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Jamuna Prasad Chowrasia Vs. Kishorilal Poddar - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberSpecial Bench Reference in F.A. No. 565 of 1965
Judge
Reported inAIR1973Cal204,77CWN278
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(4); ;West Bengal Premises Tenancy (Amendment) Act, 1968
AppellantJamuna Prasad Chowrasia;kishorilal Poddar
RespondentKishorilal Poddar;jamuna Prasad Chowrasia
Appellant AdvocateS.P. Sen and
Respondent AdvocateC. Tandon, Advs.
DispositionAppeal allowed
Cases ReferredSmt. Rampiyari v. Ramautar.
Excerpt:
- arun k. mukherjea, j. 1. this appeal has come up for hearing and disposal before this special bench upon a reference made by a. n. ray and s. k. mu-kherjca, jj. under chapter ii, rule 1 (ii) of the appellate side rules of this high court. the facts and circumstances under which this appeal arises are briefly as follows :--the defendant jamuna prasad chowrasia was a monthly tenant under the plaintiff kishorilal poddar in respect of a shop-room on the ground floor of premises no. 31b, banstala gali, calcutta. the rent that the defendant used to pay was rs. 24/- per month according to the hindi calendar month commencing from badi 1 to sudi 15 of each month. the plaintiff terminated the defendant's tenancy by a notice to quit dated magh badi 2, 2020 s.y. corresponding to 18 december, 1963......
Judgment:

Arun K. Mukherjea, J.

1. This appeal has come up for hearing and disposal before this Special Bench upon a reference made by A. N. Ray and S. K. Mu-kherjca, JJ. under Chapter II, Rule 1 (ii) of The Appellate Side Rules of this High Court. The facts and circumstances under which this appeal arises are briefly as follows :--The defendant Jamuna Prasad Chowrasia was a monthly tenant under the plaintiff Kishorilal Poddar in respect of a shop-room on the ground floor of premises No. 31B, Banstala Gali, Calcutta. The rent that the defendant used to pay was Rs. 24/- per month according to the Hindi Calendar month commencing from Badi 1 to Sudi 15 of each month. The plaintiff terminated the defendant's tenancy by a notice to quit dated Magh Badi 2, 2020 S.Y. corresponding to 18 December, 1963. The plaintiff alleges that the defendant had defaulted in payment of rent for more than four months within a period of 12 months since the month of Shravan 2020 S.Y. and that the defendant was not entitled to any protection from eviction under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act of 1956). The defendant did not quit the premises upon determination of the tenancy and the plaintiff filed a suit against him for ejectment in the City Civil Court.

2. The defendant contested the suit and in his written statement contended among other things that he was not a defaulter in payment of rent as alleged by the plaintiff. The defendant alleged that on 15 January, 1964 he had paid to the plaintiff a sum of Rs. 180/- in Jasidih at the rate of Rs. 30/- per month as rents inclusive of electric charges for the months from Shravan 2020 S.Y. to Pous 2020 S.Y. and that the plaintiff had promised to issue rent receipts for this payment on his return to Calcutta by the middle of February, 1964. The defendant further alleged that he had paid the rent of Rs. 24/- and a sum of Rs. 6/- as electricity charges to the plaintiff on 12 February 1964 at the Gaddi of the plaintiff at Basak Street, Calcutta.

3. The following issues were framed by the learned trial Judge for determination :--

(1) Is there the relationship of landlord and tenant between the plaintiff and the defendant, as made out in the plaint?

(2) Is the alleged notice duly served upon the defendant? If so, is the same legal, valid and sufficient in law as required under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and Section 106, Transfer of Property Act?

(3) Is the defendant defaulter in payment of rent on 4 occasions within a period of 12 months by making no payment from Shravan 2020 S.Y. as alleged? Is the defendant's plea of payment true?

(4) Is the plaintiff entitled to a decree in ejectment as prayed for?

