1. This is an appeal by the defendant from an ejectment decree passed against him on May 2, 1950, by Mr. Justice Bose sitting singly on the Original Side.
2. The defendant was a monthly tenant (according to the Bengali Calendar) under the plaintiff in respect of premises No. 50, Brutal Street Calcutta at a rent of Rs. 240/- per month.
3. The defendant made default in payment of rent from 24th Magh, 1354 B. Section (7th February, 1948) to the end of Baisakh 1355 B. Section (14th May, 1948) amounting to Rs. 766/- for which the plaintiff filed a suit on 19th May, 1948 in the Court of Small Causes, Calcutta being Suit No. 4018 of 1948; the total sum including costs claimed was Rs. 901/9/-.
4. The defendant also failed to pay rent for the months of Jaistha to Aswin, 1355 B.S. (15th May to 17th October, 1948) amounting to Rs. 1,200/-.
5. The West Bengal Premises Rent Control Act of 1948 came into force on December 1, 1949, and it is not disputed that by reason of the increase allowed by the Act, the rent pay-able by the tenant to the landlord from 1st December 1948 (15th Agrahayan 1355 B. Section)' became Rs. 285/- per month.
6. The tenancy was determined by a notice to quit expiring with the month of Chaitra, 1355 B. S.
7. It appears that under an order of this Court dated November 17, 1948, in another proceeding relating to the premises, the defendant paid rent from Kartick to Falgoon 1356 B. S.
8. This suit out of which this appeal arises was brought on May 9, 1949 (26th Baisakh 1356 B. S.)
9-10. In the plaint, the plaintiff (landlord) alleges that the defendant (tenant) sub-let a major portion of the premises for more than six consecutive months without the landlord's consent and/or authority and that he had also defaulted in payment of rent. He also referred to the suit in the Court of Small Causes, Calcutta, and claimed a decree for possession. Rs. 1200/- for arrears of rent, mesne profits at Rs. 50/- per day from 1st Baisakh, 1356 B. S.(14th April, 1949) till delivery of possession, and costs.
11. The writ of summons was served on I3th May 1949. On that day it appears, by consent, a decree was passed by the Small Causes Court for Rs. 901/9/- which the defendant (tenant) paid into that Court and the plaintiff took the money out of the Court on 2nd June, 1949.
12. On 11th June 1949, the defendant took out a notice of motion in this suit for moving the Court on June, 20, 1949, for making 'payment through Court' in terms of Section 12 (2) of the Act of 1948. This application was moved ex parte on June 11, 1949, and on that day, ah order was made by this Court without prejudice to the contentions of the plaintiff giving leave to defendant to deposit with the Registrar of this Court (Original Side), the sum of Rs. 2,150/- for arrears of rent with interest thereon and a further sum of Rs. 350/- towards costs in terms of Section 12 (2) of the Act. A copy of the notice was served- on the plaintiff on 14-6-1949, informing the plaintiff that an order had been made by the Court giving the tenant liberty to deposit the money.
13. On 13th June, 1949, the tenant deposited Rs. 2525/- in this Court. The said sum is made up as follows:
Rs. a. p.Arrears of rent ... ... 1,200 0 0Interest ... ... 62 8 0Rent from Chaitra, 1355 Jaistha 1356 B. S.at Rs. 285 per month ... ... 855 0 0Interest ... ... 3 0 0Costs as assessed by the Court ... 350 0 0Registrar's commission and other charges... 54 8 0_____ ____Total... 2,525 0 0
14. The defendant filed his written statement on 16th June and on 20th June, 1949, informed the plaintiff's attorney that the deposit had been made.
15. The learned Judge on the pleadings be-fore him framed six issues. It is material to set out the following issue:
1. Should the suit be stayed under the pro-visions of Section 12 (2) of the West Bengal Premises Rent Control Act 1948?
2. Is the defendant a defaulter in payment of rent as alleged in paragraphs 6 and 7 of the plaint or at all?
3. Has the defendant without the consent or authority in writing of the plaintiff, sub-let a major portion of the premises for more than six consecutive months?
