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Amar Nath Misra Vs. SreenaraIn Mansingka - Court Judgment

LegalCrystal Citation
SubjectConstitution;Tenancy
CourtKolkata High Court
Decided On
Case NumberOriginal Suit No. 1650 of 1949
Judge
Reported inAIR1951Cal442,54CWN617
ActsWest Bengal Premises Rent Control Act, 1950 - Sections 14, 16 and 18(5); ;General Clauses Act, 1897 - Section 6; ;West Bengal General Clauses Act, 1899 - Section 8; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Section 12(1) and 12(2)
AppellantAmar Nath Misra
RespondentSreenaraIn Mansingka
Appellant AdvocateA.K. Sen and ;D.K. Sen, Advs.
Respondent AdvocateS.K. Bose, ;B.C. Mitter and ;T.P. Das, Advs.
Cases ReferredPiare Dusadh v. Emperor
Excerpt:
- .....b. s. together with interest & costs according to the requirements of section 12 (2), west bengal premises rent control act, 1948, & the deft. also deposited in the small cause ct. the claim & costs of the suit no. 4081 of 1948 filed by the pltf. in the circumstances, the deft. claims reliefs under the protection of the west bengal premises rent control act, 1948.3. it appears that the lease in favour of the pltf. was executed by the trustees of the trust estate on 7 2-1948. on 29-7-1948 the deft. in this suit instituted a suit in this ct. being suit no. 2543 of 1948 for declaration that the lease dated 7-2 1948 in favour of the pltf. was collusive & not binding & for other reliefs. on 24-9-1948 the suit was dismissed by n. c. chatterjee j. an appeal was preferred by the deft. & during.....
Judgment:

Bose, J.

1. The pltff. sues the deft for recovery of possession of premises No. 50, Burtolla Street, Calcutta, for arrears of rent, mesne profits & other reliefs. The pltf alleges that he is a lessee of premises No. 50 Burtolla Street. The deft. was a monthly tenant under the pltf. according to the Bengali calendar in respect of the said premises at a rent of Rs. 240 p. m. up to 14th Agrahayon 1855 B. S. (corresponding to 30-11-1948) & thereafter at the rent of Rs. 285 p. m. By a notice to quit dated 23-3-1949, the tenancy was terminated & the deft. was called upon to quit & vacate the premises at the expiry of the month of Chaitra 1355 B. S. corresponding to 13-4-1949. The deft. has without the consent or authority of the pltf. or his predecessor-in-interest sublet a major portion of the said premises for more than six consecutive months & is realising large sums as rents from the sub-tenants. The deft. has also failed & neglected to pay rents for the months of Jaistha, Assar, Sraban, Bhadra & Aswin 1355B. S. (l5-5-1948 to 17-10-1948) amounting to Rs. 1200 at the rate of Rs. 240 p. m. The deft. also failed to pay rent from Magh 1354 B. S. to the end of Baisakh 1355 B. S. (corresponding to the period from 7-2-1948 to 14-5-1948) amounting to Rs. 776 for which a suit being Suit No. 4081 of 1948 filed by the pltf. was pending in the Small Cause Ct., Calcutta. In the circumstances the pltf. filed this suit for ejectment & other reliefs as stated above.

2. In the written statement filed by the deft. on 15-6-1949 it is stated that the premises No. 50, Burtolla Street, belonged to a Trust created by one Parbati Debi. The deft's father Dwarkadas Mansingka was a tenant under the Trust Estate as monthly tenant for many years & after his death in 1946 the deft. for self & as Karta of a Joint Hindu Mitakshara family had become the monthly tenant of the premises. The deft. admits that the rate of rent was Rs. 240 up to the end of November 1948, & thereafter Rs. 285 p. m. He denies the validity of the notice to quit & denies that the major portion of the premises had been sublet. It is stated that a portion of the premises had been sublet by the deft's father long before the Calcutta Rent Ordinance, 1946 or the West Bengal Rent Control Act 1948 & the sub-tenants have since been continuing in possession. It is stated that the deft. has deposited in Ct. the rents for Jaistha 1355 B. S. to Aswin 1355 B. S. & for Chaitra 1355 B. S. to Jaistha 1356 B. S. together with interest & costs according to the requirements of Section 12 (2), West Bengal Premises Rent Control Act, 1948, & the deft. also deposited in the Small Cause Ct. the claim & costs of the Suit No. 4081 of 1948 filed by the pltf. In the circumstances, the deft. claims reliefs under the protection of the West Bengal Premises Rent Control Act, 1948.

