and in May 1920, that period had expired, and be was holding over as a monthly tenant upon the terms of the original agreement. The terms of the original agreement are, rent at Rs. 70, payable, as I understand, in advance on the 1st day of each month.

2. The Rent Act came into force on the 5th May 1920 and Mr. Hottinger appears to have paid the contractual rent in fall for the month of May. After that he made up his mind to pay the amount of rent allowable under the Rent Act and no more. Prima facie under the Rant Act [see Section 2(1)] the amount of rent allowed would be the amount that was paid for the premises on the 1st day of November 1918 plus 10 per cent. He made enquiries and he was of opinion that the amount was only Rs. 55 and he proceeded to pay into the hands of the Kent Controller certain sums of money amounting to Rs. 60-8 each month. He sent this on the 7th August in respect of the month of July, on the 6th September in respect of the month of August, on the 13th October in respect of the month of September, on the 8th November in respect of October 1920.

3. The landlord, Mr. Cohen, on the 13th August gave him notice to vacate on the 30th September 1920 and on the 6th October 1920 instituted a suit for eviction in the Small Cause Court. In the meantime proceedings were pending before the Rent Controller for the fixing of the standard rent. There was a contest about what the standard rent should be, and it has bean ultimately determined as Rs. 77.

4. When the case came on for hearing before the learned Judge of the Small Cause Court, he found the facts thus : he says that the rant in November was Rs. 65 and not Rs. 55, and if you add 10 per cent. on to that, the sum of Rs. 60 8, per month, which the defend-ant paid to the Rent Controller, was not enough to meet the standard rent which comes to Rs. 71-8. That being so, he says that under the Statute, the tenant was not a parson who is entitled to the benefits of the provisions in Section 11 prohibiting an ejectment. In my opinion, the learned Judge of the Small Cause Court, whose judgment has been described as perverse, was entirely right. I am not concerned as regards the findings of fact, but as regard a the finding in point of law, I can see no reason at all to quarrel with it.

5. In this case one has to remember that the Statute gives to a mere monthly tenant considerable fixity of tenure upon a condition, namely, that ha is a rent-paying tenant and not a defaulting tenant. It says that 'no order or decree for the recovery of possession shall be made so long as the tenant pays rent to the full extent allowable by this Act and performs the conditions of the tenancy,' and then further it says that no tenant shall be entitled to the benefits of this section, 'unless he pays the rent due by him to the full extent allowable by this Act within the time fixed in the contract with his landlord, or, in the absence of any such contract by the 15th day of the month next following.' With that section in front of me, it appears to me that the learned Judge of the Small Cause Court could do no other than he did.

6. It is said, first of all, that he ought to have exercised a discretion as to whether or not to give this tenant time, because, it is said, the tenant was willing, even at the last decision of the questions against him, to make up all the arrears under Sub-section (5). I fail to see how, under Sub-section (5), it was open to the learned Judge to give him any such facility. There are other difficulties. The provision by which money can be paid to the Rent Controller is where the landlord refuses to accept the rent referred to in Sub-section (1), that is to say, 'rent to the full extent allowable by this Act.' It is said, on the other hand, by Mr. Pugh that as there were proceedings to fix the standard rent and as these proceedings were at the instance of the landlord, the Statute will be satisfied meantime provided the tenant pays some bona fide rent into the hands of the Controller. All I can say is that if that is the intention of the Statute, the Statute will have to be drafted again very differently. There is no room for such provision, in my judgment, in the sections I have in front of ma. A bona fide rent' is a very curious juristic notion, and I doubt if the Legislature intended the rights of any one to depend upon it. It has not said anything which leads me to think so. In point of fact, the applicant's difficulties were not very real. He had agreed to pay Rs. 70 a month. The relieving Statute came into force on the 5th May 1920. It was open to him to pay Rs. 70 (under protest, as to part, if he liked) to preserve his rights as a tenant under the Bent Act and to recover back from the landlord, if it should be necessary. That was perfectly open to him. Instead of doing that, he acts under Section 2, Sub-section (1), but not correctly. He pays an insufficient rent into the hands of the Rent Controller, He pays it under circumstances which make it very difficult to say that the landlord had ever refused to accept the rent referred to in Sub-section (1). I am of opinion that the learned Judge did no other than he ought to have done and that he did not do anything which amounted to illegality nor has he misconstrued his powers. In these circumstances the Rule is discharged with costs.


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