4. To what relief, if any, is the plaintiff en-titled?
16. There were two other issues framed but they are not relevant for the purpose of this judgment, as no point was made by either counsel before us on them.
17. The learned Judge found issues Nos. l and 2 against the defendant (tenant). As to-issue No. 3, he said that the onus to prove that a major portion of the premises had been sub-let was on the plaintiff and he, on the evidence be-fore him, was unable to say that the plaintiff had satisfactorily discharged the onus. On his findings on issues 1 and 2, the learned Judge refused to stay the suit and passed the decree-for possession. It is against this decree that this appeal has been preferred.
18. The main questions that have been canvassed before us by Counsel are these:
1. Was there a sub-letting within the mischief of the Act?
2. Is the tenant entitled to have a stay of the suit by reason of the deposit he made in this Court?
3. If not, is the tenant entitled to relief under Section 18 (5) of the West Bengal Premises Rent Control Act, 1950 which was passed pending the suit and which came into force on March 31, 1950.
19. The Act of 1950 repeals the Act of 194 but it is not contended before us that the repeal has any effect on suits or proceedings pending on the date when the Act came into force.
20. There is no express or implied term in the Act of 1950 which affects any pending suit or proceeding.
21. It is admitted by Counsel for the parties before us that the rights of the parties are governed by the provisions of the Act of 1948 save that the appellant's counsel has argued that the tenant is entitled to relief under Section 18 (5) of the Act of 1950.
22. On behalf of the respondent, it has been contended that the deposit made by the tenant does not give him any protection under the Rent Act. According to the respondent's counsel, Section 12 (1) (b) refers to arrears before the commencement of the Act and sub-section (2) provides for payment of arrears which accrued due after the commencement of the Act. Counsel contended that if rent had fallen in arrears before the commencement of the Act, the tenant could get protection only if he deposited the amount within a month as provided in Section 12 (1) (b).
23. Counsel said in the case before us the arrears had accrued due before the commencement of the Act, and therefore the deposit under sub-section (2) was, insufficient to give the tenant protection under the Act. Subsection (2) is in the following terms:
'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 Court all arrears of rent allowable by this Act up-to-date together with interest thereon at the rate of 61 per cent, per annum and such costs as the Court may award.'
24. The sub-section contemplates the filing of a suit on the, ground of default in making payment or deposit in accordance with sub-section (1). In my view, this sub-section gave a tenant a further opportunity to save himself. The scheme of the Act seems to be this. To get the benefit under the Act, (a) the tenant must pay rent within the time fixed in the contract or in the absence of such contract by the 15th of the month next following that for which rent was payable; (b) if the tenant had made default and there were arrears of rent which accrued due before the commencement of the Act he could save himself by paying the arrears within a month after the date of the commencement of the Act (December 1, 1948) and interest on the arrears at 6 1/4 per cent per annum, if they were already subject matter of a suit, proceeding, decree or order; (c) if the amount of rent had been increased by the Controller, the tenant must pay it within the time specified by the Controller. If the time had not been specified by him, then within a month from the date of such order. In certain cases, the tenant might deposit the rent within the time and in the mariner provided in Section 19; (d) if the tenant had failed to make payment or deposit as provided in subsection (1), he could still get the protection under the Act if he paid or deposited the amount referred to in sub-section (2) in the manner therein provided. In other words, the suit for possession was stayed if the tenant paid within a month from the date of the service of the summons (I) arrears of rent to the full extent allowable under the Act, (ii) interest thereon at 6i per cent, per annum and (iii) such costs as the Court might award. This sub-section is subject to one condition, namely, that if there was a failure to pay rent for three consecutive months, the interest of the tenant was ipso facto determined and he was no longer deemed to be a tenant. There-fore, obviously, he was unable to make any payment under sub-section (2) and get the suit stayed or the protection of the Act.