4. After considering the evidence adduced by both parties in this suit the learned trial Judge found in favour of the plaintiff on all the issues and granted a decree of ejectment against the defendant. The defendant thereupon came on appeal from that judgment before this High Court and the appeal was heard by a Division Bench consisting of A. N. Ray and S. K. Mukherjea, JJ. It was contended on behalf of the appellant before the aforesaid Division Bench that the learned trial Judge's finding on fact rejecting the defendant's story about payment of rent and holding that the defendant was a defaulter in payment of rent for more than four months within a period of 12 months was wrong. Further, during the hearing of the appeal an application was made on behalf of the appellant before the Appellate Court that various deposits made by the appellant-should be taken into consideration by the Appellate Court by way of fresh evidence. It was alleged in that application that the1 appellant had, within one month from the date of service of summons of the ejectment suit, filed two applications before the learned trial Judge under Sub-section (1) and Sub-section (2) respectively of Section 17 of the Act of 1956. Reference was made in that application before the Appellate Court to an order passed by the trial Judge in which it had been recorded that the parties had agreed that the disputes raised in the application under Section 17 (2) of the Act of 1956 might be heard at the time of the trial and without prejudice to the respective rights of the parties, the defendant would go on depositing rent from Shravan to Pous 2020 S.Y. with statutory interest at the rate of Rs. 24/- per month in terms of Section 17 (2) of the said Act within a month from 3 July 1964 which was the date of the order. The order also directed the defendant, with consent of the parties, to deposit the rent from Shravan to Pous at the rate of Rupees 24/- per month within a month from 3 July 1964 without prejudice to the defendant's right to raise the plea of payment and also to question the plaintiff's competency to file the suit. Pursuant to the said order dated 3 July 1964 the defendant it appears, deposited the sum of Rupees 168/- being the rent for seven months at the rate of Rupees 24/-per month from the month of Shravan to the month of Magh 2020 S.Y. together with Rs. 10/- as interest. The defendant thus deposited a total sum of Rupees 178/-. The defendant further went on depositing current rent from month to month beginning from the month of Fal-poon 2020 S.Y. in the trial Court till the disposal of the ejectment suit. The appellant contended that by making these payments pursuant to the order of 3 July 1964 the defendant had made such deposits as he was required to make in terms of Section 17 (2) of the said Act of 1956 so that the defendant was entitled to relief under the proviso to Sub-section (4) of Section 17 of the said Act as amended by the West Bengal Tenancy (Amendment) Act of 1968. The appellant in the aforesaid application asked for permission to produce the challant had made. Without this evidence the appelbnt could not h;tvc invoked the provisions contained in the new proviso to Sub-section (4) of Section 17. A. N. Ray and S. K. Mukherjea, JJ. permitted the appellant to rely on these challans. Difficulties arose, however, regarding the interpretation of the true scope and effect of the new proviso to Sub-section (4) of Section 17 of the Act. Sub-section (4) of Section 17 as amended by the West Bengal Premises Tenancy (Amendment) Act of 1968 is as follows :--

Section 17 (4) :

'If a tenant makes deposit or payment as required by Sub-seel ion (1), Sub-section (2) or Sub-section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord :

Provided that a tenant shall not be entitled to any relief under this Sub-section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months'.

5. It was contended on behalf of the appellant that since the appellant has made the deposits in terms of Sub-scclion (2) of Section 17 and since he has not obtained any relief under Sub-section (4) on any earlier occasion, no decree or order for delivery of possession to the landlord on the ground of default in payment of rent by the appellant could be made by reason of the aforesaid proviso. It was argued on behalf of the appellant that the amended proviso contemplated that if only a defaulting tenant after having obtained any relief from a Court under Sub-section (4) in a suit again commits the same default and is again sued for ejectment he cannot in those circumstances get any relief under Sub-section (4) in the subsequent suit. In other words, the appellant contended that since he had not obtained the aforementioned relief from eviction in an earlier suit he was entitled to the relief in the present suit.

6. As against this it was argued on behalf of the respondent that the second default contemplated in the amended proviso to Sub-section (4) of Section 17 is not a default which is the subject-matter of a second suit and that all the defaults referred to in the proviso are defaults in the same suit. The contention in substance was this that where a defaulting tenant has made a default in payment of rent for four months for the second time within a period of 12 months the tenant would not be entitled to the relief given by Sub-section (4) of Section 17.

7. Upon these rival contentions Ray, J. accepted the construction suggested on behalf of the respondent-landlord while lans in proof of the deposits that the appel S. K. Mukherjea, J. favoured the construction suggested by the appellant.

8. In view of this difference of opinion their Lordships referred the marten under Chapter II, Rule 1 (ii) of the Appellate Side Rules of this High Court for disposal of the appeal by a Special Bench.

9. We should mention here that in an earlier appeal viz. Md. G. A. Hossain and Co. v. Binani Properties Private Ltd., (1969) 73 Cal WN 591 which also had come up before a Bench consisting of Ray, J. and S. K. Mukherjea, J. the same point as to the exact effect of the amended proviso to Sub-section (4) of Section 17 was involved. On that occasion also their Lordships came to different opinions on this point. That appeal was, however, decided on other grounds on which their Lordships had come to an agreed decision that the landlord would succeed in getting a decree of ejectment against the tenant. It is only when the same point arose again in the present appeal where the only ground of eviction was the ground of default their Lordships decided to refer the entire appeal for determination by a Full Bench.