3. It appears that the lease in favour of the pltf. was executed by the trustees of the Trust Estate on 7 2-1948. On 29-7-1948 the deft. in this suit instituted a suit in this Ct. being Suit No. 2543 of 1948 for declaration that the lease dated 7-2 1948 in favour of the pltf. was collusive & not binding & for other reliefs. On 24-9-1948 the suit was dismissed by N. C. Chatterjee J. An appeal was preferred by the deft. & during the pendency of the appeal pursuant to an order of the Appeal Ct. made on 17-11-1948, the deft. paid rent from Kartick 1355 B. S. to Faigoon 1355 B. S. to the solicitors for the pltf. On 16-3-1949, the appeal preferred by the deft. was dismissed.

4. The present suit was filed on 9-5-1949. The Writ of Summons was served on 12-5-1949. On 13- 5 1949 the deft. submitted to a decree being passed in the Small Cause Ct. suit for the claim & costs of that suit & on 28-5-1949 he deposited in that Ct. Rs. 901-9-0 being the amount of claim & costs in that suit. On 2-6-1949 the pltf. withdrew the said sum from the Small Cause Ct.

5. On 11-6-1949, the deft. applied before this Ct. for leave to pay through Ct. in terms of Section 12 (2), West Bengal Rent Control Act, 1948, the arrears of rent with interest & costs & prayed for stay of the suit. P. B. Mukherjee J. granted leave to pay the money on the ex parte appln. of the deft. on 11-6-1949.

6. On 13-6 1949 the deft. deposited Rs. 2525 with the Registrar of this Ct. made up as follows:

(1) Rent from Jaistha to Aswin 1355 Rs. 1200-0-0B. S. (15 5-1948 to 17-10-1948)at Rs. 240 p. m.(2) Interest : Rs. 62-8-0(3) Rent from Chaitra 1355 B. S. to Rs. 855-0-0Jaistha 1356 B.S. at Rs. 285 p.m.(4) Interest : Rs. 3-00(5) Costs of the suit as assessed by Rs. 350-0-0the Ct.(6) Registrar's commission & other Rs. 54-8-0charges : --------------Rs. 2525-0-0--------------

7. The following issues were raised in this suit :

(1) Has the Ct. jurisdiction to entertain the suit ?

(2) Should the suit be stayed under the provisions of Section 12 (2), West Bengal Premises Rent Control Act, 1948 ?

(3) Is the deft. defaulter in payment of rent as alleged in paras. 6 & 7 of the plaint or at all?

(4) Has the deft. without the consent or authority in writing of the pltf. sublet a major portion of the premises in suit for more than six consecutive months ?

(5) Has the deft's tenancy been validly determined by notice to quit dated 23-3-1949 ?

(6) To what reliefs, if any, is the pltf. entitled ?

8. Issue 1 : It is contended by the learned counsel for the deft. that since the West Bengal Premises Rent Control Act (17 [XVII] of 1950) came into force the original jurisdiction of this H. C. to try or entertain a suit by a landlord against a tenant for recovery of possession has been taken away except suits in which the rent payable for one month in respect of the premises in suit exceeds Rs. 500 & the premises is situated on land wholly within the ordinary civil jurisdiction of the Calcutta H. C. Reliance is placed on Section 16 of the Act of 1950 which runs as follows :

'Notwithstanding anything contained in any other law, a suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Cts. as set out in Sch. 'B' & no other Ct. shall be competent to entertain or try such suits.'

9. It is pointed out that there is difference in the wording of Section 16 of the old Act of 1948 & the wording of the present Section 16 in the new Act of 1950 & it is submitted that the new section imposes an absolute bar not only to try or entertain suits for possession instituted after the commencement of the Act but also suits for recovery of possession by a landlord against a tenant pending on the date when the new Act came into force, i. e., on 1-4-1950.

10. It is a fundamental rule of interpretation of statutes that no statute shall be construed so as to have a retrospective operation unless the language is such as mainly requires such construction; and the same rule involves another & subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. In order that a statute may have a retrospective effect, it must be made so by express enactment or by necessary intendment. In Halsbury's Laws of England, vol. 31 para. 670 it is stated that a statute is prima facie prospective & does not interfere with existing rights unless it contains express words or there is the plainest implication to that effect. It was contended that as Section 16 of the new Act affects matters of procedure only it should be considered as retrospective in effect but it appears to me that a right to have a suit entertained or tried in the original jurisdiction of the H. C. is more than a mere matter of procedure & it affects substantive & vested or existing rights.

11. A large number of authorities was cited before me by Mr. B. C. Mitra, the learned counsel for the deft. It is unnecessary to prolong this judgment by a detailed discussion of the individual cases. The decisions in those cases turned on the construction of the wording of the particular statutes concerned in those cases. It is sufficient to point out that they all reaffirm the general propositions that I have stated above.

12. In so far as the new Rent Control Act of 1950 is intended to be retrospective in operation, it has been made so by express words as for example, Section 18 (5) of the hew Act makes certain provision of the new Act applicable to pending suits.