25. The scheme of Sections 11 and 12 seems to us to be pretty clear. The Act says to the tenant: pay rent regularly and occupy the landlord's premises. It says to him: 'You cannot go on living in the landlord's premises without regularly paying the rent. If you have fallen into arrears, the Act gives you a chance to pay off the arrears within a month from 1st December 1948. If you do so, you would not be ejected. Even if you make default there, still the Act gives you another chance namely, to pay within a month from the date of, the service of the writ of summons if a suit for ejectment has been instituted; and if you pay as specified in sub-section (2) the suit will be stayed. You have to pay interest and costs as provided in sub-section (1) (b) and sub-section (2) of Section 12'. In other words if the arrears of rent is the subject matter of a suit or proceeding, decree or order, it will carry interest. This seems to me the scheme of the Act.
26. We are, therefore, unable to accept the contention pressed on behalf o0f the respondent that in this case even if the deposit were other-wise good, it is not sufficient to save the respondent from eviction.
27. The next point argued by the respondent's counsel before us was that the appellant was not entitled to the protection of the Rent Act as he had sub-let for more than six consecutive months a major portion of the premises without the authority or consent of the landlord so to do.
28. On behalf of the appellant it has not been denied that there is sub-letting by. the-tenant. It is not denied that the sub-letting has been for more than six consecutive months. But it is denied that the sub-letting has been of a major portion of the premises. This point was very strenuously contested by both counsel.
29. Before the learned trial judge a number of witnesses including sub-tenants were examined on behalf of the plaintiff. It is clear from the evidence that out of 48 rooms including kitchen, 11 rooms are in the possession of the tenant and the rest have been sub-let to various sub-tenants.
30. Anil Kumar Das Gupta, an Assessment Inspector of the Corporation of Calcutta, was called as a witness on behalf of the plaintiff. Before he came to the witness box he gave a proof of his deposition to the plaintiff's attorney. But in the witness box he gave evidence contrary to the statement he had already made to the plaintiff's attorney and his evidence was in favour of the defendant. It was quite clear from his evidence that the witness was giving evidence against the party who had called him. Counsel for the plaintiff thereupon asked the learned Judge to permit him to put questions to the witness which might be put in cross-examination by the adverse party. The learned Judge in his discretion permitted counsel to put such questions. The witness admitted before the Judge that more than half the premises had been sub-let. The learned Judge, however, on the evidence before him on this issue held that though the evidence of the witnesses established that a large number of rooms had been sub-let to tenants, there was no definite evidence be-fore him as to the actual area sublet. He took the view that the onus to prove the mischievous subletting was on the plaintiff and that he had not satisfactorily discharged the onus. The learned Judge on the evidence before him held that the plaintiff had not succeeded in proving that there had been sub-letting of the major portion of the premises and he decided this issue in favour of the defendant. We are, however, not disposed to take the view the learned Judge has taken.
31. There is abundant evidence to show that the tenant has sub-let a major portion of the premises. Out of 48 rooms he has retained only 11 and the rest he has sub-let. But then the question arose as to what was the true meaning of the expression 'major portion of the premises'. Is the Court to go by the floor area or the value of the portion sub-let? What is the test to be applied? If one goes by the floor space or by! value, it would sometimes lead to illogical re-' suits. Suppose there is a four-roomed house built on a cottah of land with a compound of a bigha of land. The landlord lets the house with the compound to a tenant. In the Act, premises include the gardens and outhouses appertaining to the building let. The tenant sub-lets the house only but retains the ground. Does he come within the mischief of the Act? Or again, take the case of the tenant keeping the house to himself and sub-letting the garden to a sub-tenant. Will he or will he not come with-in the mischief of the Act? Take another illustration. Suppose a house consists of four rooms, one of which has a marble floor and is fitted with all modern comforts. Assume its value to be much more than the rest of the house and this room only is sub-let to a sub-tenant. Would it be said that thhere has been sub-letting of major portion of the premises let? Many questions like these can be framed and answers to such questions, one way or the other would be bizzare.
32. It has been contended on behalf of the appellant that we must go by the floor space. But why should we not go by the cubic space? Cubic space for the purpose of living in a room is more important than the floor space. I think the correct way of looking at the matter is, as my Lord the Chief Justice pointed out in the course of the argument, that we should take a common sense view of the matter.