10. In my opinion, it helps a lot to understand the amended proviso if we try to construe it against the background of recent legislative history and also read it in the context of the entire Act of 1956. It is not necessary for this purpose to start from a point earlier than the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. In the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, hereinafter referred to as the Act of 1950, Section 12 gave a general protection against eviction to all tenants under certain conditions mentioned in various sub-clauses of the proviso to that sub-section. The Act of 1950, therefore, provided certain safeguards for the tenant even though the landlord has satisfied all the conditions that are necessary to throw him out under Section 106 of the Transfer of Property Act. The right of eviction that a landlord exercises arises all the time under the Transfer of Property Act., The Act of 1950 or the Act of 1956 merely provides in certain special circumstances for a measure of protection to the tenant against an order of eviction. Such protection is given in general language in Sub-section (4) of Section 12 of the Act of 1950. But the protection is curtailed to a certain extent by being taken away in certain cases which are set out in the shape of defeasance clauses enumerated under the proviso to Sub-section (1) of Section 12. In effect the Act contains a system of checks and balances some of which operate against the landlord and some against the tenant. Sub-section (1) of Section 12 of the Act of 1950 operates against the landlord while the proviso to that subset ion balances the protection given to tenants by operating against the tenants. In the Act of 1956 corresponding provisions are contained in Section 13 of the Act of 1956. Following the same scheme as that of the Act of 1950, the Act of 1956 provides for protection of the tenants against eviction in Sub-section (1) of Section 13. The exceptions to such protection, i.e. to say, the circumstances in which the general protection afforded by Sub-section (1) is defeated are to be found in the various sub-clauses of Sub-section (1). One of these exceptions is the case where a tenant has made a default in the payment of rent for two months within a period of 12 months or for two successive periods in cases where rent is not payable monthly : vide Clause (1) of Sub-section (1) of Section 13. This clause defines the nature of the default in payment of rent which would deprive a tenant of the general protection from eviction given in Sub-section (1) of Section 13. Section 17, as it originally stood, gave a further locus penitcntiae to the defaulting tenants by providing that even such a defaulting tenant would get the benefit of the protection of Se'ction 13 by curing his default by paying up the arrcar rents.

11. Sub-sections (1) and (2) of Section 17 provide as follows :--

'17. When a tenant can get the benefit of protection against eviction-

(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant (shall, subject to the provisions of subsection (2), within one month) of the service of the writ of summons on him for where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance) (deposit in Court or with the Controller or pay to the landlord) an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent per annum from the date when any such amount was payable upto the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

(2) If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the court shall-

(a) having regard to the rate at which sent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order; and

(b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.'

12. It is obvious that these Sub-sections look after the interest of the landlord by making it obligatory on the tenants to pay up all arrear rents as well as current rents. They even try to secure the interests of both the landlord and the tenant when there is a dispute as to the quantum of rent payable. If a tenant discharges the obligations contained in Sub-section (1) or Sub-section (2) of Section 17 the tenant can go on defending the suit. If, however, tho tenant does not take the opportunity given to him for payment of the rent with regard to which there are the allegations of default in the manner laid down in Sub-section (1) and Sub-section (2), the tenant will not have any right to put up any of the defences against eviction which are given to him under this Act. Under Sub-section (3) of Section 17 the Court will strike out the defence against delivery of possession and then proceed with the hearing of the suit. Sub-section (3), therefore, is a provision operating against the tenant. Sub-section (4) as it originally stood provided that if the defaulting tenant makes a deposit OB payment in accordance with the requirements of Sub-section (1) or Sub-section (2) of Section 17, no decree or order for delivery of possession would be made against that tenant by the Court but the Court may allow only such costs as it may deem fit to the landlord. This is certainly a provision in favour of the tenant. But this protection is at once balanced by attaching a proviso to it which favours the landlord. That proviso originally ran as follows :--

'Provided that a tenant shall not be entitled to any relief under this sub-section, if he has made default in payment of rent for four months within a period of 12 months.'

13. The proviso is not to be read in isolation from the substantive provision of Sub-section (4). Indeed, the main Sub-section and the proviso should be read together. The immunity from a decree or order Cor eviction on the ground of default in payment of rent will be available to the tenant only if he does not come within the mischief of the proviso, i.e. to say, the tenant will be deprived of the protection given in Sub-section (4) if the tenant in question has made default in payment of rent for four months within a period of 12 months. The net eifect of the proviso is this that a tenant who has been found guilty of having made a default in payment of rent for a period of more than four months in twelve months will not earn the right to protect himself by making the payment of Sub-section (1) or Sub-section (2) of Section 17.

14. This was the nature of the proviso as it stood before the amendment by the West Bengal Premises Tenancy Amendment Act of 1969 (Act XXX of 1969). Section 2 of that amendment Act inter alia contains the following provisions :--

In Section 17 of the West Bengal Premises Tenancy Act 1956 (hereinafter referred to as the said Act),--

*****

(3) In Sub-section (4) -- ** **

Clause (b) : for the existing proviso,the following proviso shall be substituted,namely,-- 'provided that a tenant shall notbe entitled to any relief under this Sub-section if, having obtained such a relief oncein respect of the premises, he has againmade default in the payment of rent forfour months within a period of 12 months.'