13. Further Section 45 of the new Rent Control Act of 1950 repeals the West Bengal Premises Rent Control Act of 1948. The effect of a repeal of a statute by another statute is provided by Section 8, Bengal General Clauses Act (1 [I] of 1899) the relevant portion whereof is as follows :

Section 8 : Whether this Act or any Bengal Act made after the commencement of this Act repeals any enactment hereto made or hereafter to be made then unless a different intention appears the repeal shall not (b) affect the previous operation of any enactment so repealed or anything duly done so thereunder or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred in any enactment so repealed or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty etc., & any such investigation, legal proceeding or remedy may be instituted, conducted or enforced as if the repealing Act had not been passed.

14. It may be pointed out that Section 6(e), General Clauses Act, 1897, is similarly worded & in Piare Dusadh v. Emperor, 1944 F. C. R. 61 at p. 98 : (A.I.R. (31) 1944 F. C. l : 45 Cr.L.J. 413), Spens C. J. held that on the principle embodied in Section 6(e), General Clauses Act, 1897, the effect of the repeal of an enactment on cases pending at the time of the repeal would be that they would continue as if the enactment had not been repealed. But this is subject to the qualification that the repealing enactment contains no 'provision or indication to the contrary. I do not find anything in the language of Section 16 of the new Act of 1950 which lends colour to the supposition that the section is intended to have any retrospective operation. On the other hand the words 'shall lie to the Cts.' & 'such suit' indicate that the section is designed to have prospective effect only. The new section specifies in which Cts. future suits will be instituted & tried.

15. I hold that the jurisdiction of this Ct. to try & give relief in suits by landlords against tenants for recovery of possession pending in the H. C. on the date when the new Act of 1950 came into force remains unaffected.

16. Issues 2 & 3.--It is alleged in para. 7 of the plaint & the allegations are not disputed by the deft's counsel that the deft. did not pay rent to the pltf. from 7-2-1948 to 14-5-1948 (24th Magh 1354 to the end of Baisakh 1355 B. S.) & a suit was filed in respect of such arrears in the Small Causes Ct. Calcutta, & was pending on the date when the present suit was filed. It appears from the records of the Small Cause Ct. suit that the Small Cause Ct. suit was numbered 4061 of 1948 & was instituted on 19-5-1948.

17. It is also alleged in para. 6 of the plaint & this is also not disputed by the deft's counsel that the rents for Jaistha to Aswin 1355 B. S. (15-5-1948 to 17-10-1948) amounting to Rs. 1200 were in arrears at the date of the present suit & had not been paid to the pltf.

18. After the present suit was filed on 9-5-1949 & the Writ of Summons was served on the deft. on 12-5-1949, the deft. submitted to a decree for the amount claimed with costs in the Small Cause Ct. suit on 13 5-1949 & deposited Rs. 901/9 in the Small Cause Ct on 28-5-1949 on account of such claim & costs. No amount was paid on account of interest on the arrears of rent in the Small Cause Ct. suit. According to the pltf. such interest would amount to Rs. 53-7-0.

19. On 11-6-1949 the deft. made an appln. in this suit for leave-to pay through Ct. the arrears of rent then outstanding with interest & costs as contemplated by Section 12 (2), West Bengal Rent Control Act of 1948, & after obtaining leave from the Ct. ex parte, deposited into Ct. Rs. 2525, the particulars whereof I have already set out in the previous part of this judgment.

20. It appears that on 20-6-1949 notice was given of the fact of the deposit of Rs. 2525 to the pltf. & on 26-6-1949 the appln. of the deft. under Section 12 (2) of the Rent Act was disposed of & the pltf. became entitled to withdraw the money from the Ct.

21. It is contended by Mr. S. K. Basu the learned counsel for the deft. that his client having complied with the requirements of Section 12 (2) of the Rent Act, 1948, is entitled to have the suit stayed in terms of that section.

22. Mr. A. K. Sen, the counsel for the pltf., however, contends that the arrears of rent concerned being arrears which accrued before the Act of 1948 came into force the deft. should have paid all the arrears with interest & costs as provided in Section 12 (1) (b) of the Rent Act 1948 within one month after the date of the commencement of the Act, & not having done that the deft. cannot avail himself of Section 12 (2) of the Act. According to the learned counsel, Sections 12 (1) (b) & 12 (2) are mutually exclusive. I do not think that this contention is sound. It is clear that when a default in payment or deposit in terms of Section 12 (1) is made the ground of a suit for ejectment that Section 12 (2) comes into play. Section 12 (2) presupposes the existence of default in compliance with the provision of cls. (a), (b) & (c) of Section 12 (1) before it can be invoked in aid of the tenant. It thus appears that a tenant can avail himself of the benefit of Section 12 (2) in spite of the fact that he did not comply with cls. (a), (b) or (c) of Section 12 (1).