33. If, after taking into consideration all the circumstances of the case, it can be said, as in ordinary parlance, that a major portion of the habitable portion of the premises has been sub-let, the tenant comes within the mischief of the Rent Act and is not entitled to its protection.
34. In the case before us having regard to the finding of the learned Judge and the controversy raised before us we by consent of parties directed an Engineer of this town who is in the register of the Court to measure the floor area and make a report. The material portion of the report is as follows:
Ground 1st 2nd 3rd Total
floor. floor. floor. floor.
Tenant (Appellant). 629 109 658 152 1548
Sub-tenants 747 1345 553 1013 658
Disputed x x 232 x 232
_____ _____ _____ _____ _____
1376 1451 1448 1165 5438
35. The Engineer took the measurements in the presence of the representatives of the parties. He took the measurements also of the court-yard, covered passages, gangways and the terrace in the several floors. The pas-sages and gangways give access to the different rooms in each floor. They are in the use of all the occupants as they are the only access to the different rooms in each floor. The open terrace of a floor is used by the tenants of that floor. There are also two privies (area 32 Section ft) one urinal and a staircase in each of the floors which are used by the sub-tenants of the respective floors. It is argued on behalf of the appellant that in deciding whether a major portion has been sub-let, the Court must exclude the courtyard, the passages, the gang-ways and the terrace. Counsel for the appellant said that these had not been sub-let: they were not within the ambit of the contract of tenancy. Yet, the sub-tenants have the user of them. It seems to me to be a curious position that the sub-tenants would have the benefit of them but they are to be excluded from our consideration in deciding as to whether a major portion of the house had been sub-let.
36. It appears that the tenant (defendant) has in his possession 1548 Sq. ft. and the sub-tenants have in their possession 3658 Sq. ft. excluding the passages and the gangways.
37. We are unable to take this extreme view urged by appellant's counsel as to how the portion sub-let should be determined for the purpose of the Act.
38. Assuming, however, we exclude the pas-sages, gangways and the courtyard, we cannot exclude the terrace. If a room has been sub-let, certainly the terrace over it has been sub-let. If we exclude the passage etc., but include the terrace there would still be a sub-letting within the mischief of the Act. But I do maintain, as my Lord the Chief Justice pointed out, that we must take a common sense view of the thing and look at the matter broadly. We have to make up our mind as ordinary people do it, as to whether there has been a sub-letting of the major portion of the premises in the ordinary sense in which people understand it and we have no doubt that Anil Kumar Das Gupta, the Assessor of the Corporation took the same view and said that more than half the portion of the premises had been sub-let.
39. The defendant has not given evidence. He has not produced his books of account to show what rent he realised from the sub-tenants. There are a large number of sub-tenants and there is no doubt in our mind that there are books and papers which would show what rent is realisable by the sub-tenants. He did not disclose his books and papers in his affidavit of documents. He has not helped the Court in any way. Why did not the defendant come to Court? Obviously he was afraid to face the cross-examination and we are bound to draw the inference that if the defendant had given evidence it would have been unfavourable to him.
40. There is abundant evidence in this case that the tenant has sub-let a major portion of the house. Out of 48 rooms the tenant has retained only 11 and the rest he has sub-let. Thus a major portion of the habitable accommodation is in possession of the sub-tenants.
41. The scheme of the Act is to protect a bona fide tenant who requires the premises for his own use and not to protect the tenant who by sub-letting a major portion of the premises makes profit out of it. If it is merely a case of profit, the landlord should get the profit. He is the owner of the house. The tenant's right cannot be substituted, for the ownership of the landlord. Having regard to the paucity of accommodation in Calcutta, the legislature has intervened and has enacted the Rent Act. The Act says that if a tenant bona fide requires the premises which he occupies for his own occupation he would be protected from eviction so long as he pays rent in the manner provided in the Act. In this case, there is no doubt in our mind that the tenant by sub-letting the rooms has been making a large profit and to conceal that profit he has not disclosed the books of account.
42. On the facts of this case and on the considerations aforesaid, we hold against the tenant and we find it as a fact that the tenant has sub-let a major portion of the premises within the meaning of the Act and is not entitled to its protection. As he was duly served with a valid notice to quit, the decree for possession must be sustained.