15. This amendment by adding a few words to the proviso has changed the character of the proviso altogether. The original proviso was completely unfavourable to the tenant in the sense that it provided a measure of protection in favour of the landlord by depriving certain defaulting tenants of the protective provisions of subsection (4) of Section 17. After the amendment the legislature has again introduced a further clement of protection for the tenant. The proviso as it stands now after the amendment is not altogether a provision to the detriment of the tenant. Indeed, the proviso even at the Jast moment gives another locus pcnitentiae to the defaulting tenant. It is nothing but a last minute reprieve to the defaulting tenants. While the original proviso laid down that a tenant who has committed default in respect of four months in course of 12 months will not have the benefit of subsection (4), the amending proviso says that even such a tenant will have the benefit provided he has not committed such a serious default again after having obtained once before 'such a relief in respect of the premises'. That is to say, the tenant will have to go only if he has already obtained the relief against eviction provided under Sub-section (4) of Section 17 and has again committed a default in the payment of rent for four months within a period of 12 months. The present proviso combines, therefore, two elements. It combines an element which is in favour of the landlord and an element which is against the tenant. As a result, the original intent of the proviso which was all to the benefit of the landlord has now been restricted considerably by providing what, I believe, can best be described as an 'escape hatch' for the defaulting tenant.

16. The controversy that has arisen is over the exact meaning of the word 'relief' in the amended proviso. Is the relief to be obtained in a suit? The appellant contends that no decree or order for delivery of possession is to be made against a defaulting tenant who has not already obtained relief from a Court in respect of his liability to be evicted for a default in respect of four months within a period of 12 months and has again committed the same kind of default. The respondent, on the other hand, construes the amended proviso to mean only this that no tenant will be entitled to the relief of securing the forbearance of the Court from passing a decree of eviction against him if he has committed default in the matter of payment of rent for more than one period of four months within a period of 12 months. According to this contention the 'relief' that was envisaged by the amended proviso may be a relief in the same suit so that a tenant who has, for instance, committed default in the payment of rent for 8 months in a period of 12 months will not be entitled to claim any relief because his claim to forbearance is only in respect of the first four months and as soon as the Court has exercised forbearance by ignoring his default for the first four months the tenant has forfeited the right of claiming further forbearance from the Court in respect of his default for the remaining three (four?) months. Such a tenant, it is argued, will be liable to eviction, because having obtained relief once in respect of the first four months, he is found by the Court to have committed the default again.

17. We have considered both these contentions very carefully and we have no doubt in our mind that the contention of the appellant is the correct contention in this controversy. An analysis of the proviso makes it impossible in our opinion to reject this contention as incorrect.

18. Let us look at the. words of the altered proviso a little more carefully. The proviso says that 'a tenant shall not be entitled to any relief under the sub-section, if, having obtained such relief once in respect of the premises, he has again made default.....' (underlining is mine). Therefore, the proviso disentitles a tenant to relief under Sub-section (4), if having obtained such relief under the sub-section once, he has made another default. In other words, a tenant who has obtained relief under Subsection (4) on one occasion cannot again claim the same relief if he makes another default of the same kind. Since the relief under Sub-section (4) can be obtained only in a suit when but for the proviso a tenant should have had his defence struck off under Sub-section (3), it is obvious that the altered proviso contemplates two proceedings. In the first proceeding whether it is a suit or an appeal, a defaulting tenant is contemplated as having already been given relief by the Court in so far as the Court has refrained from passing a decree or order of eviction. In the second proceeding which again must be a suit or a pending appeal the same tenant who has already obtained relief under Sub-section (4) in the first proceeding is again confronted with the risk of being thrown out on the ground of default in payment of rent for four months in a period of 12 months. It is such a tenant who will, by reason of the amended proviso be refused the protection of a Court for the second time. This to our mind is the irresistible construction of the amended proviso as it stands.

19. Though, in our opinion, the words of the altered proviso are quite enough to support the construction that we are giving to this proviso it may not be out of place to refer to the Statement of Objects and Reasons with which the amending Act, namely, Act IV of 1968 was introduced in the Legislatures. I should mention here that Sisir K. Mukherjea, J., has also done the same thing in his Lordship's judgment in the case of Benani Properties Ltd., (1969) 73 Cal WN 591. We are quite alive to the fact that under the ordinary rules of construction of statutes it is not permissible to rely on the Statement of Objects and Reasons. But the Supreme Court has on various occasions supported the reference to the Objects and Reasons for the limited purpose of ascertaining the conditions which obtained at the time of introduction of the statutes and which led to the introduction of the legislation and, in particular, for ascertaining the extent and urgency of the evil which is sought to be remedied by a particular statute. The Statement of Reasons for the enactment of Act IV of 1968 contains the following passages :--

'Under Section 17 of the West Bengal Premises Tenancy Act, 1956 as it stood he-fore the amendment by the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 (West Bengal Ordinance No. VI of 1967) a tenant who has defaulted in payment of rent for four months within a period of 12 months was debarred from avoiding ejectment by making a deposit or payment as required by Sub-section (1) or Sub-section (2) of Section 17. The Court had no powers, even in cases of real hardship, of extending the time for making the deposit since the provisions of the Act were causing severe hardship to the tenants in some cases, it was considered necessary by the Government of West Bengal to give the tenants some relief by amendment of the Act. Accordingly, the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, was promulgated by the Governor of West Bengal. The main provisions of the Ordinance were as follows :--

(a) *****

(b) *****

(c) the tenant had the opportunity for once only to avoid ejectment on the ground of default in payment of rent, irrespective of the period of default by making deposit or payment of all arrear dues. On any subsequent occasion, however, default in payment of rent for four months within a period of twelve months debarred him from getting any relief.