23. It is next contended by the learned counsel for the pltf. that this suit having been filed on 9-5-1949, on the ground inter alia of default in payment of rent the recovery of which was the subject matter of the Small Cause Ct. suit, it became incumbent on the tenant if he wanted to avail of Section 12 (2) to pay interest at the rate of six & a quarter per cent. on the amount of rent claimed in the Small Cause Ct. suit. The deft. has not done that within one month from the service of the summons nor is the amount deposited in Ct. on 13-6-1949, sufficient to cover this amount of interest. In the circumstances the deft. cannot get the benefit of Section 12 (2) of the Act. In my view this contention is not without substance. The moment this suit was filed & the summons was served by virtue of Section 12 (2) of the Act of 1948 there arose an obligation upon the tenant to pay interest at the rate of six & a quarter per cent, on the arrears of rent then outstanding. This obligation or liability to pay interest arose also in respect of the claim in the Small Cause Ct. suit & it remains undercharged till the present day.

24. It is further contended by the learned counsel for the pltf. that Section 12 (2) of the Act enjoins that the tenant must pay through Ct. within a period of one month. He points out that there is a distinction between the. words 'payment into Ct.' 'Deposit in Ct.' & 'payment through Ct.' According to him 'payment through Ct.' within a month means that the money must be paid or lodged into Ct. in sufficient time so as to reach the hands of the landlord within a month. In my opinion this contention is sound. The obligation of a tenant does not end by simply depositing the money in Ct. but he must further see that the money deposited actually reaches or there is a possibility of the money reaching the landlord within the prescribed period. In the present case the money was not deposited till 13-6-1949 & notice of the deposit was not given to the landlord till 20-6-1949.

25. The counsel for the pltf. further pointed out that the deft. also failed to pay rent for the month of December 1948 at the rate of Rs. 285 p. m. Therefore Rs. 45 was in arrear at all material times & is still in arrear, & as the amount was not paid at the time the deposit was made under Section 12 (2) the deft. cannot get the benefit of Section 12 (2) & have the suit stayed. It is admitted in the written statement that the rent for December 1948 was agreed to be paid at the rate of Rs. 285 & it is also admitted that rent for December 1948 was actually paid at the rate of Rs. 240 only.

26. I hold that the requirements of Section 12 (2) of the Act of 1948 were not complied with by the deft. & he is not entitled to the benefit of that section.

27. The next question that arises for consideration is whether the deft. is entitled to claim any relief under Section 14 of the new Rent Control Act of 1950.

28. It is contended by the learned counsel for the pltf. that if Section 14 is applicable to the present case the section should be applied as a whole including the proviso which deprives the tenant of the benefit of protection against eviction if the tenant makes default in payment of two months' rents on three occasions within a period of 18 months & as the deft. has de-faulted on three occasions between 24th Magh 1354 B. S. & Baisakh 1356 B. S. he should be deprived of the benefit of Section 14 of the Act of 1950.

29. I accept this contention of the pltf. as sound. In my opinion it is clear from the wording & scheme of Section 18 (5) of the new Act that the Legislature intended to grant reliefs under Section 14 to such tenants as are entitled to get reliefs under that section. The proviso to Section 14 disentitles a tenant to get reliefs under Section 14 if he commits default as contemplated in the Proviso. The Ct's power of granting reliefs under Section 14 is limited or restricted by the proviso in that section. The proviso is an integral part of the section & Section 18 (5) makes the entire Section 14 including the proviso applicable to pending suits.

30. I hold that the deft. having committed default of the nature contemplated by the proviso to Section 14 is not entitled to the benefit of protection against eviction afforded by Section 14 of the new Act.

31. Issue 4.--It is admitted in the written statement that portion of the premises in suit had been let out by the father of the deft. to sub-tenants & they are continuing in occupation since then. The question before me now is whether a major portion of the premises had been let out to sub tenants for more than six consecutive months at the date when the present suit was filed. (After discussing the evidence, the judgment proceeded.) I bold that it has not been established that a major portion of the premises been let out to sub-tenants & I decide this issue in favour of the deft.

32. Issue 5.--This has not been pressed by the deft. & I decide the issue in favour of the pltf.

33. Issue 6.--It appears that the pltf. has been paid at the rate of Rs. 285 p. m. for occupation of the deft. till the end bf Chaitra 1356 B. S. (EX. O).

34. There will, therefore, be a decree in favour of the pltf. for possession of the premises & for mesne profits from 1st Baisakh 1357 B. S. at the rate of Rs. 285 p. m. till possession is delivered. The deft. will pay to the pltf. the general costs of the suit & half the cost of hearing before me & also all reserved costs if any on scale No. 2. Certified for two counsel. The execution of the decree is stayed for a month after the drawing up of the decree.


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