43. This finding is sufficient for the disposal of the appeal but having regard to the fact that other points have been argued before us, we consider it proper to record our reasons on these points.
44. I have already said that under leave given by the Court on 11th June, the tenant has deposited Rs. 2,525/- in Court. That deposit was made on 13th June, and the information that the money had been deposited was given for the first time on 20th June, to the plaintiff's attorney.
45. It has been argued on behalf of the respondent that the amount deposited is not sufficient for the purpose of Section 12(2) as it does not cover the interest on the amount which the tenant deposited in the Court of Small Causes, Calcutta and which the landlord withdrew.
46. On the other hand, on behalf of the appellant, it has been contended that inasmuch as the decree was by consent and the tenant deposited the money into Court and the landlord took it out, he was not entitled to any interest on the money deposited there and taken out by him. According to Counsel no interest was payable on that sum and therefore, the amount deposited in this Court was sufficient for the purpose of sub-section (2) of Section 12 of the Act of 1948. In other words, according to counsel for the appellant, the right amount has been deposited.
47. We do not think the appellant's contention on this point is right. The landlord filed the suit in the Court of Small Causes for rent. The tenant submitted to a decree and deposited the amount decreed as he was entitled, to under Order 21, Rule 1 of the Code of Civil Procedure. All money payable under a decree may be paid into Court whose duty it is to execute the decree and where such payment is made, notice of the payment is given to the decree-holder. That notice is given so that the decree-holder may take out the money. In the Small Causes Court when the landlord took out the money, he never said that he gave up interest that was payable under sub-section (2) of Section 12 of the Act of 1948. At the time when the money was deposited in the Small Causes Court, the suit in this Court was pending and the question of interest never arose and could arise in the Small Causes Court.
48. Interest under sub-section (2) is payable as a condition for stay. It is a statutory interest given to the landlord by the legislature as compensation for his having had to file a suit to recover his legitimate dues. It may be noted that Section 12 (1) (b) also contemplates payment of interest. If the tenant paid the arrears under Section 12(1) (b), within a month after the date of the commencement of the Act, he had not to pay any interest on the arrears but where the arrears were already the subject matter of a suit or proceeding before a Court or of any decree or order of Court, interest was payable.
49. What is there in sub-section (2), to suggest that the interest is not payable merely because the landlord took the money which the tenant had deposited and had the right to deposit under Order 21, Rule 1 of the Code of Civil Procedure. That rule gives the judgment-debtor the right to satisfy the decree by making payment into Court. I do not see how such a right conferred on the judgment-debtor could deprive the landlord of his statutory right to get interest under Sub-s (2) of Section 12 of the Act of 1948. The Court has been given jurisdiction to stay a suit on certain conditions and these conditions are stated in sub-section (S). If the conditions are not fulfilled, the Court can have no jurisdiction to stay the suit. The rights of the parties in my view crystallize at the date of the institution of the suit. The words in subsection (2) are clear. If a suit is instituted 'against the tenant 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)..................'. The suit is instituted by the landlord against the tenant for eviction when the tenant has lost his protection under the Rent Act by reason of his failure to pay rent according to the contract or otherwise as provided in the Act. At the date when the suit is instituted, there are the arrears & at that point of time, the tenant has no protection whatsoever under the Act; he has defaulted in making payment of rent as it became due. This suit if the tenant wants it to be stayed, can be stayed, therefore, if the tenant pays all arrears of rent with interest thereon. The word 'arrears' must be construed with reference to the date of the institution of the suit. The subsequent payment of arrears in the circumstances as I have stated above cannot exonerate the tenant from his liability to pay interest in terms of sub-section (2). There is another point of view from which the problem can be looked at. At the date of the consent decree, the arrears were the subject matter of a suit, namely, the suit in the Small Causes Court. Therefore, interest on it was payable under Section 12(1) (b). There is nothing in our view in sub-section (2) which deprives the landlord of his right to get the statutory interest. If the deposit in the Court of Small Causes, Calcutta, is looked upon as a deposit within the meaning of the Act, even so, interest is payable on the arrears.