The West Bengal Premises Tenancy (Amendment) Second Ordinance was promulgated by the Governor of West Bengal to continue with certain modifications the provisions of the First Ordinance.

The proposed measure seeks to replace the Ordinance No. II of 1968.'

20. It is abundantly clear that the Legislature thought that a tenant should have more than one opportunity for avoiding ejectment on the ground of default in the payment of rent irrespective of the period of default, by making deposits or payments of arrear dues under Section 17 (1) or 17 (2) of the Act. Provisions were made in West Bengal Ordinance VI of 1967 to give this second opportunity to the tenant. The West Bengal Premises Tenancy (Amendment) Second Ordinance also contains that provision. Act IV of 1968 was enacted by the legislatures to replace the Ordinance No. II of 1968. Therefore, the legislative intent of the proviso must be what the statement of reasons refers to as object of the Ordinance. We respectfully agree with S. K. Mukherjea, J., when his Lordship made the following observation in (1969) 73 Cal WN 591 at p. 618 :--

'Tt may, therefore, be said that the sponsors of the amending statutes, with the object of mitigating the severity of the law and the harshness of procedure, sought to give the tenant an opportunity for once only to avoid ejectment, irrespective of the period of default, by making deposit or payment of all arrcar dues prescribed by law.'

21. At this stage we should take notice of certain decisions of different Benches of this High Court on the question that we are trying to settle in this appeal. In Gourdev Mukherjee v. Purnima Devi, (1968) 72 Cal WN 155 a Division Bench of the High Court had to consider the effect of this proviso. The proviso was at that time contained in the Ordinance which preceded Act XXX of 1969. In that case the defaulting tenant deposited an amount which was determined by the trial Court as payable by him in terms of Section 17 (2) of the Act of 1956. When the suit was being heard the learned trial Judge found that the tenant was a defaulter for more than four months, namely. June, July. August and September, 1959 and on that footing refused to give the benefit of Section 17 (4) of the Act by reason of the proviso to that sub-section. The plaintiff's suit for eviction was decreed. An appeal against that decree was dismissed by the learned Subordinate Judge and the matter came up on Second Appeal from that Appellate decree before a Division Bench of this Court. By that time the material law was charmed under the New Ordinance and the proviso to Section 17 (4) had been altered with retrospective effect. P. N. Mukher-jee. J., observes in referring to (his altered proviso as follows :--

'Under this new or altered proviso, the tenant would not he prejudiced in the matter of relief under the Section 17 (4) (main part) provided that the default for four months was only of the first instance or occasion or. in other words, that there was only one default for four months', (underlining is mine). His Lordship then went on to say that since in the case before their Lordships 'there has been no second default for four months on ,the part of the tenant and he has complied with the provisions of Section 17 (2) read with Sec, 17 (1) in the matter of the relevant deposits' the decree for ejectment could not stand. If we can say so-with respect the use of the words 'second default for four months' was unfortunate in so far as it gave rise to an impression that in their Lordships' opinion a second default for four months in the same suit would deprive the tenant of the protection of the proviso.

22. In (1968) 72 Cal WN 155. P. N. Mookcrjec, J., did not say and. in fact, did not have any occasion to say that if the tenant's default had been for more than four months he would have lost his right of relief under Sub-section (4) of Section 17. It is to be remembered that in that case the tenant's total default was only for four months, namely, June, July, August and September, 1959. I do not. therefore, read that judgment as supporting the construction which found favour with Ray, J. As S. K. Mukherjea. J., points out in his Lordship's judgment in the case of Binani Properties Private Ltd., (1069) 73 Cal WN 591. the judgment of P. N. Mookcrjec, L, in Gour-dev Mukherjee's case, (1968) 72 Cal WN 155 case makes a clear distinction between the default of the first instance or first occasion and defaults made on the second occasion. In the words of S. K. Mukherjea. J. 'As T understand this judgment the test which has been laid down is whether the default is made on the first occasion, or on the second occasion, that is before the relief has been obtained once under Section 17 (4) or after such relief has been obtained. The test is not whether the default on the first occasion is for four months or for a longer period. There is no question that if default is made on the second occasion for four months within a Period of 12 months, the tenant disentitled himself to relief. That is why. P. N. Moo-kerjee, J., in granting relief under Section 17 (4) pointed out that there has been no second default of four months.'

23. The same Bench gave another judgment in Bata Shoe Co. (P) Ltd. v. Ayesha Bibi Matwali, (1968) 72 Cal WN 241 where the same point was also involved. Their Lordships found that on the findings of default of the learned trial Judge in that case the tenant would be a defaulter as a monthly tenant for more than four months within a period of 12 months and thus disentitled to the protection of Section 17. The effect of the new ordinance could not be construed in that case because it was found that the Ordinance would not be attracted to that case.

24. The same point aeafn arose for consideration in (1969) 73 Cal WN 591 which was decided by a Bench consisting of Ray, J. and S. K. Mukherjea. J. S. K. Mukherjea. L, was of the opinion that the second default referred to in the amended proviso to Sub-section (4) of Section 17 of the Act refers to a default in a second or subsequent suit. Ray. J., however, held differently and thought that a second default in the same suit would disentitle a defendant tenant to relief. Ray, J., relied on the case of Gour-dev Mukherjee v. Purnima Devi. (1968) 72 Cal WN 155 and the Bata Shoe Company'8 case. (1968) 72 Cal WN 241 for this proposition. It is interesting to note that S. K. Mukherjea, J., did not construe Gourdev Mukhcrjee v. Purnima Devi. (1968) 72 Cal WN 155 and (1968) 72 Cal WN 241 as laying down the proposition that a tenant is not entitled to relief under Section 17 (4) of the Act if he has made default in payment of rent for more than four months although he has made payments or deposits under Section 17 (1) or 17 (2) op 17 (2) (a) as required by Section 17 (4), Though their Lordships differed on this point their Lordships did not refer the case either to a third Judge or to a Full Bench because their Lordships confirmed the decree of eviction on other grounds.

25. When the same point arose in the present appeal where the only ground of eviction is the ground of default their Lordships have referred the entire appeal for determination to a Special Bench.

26. The point arose also in Radharaman Sohanlal v. Abanindra Nath Milter. (F. A. No. 468 of 1965 (Cal.)) and Ray and Mukherjea, JJ., have referred that appeal also for determination by a Fuller Bench.

27. In the meantime the same point came for decision before A. K. Sen, J., in a second appeal, namely, Niranjan Singh v. Davalhari Paul, A. F. A. D. No. 926 of 1966 (Cal.). In his Lordship's unreported decision in that matter his Lordship had to construe the new proviso to Section 17 (4) of the Act. Two rival contentions were propounded before his Lordship. One was that only when a tenant who has once obtained a relief in the form of a dismissal of a suit against him under Sub-section (4) again makes a default for four months that the amended proviso comes into operation and the tenant-defendant becomes disentitled to any further relief LI ruler Sub-section (4). The other contention was that the relief referred to in the proviso need not be relief in the nature of dismissal of the suit, that it may be relief of not being liable to lose the protection under Sub-section (4) by making the deposit in terms of Sub-section (1) and Sub-section (2) of Section 17 of the Act in respect of defaults for the first four months rind that if such a tenant makes further default of another four months the law does not offer any relief to him. Both parties before his Lordship relied on the decision of dourdev Mukherjee v. Purnima Devi, (1968) 72 Cal WN 155 (Supra). Sen. J. after analysing the provisions of Section 17 held that a tenant would not be entitled to relief under Sub-section (4) if (a) he has obtained, once. a relief Under the same sub-section and (b) again makes any default for four months or more. His Lordship' further held that there is no restriction to the quantum of default for which a tenant may be given relief under Sub-section (4) if it was for the first occasion.

28. There is one other decision which we should notice in this connection, namely, Smt. Rampiyari v. Ramautar. AIR 1968 Madh Pra 87. It is a decision of the Full Bench of the Madhya Pradcsh High Court regarding a particular proviso in Madhya Pradesh Accommodation Control Act (41 of 1961) which was very similar in terms to the proviso we have been construing. Section 12 of the Madhya Pradesh Act is similar to Section 17 of the West Bengal Act. In order to avoid a decree for eviction on the ground specified in Section 12 (1) (a) of the Madhya Pradesh Act the tenant has to make an initial deposit in terms of Section 13 (1) or Section 13 (2) of the Act and also to continue depositing current rent during the pendency of the suit.

29. A tenant who has made all the deposits in terms of Section 13 will be protected from eviction. He is, however, deprived of this benefit if in any period intervening between the dismissal of the landlord's suit for eviction because of the tenant's compliance of Section 13 and the filing of a fresh suit on the ground specified in Section 12 (1) (a) of the Madhya Pradcsh Act the tenant makes a default in payment of rent of the accommodation for three consecutive months. A proviso to Sub-section (3) of Section 12 provides that the benefit of the main part of Sub-section (3) of Section 12 shall not be given to a tenant even if he makes payment or deposit as required by Section 13 if. having obtained 'such benefit once in respect of any accommodation, he again makes a default in payment of rent of that accommodation for three consecutive months'. Dixit, C. J., who delivered judgment for the Full Bench in construing the proviso observed :--

'It is easy to see that the default spoken of in the proviso is not a default occurring in the suit itself. It appears to be default he-fore the institution of the suit. The benefit of the main part of Sub-section (3) of Section 12 being available only when there is full compliance by the tenant of Section 13 in the matter of payment or deposit of rent, if the tenant makes a default in the payment or deposit of rent in the suit itself, the question of giving him the benefit of the main part of Sub-section (3} of Section 12 or of Section 13 (5) cannot obviously arise. This makes it plain that the default referred to in the proviso to Sub-section (3) of Section 12 is not a default occurring in the suit itself'. Dixit. C. J., further observed :--