50. At one stage of the argument, it was admitted before us on behalf of the appellant that interest on the amount decreed by the Small Causes Court had not been paid because no interest was payable. We are of opinion that that argument is not sound for the reasons given above. But then learned counsel for the appellant advanced an alternative argument and that was this : Assuming that the deposit would carry interest, the money deposited by the tenant in this Court is sufficient to cover the interest.
51. Assuming that to be so, has the tenant paid the amount within the time specified in Section 12(2)? That depends on the meaning to be given to the words 'pays through the Court' in Sub-section (2). According to the learned counsel for the appellant the word 'pays' in the expression 'pays through the Court' means 'deposits'. In other words according to the learned counsel if the right amount is deposited into Court, within the month specified in the sub-section, the suit must be stayed. According to him mere deposit of the amount without anything more is sufficient for the stay of the suit.
52. It should be observed that Section 12 contemplates payment as also deposit. Sub-section (1) (b) speaks of payment but Sub-section (c) contemplates deposit. ('.........where the landlord refuses to accept any rent referred to in clause (a); Clause (b), or Clause (c) ............ unless the tenant deposits such rent and all subsequent rent allowable by the Act which becomes due in respect of such premises as provided in Section19...............'.) the tenant is not entitled to the protection of the Act.
53. Now turning to Section 19 of the Act, we find in Sub-section (2) (b) that the deposit has to be made 'within a fortnight of the date on which rent becomes due or from the expiry of the time within which such rent is required to be paid under Clause (a), Clause (b) or Clause (c) of Section 12, as the case may be, in the same manner as has been prescribed for the deposit of rent under Sub-section (1)'.
54. It should be observed that in the Act throughout a distinction is made between 'payment' and 'deposit.' Section 19(2) (b) emphasises that distinction. It says rent which is required to be 'paid'.........may be 'deposited'.
55. We are, therefore, unable to hold that the word 'pays' in the expression 'pays through the Court' means 'deposits' simpliciter, in Court. If it were the intention of the legislature that 'pays' means 'deposits' the legislature could have easily used the word 'deposit'. It has done so in the other parts of the Act where it became necessary. It has used the word in Section 12 itself. We, therefore, cannot accept the argument of the learned Counsel that mere deposit without anything more is sufficient compliance with the provisions of Sub-section (2) of Section 12.
56. Turning to the Civil P. C., we find in Order 24 provision for payment into Court. Rule 1 provides for deposit by the defendant of the requisite amount in satisfaction of the plaintiff's claim. Rule. 2. provides for notice of deposit. Rule 3 provides that interest on deposit is not to be allowed after notice to the plaintiff. In other words, if notice is given to the plaintiff that the amount has been deposited, no interest is allowed to him on the sum deposited by. the defendant from the date of the receipt of such notice, whether the sum deposited is in full satisfaction of the claim or falls short thereof.
57. It is contended on behalf of the respondent that the word 'pay' in 'pays through the Court' means actual payment to the landlord. The respondent's counsel argues that the money has to be deposited into Court and it is only when the money is taken out of it by the landlord that payment is made to him. According to respondent's counsel 'pays through the Court' means 'actual payment into the hands of the landlord depositing the money in Court' and that must be done within the time specified in Sub-section (2). In other words, not only the deposit but the actual payment-both these acts -are to be done within the month and then and then only can the tenant get the protection of the Act; otherwise, he says there is no compliance with the provision of Sub-section (2). This argument of the learned counsel for the respondent will lead to a serious difficulty. Suppose the money is deposited within 5 days from the service of the writ of summons and for some reason or other for no default of the landlord he does not receive it until after the expiry of a month from the date of the service of the summons. Is the tenant to be deprived of the protection of the Act? We do not think so. The tenant has deposited the money. There was no default on his part. The landlord was not in default either. He has not been able to take the money out before the expiry of the month. We do not think the intention of the legislature was that the right of the tenant would be jeopardised in a contingency like this.