'Again, the expression 'if, havinc obtained such benefit once in respect of any accommodation he again makes a default...' occurring in the proviso also points to the conclusion that the default in the payment of renl for three consecutive months disentitling the tenant to claim the benefit of the main part of Section 12 (3) is the one anterior to the institution of the suit. A tenant obtains the benefit of the main part of Subsection (3) of Section 12 or Section 13 (5) not during the pendency of the suit, but when the landlord's suit founded on the ground mentioned in Section 12 (1) (a) is dismissed as a result of the tenant earning the benefit of the main part of Section 12 (3) or Section 13 (5) by complying with Section 13 of the Act.'

30. The learned Advocate for the appellant relics strongly on this decision. In our opinion, this decision is quite helpful on the point in spite of the fact that Madhya Pradesh Statute is somewhat different from the West Bengal statute. Tn the Madhya Pradcsh statute. the section that gives protection to a tenant from eviction is Section 12 which corresponds to Section 13 of the West Bengal Act. Sub-section (3) of Section 12 of the Madhya Pradesh statute corresponds to Section 17 (4) of the West Bengal statute. If we juxtapose the two sections side by side the similarity will become clear.

Section 12 (3) of the Madhya Pradesh ActSection 17 (4) of the West Bengal Act of 1956.

'12 (3) No order for evictionof a tenantshall be made on the ground specified in clause (a)of sub-section (1). if the tenant makes payment ordeposit as required by Section 13:

17 (4). If a tenant makes a deposit or payment its required bysub-section (1), sub-section (2) or sub-section (2-A) no decree or order for delivery of possessionof the premises to the landlord on the ground of default in payment ofrent by the tenant shall be made by the Court but the Court may allow suchcosts as it may deem fit to the landlord:

Provided that no tenant shall beentitled to the benefit under this sub-section, if having obtained such benefit once inrespect of any accommodation, he again makes a default in the payment of rentof that accommodation for three consecutive months.

Provided that a tenant shall notbe entitled to any relief under this sub-section if, having obtained such relief once inrespect of the premises, he has again made default in the payment of rent forfour months within a period of twelve months.'

13 (5). If a tenant makes deposit or payment as required by sub-section(1) or sub-section (2) no decree or order shall bemade by the Court for the recovery of possession of the accommodation on theground of default in the payment of rent by the tenant, but the Court mayallow such costs as it may deem fit to the landlord.'

31. In reading the Madhya pradesh statute one should remember that Section 13 of that statute corresponds to Section 17 (1) and Section 17 (2) of the Calcutta statute. The decision of Madhy pradesh High Court confirms the reasoning that we have adopted in construing the amended proviso to subsection (4) of Section 17 of the Act of 1956.

32. Before parting with this aspect of 'the matter we would like to deal with the seven objections formulated by A. N. Ray, J., in his Lordship's judgment in (1969) 73 Cal WN 591 to the construction of the proviso that we have now favoured. Here are the objections formulated by A. N. Ray, J. in his own language :--

'First, this construction is reading many new words and provisions into the statute. Secondly, this construction is opposed to the views expressed by the Bench decisions. Thirdly, the grant of relief in pending suits and appeals is not dissociated from defaults. Fourthly, the process of administering relief is in the pending suit or appeal. Fifthly, to hold that relief will be given irrespective of the number of defaults in the first suit robbing the words 'has again made default in the payment of rent for four months within a period of 12 months', of their operation and effectiveness in the grant of relief. Sixthly, to hold that the words 'having obtained relief once' mean full relief regardless of the number of defaults in the first suit is to introduce new words of a second suit for the purpose of reading the words 'has again made default' as referable to a second suit. Finally, it may be noticed that previous to the amendment the tenant will be entitled to relief provided he has not after having obtained relief once relating to possession on the ground of non-payment of rent for four months has not again made default for payment of rent for four months within a period of 12 months.' (Underlining is mine)

33. I shall deal with these objections seriatim as hereunder :--

(i) Tt is not clear what are the new words and provisions which are according ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord :

Provided that a tenant shall not be entitled to any relief under this Sub-section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.'

to his Lordship necessary to read into the proviso in order that the construction suggested by S. K. Mukherjea, J., and accepted by us now may be upheld. In our opinion, the one word 'such' which precedes the word 'relief' in the proviso makes it quite clear that the relief was under Sub-section (4) which had been mentioned just before the proviso and the word 'obtained' makes it quite clear that relief under Sub-section (4) had been given to the tenant in the past The word 'once' and the word 'again' in the proviso are also very significant and make it abundantly clear that they are referable to two legal proceedings.