58. The learned Counsel for the respondent argues that unless 'pays through the Court' means actual payment to the landlord, the landlord would suffer injury: in order to take the money out of the Court the landlord has to incur expenses. Therefore, it may, in some cases, be that he does not receive the actual amount of arrears and interest by reason of his having had to incur expenses for withdrawing the money out of the Court. But to that the answer is very simple. Section 12(2) of the Act says that the tenant has also got to pay such costs as the Court may award. A discretion has been given to the Court to fix the amount and no doubt, the Court when it gives leave to the tenant to deposit the amount will take this matter also into consideration. Once the Court fixes the amount and the costs to be deposited, there is no question of default either' of the landlord or the tenant. The tenant deposits the amount which has been fixed by the Court. Therefore, he is not at fault.
59. We think therefore that once the Court has given leave to deposit the amount with the requisite interest and costs which the Court has awarded, and that sum is deposited in Court by the tenant on notice to the landlord within a month from the service of the writ of summons, the tenant is entitled to the protection of the Act. We hold that the actual payment to the landlord is not pre-requisite under sub-section (2). It will be quite enough if within the month, the deposit is made on notice to the landlord.
60. In this case, the notice was not given to the landlord within the month. The first notice which the landlord's attorney received was the notice of an intention of the tenant to deposit the money & that was given on 14th June, that is to say, a month after the date of the service of the summons. The summons was served on 13th June. The fact that the deposit had been made was brought to the notice of the landlord's attorney on 20th June after some correspondence. Therefore in this case we are bound to hold that the deposit was not made within the time specified in sub-section (2) of Section 12 of the Act of 1948. The tenant, therefore, is not entitled to have the suit stayed & we think that the learned Judge's judgment is right and we must dismiss the appeal.
61. The appellant's counsel asked us to grant relief under Section 18(5) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. That sub-section runs as follows : ;
'If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Court or in 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.'
62. Section 14 defines when a tenant gets the benefit of protection against eviction. Sub-sections (1), (2) and (3) of Section 14 have an important proviso and that is this:
'The tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment o. the rent referred to in Clause, (i) of the proviso to sub-section (1) of Section 12 on three occasions within a period of eighteen months.' Section 12(i) is as follows: 'Subject to the provisions of Section .14, where the amount of two months' rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not haying been validly deposited in accordance with Section 19.'
63. It is not argued by the appellant's counsel that there has been no breach as contemplated in the proviso I have referred to of Section 14, but what is sought to be argued is that even so, the tenant is entitled to relief contemplated in Section 18(5) by reason of the fact that the tenant was a statutory tenant under the Act of 1948, and therefore, he must get also all the benefits of the Act of 1948. Inspite of the fact that this point of law has been argued by an eminent counsel, we are unable to accept the contention. The plain meaning of Section 18(5) of the Act of 1950 is this: If you want the relief, you must come within the four corners of Section 14. You must show that you have complied with the provisions of the Act of 1950 which enables you to ask for the relief to be given and which confers jurisdiction on the Court to grant the relief. The tenant cannot combine the Act of 1948 with the Act of 1950 for the purpose of getting the relief. The tenant cannot be allowed to fall back upon a portion of the Act of 1950 & of another portion of the Act of 1948. The 1948 Act has been repealed by the 1950 Act.
64. We are, therefore, unable to grant relief to the appellant under Section 18(5) of the Act of 1950.
65. The appellant has failed and there must be an ejectment. The decree of the learned Judge stands. The respondent is entitled to full costs here and in the Court below.
66. We set aside the order as to costs made by the learned Judge.
67. The appellant has asked for stay of execution. On the facts of the case, we see no reason why a stay should be granted. The appellant says that he would appeal to the Supreme Court and so the execution of the decree should be stayed. The appellant may act in such manner and take such proceedings as he may be advised but the fact that he would prefer an appeal does not by itself entitle him to have stay of execution. Having regard to the facts of the case, we are unable to accede to the prayer of the appellant for stay of execution. The stay is refused, and the appellant will be entitled to execute the decree in the usual way.
68. Certified for two counsel.
69. I agree.