(ii) As we have already shown our construction is not opposed to the views expressed by P. N. Mookerjee, J., in (1968) 72 Cal WN 155 and (1968) 72 Cal 241. It is true that there is one involved expression in the first of these two decisions which lends some suspicion that P. N. Mokerjee, J., favoured the construction sought to be given by A. N. Ray, I. But reading the judgment as a whole we do not think P. N. Mookerjee, J., really supported the construction suggested by A. N. Ray, J.

(iii) This objection is not very clear to us. The tenant is to be given relief provided he has not been given such relief already in an earlier suit for the prescribed default.

(iv) There seems to be no objection in principle to give relief in the pending suit or appeal. In fact, the purpose of the provisions made in Sub-section (1) and Sub-section (2) of Section 17 as well as the substantive provisions of Section 17 (4) is to give relief in a pending suit. The provision for such relief was made conditional and was to be refused in a case where the tenant had been a defaulter in the payment of rent for four months in a period of 12 months. This limitation upon the relief has, however, now been relaxed further. Such a tenant who has been guilty of the specified default twice and who has already obtained the relief once in regard to his first default would be denied the relief contemplated in Sub-section (4). If the substantive provision by Sub-section (4) is not wrong it is not understood why a further check in favour of the tenant included in the proviso by the amendment will be Wrong in principle.

(v) This is not really a criticism. It is true that a new idea has been introduced and a further protection given to the tenant in the amendment of the proviso. The words quoted by Ray, J., have not been robbed of their effectiveness in the matter of granting relief. In fact, the scope of relief has been widened and the protection of the tenant has been made more effective than before by the amendment of the proviso.

(vi) This is not an objection either. The clear intention of the legislature was to give a defaulting tenant a second chance to pay up his arrear dues and earn the protection given in Sub-section (4) of Section 17. The statement of objects and reasons of the Act IV of 1968 makes that clear. The legislature apparently thought that such an opportunity should be given to the tenant and the lack of such opportunity in the earlier framing of the statute was an evil which is sought to be remedied by the present amendment. Besides, as I have already said the word 'such' and the word 'again' in the amended proviso make reference to a second suit almost inevitable. The fact that certain words have a necessary implication cannot be a criticism of those words.

(vii) This is not a criticism either. This is clearly exposition of what is the effect of the amended proviso.

34. In the view that we have taken about the construction of the amended proviso to Sub-section (4) of Section 17 the appellant in this case will come within the ambit of the protection of the proviso. It is nobody's case that the appellant has on an earlier occasion obtained relief under Subsection (4) of Section 17. Therefore, the appellant will be entitled to relief under the Sub-section (4) this time. That means if the tenant has made deposit or payment as required by Sub-section (1), Sub-section (2) or Sub-section (2-A), no decree or order for delivery of possession of the premises to the landlord shall be made on the ground of default in the payment of rent by the tenant.

35. The only point which remains for us to consider, therefore, is as to whether the appellant has made the deposit or payment which will entitle him to the protection of Sub-section (4). Mr. Tandon appearing for the respondent before us sought to make out a case that the appellant has not complied with the requirement of either Section 17 (1) or Section 17 (2). In our view the respondent cannot be allowed to raise this contention now after having agreed about the consent order that was passed by the trial Judge on the tenant's application under Section 17 (2) of the Act of 1956. As we have already stated, both the landlord and the tenant had agreed before the learned trial Judge that the disputes between the parties regarding the merits of the application will be heard at the time of the trial and that the respondent would, in the meantime, deposit rent from Shravan to Pous 2020 S. Y. with statutory interest at the rate of Rs. 20/- per month in terms of Section 17 (2) of the Act with effect from the date of the order. They had further agreed that this payment was without prejudice to the tenant's right to agitate at the time of trial that he had already paid the disputed rents before. It appears that pursuant to the consent order, the tenant deposited a total sum of Rs. 178/- and further went on depositing current rents from month to month beginning from the month of Falgoon 2020 S. Y. in the trial Court till the disposal of the suit. Since this order had been complied with by the tenant and the landlord had taken advantage of such compliance, it was no longer open to him to contend that the order was not strictly in terms of Section 17 (2) of the Act of 1956 and that consequently the tenant has not complied with the requirements of Section 17 (2).

36. In view of the foregoing consideration there is no doubt about the result of this appeal. It is nobody's case that the appellant has obtained relief under the said proviso in an earlier suit. It is clear, therefore, that no decree of eviction or no order-for delivery of possession of the suit premises could be made in the present suit, Though the decree passed by the learned trial Judge was quite correct at the point of time when the learned trial Judge delivered this judgment it has now become untenable in view of the amendment of the proviso to Sub-section (4) of Section 17, and we must allow the appeal,

37. In these circumstances we have to set aside the decree of the learned trial Judge. We order, however, that in view of the peculiar circumstances of the case and also in terms of the amended proviso that the appellant should pay costs to the respondent both in the Court below and in the appeal and all previous proceedings in connection with this appeal.

Sabyasachi Mukharji, J.

38. I agree.

M.M. Dutt, J.

39. I agree.


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