JUDGMENT Sen, J. - This is a suit in ejectment and the only question is whether the defendant is entitled to the benefit of the Calcutta House Rent Control Order, 1943. 2. The following facts are now admitted. The defendant is a monthly tenant under the plaintiff at a rental of Rs. 40 per month, the tenancy being in accordance with the Bengali Calendar months. The plaintiff served her with a notice to quit terminating the tenancy from 1st day Jaistha 1350 B.S. (corresponding to 15th June 1943) and on her refusing to comply with the terms of the notice he filed this suit on 26th June 1943. The rent for the months of Baisack and Jaistha 1350 B.S. (corresponding to 15th April - 15th June 1943) was, in arrears and the plaintiff before suit appropriated the sum of Rs. 80 towards the rent for these months out of a deposit of Rs. 120 representing 3 months rent which the defendant had kept with the plaintiff. After suit the defendant tendered the plaintiff the sum of Rs. 40 representing the rent for the month of Assar but the plaintiff refused to accept it as he had terminated the tenancy. 3. Under the law as it stood before the Rent Control Order there can be no doubt that the defendant was liable to eviction. This is now conceded; but the defendant contends that she is protected by Para. 9 of the Rent Control Order as no rent was due from her on the date of suit, the plaintiff having appropriated Rs. 80 for the rent of Baisakh and Jaistha before suit. 4. On behalf of the plaintiff it is contended that if such appropriation be equivalent to payment of rent the defendant would still be liable to eviction because she has not carried out one of the terms of the tenancy, viz., that she would keep in deposit with the plaintiff Rs. 120 until vacant possession was given on the termination of the tenancy. By the appropriation the deposit was diminished to Rs. 40 and the term was therefore broken. The next defence taken is that after suit the defendant did not pay any rent and therefore she cannot claim the benefit of the Rent Control Order. 120 until vacant possession was given on the termination of the tenancy. By the appropriation the deposit was diminished to Rs. 40 and the term was therefore broken. The next defence taken is that after suit the defendant did not pay any rent and therefore she cannot claim the benefit of the Rent Control Order. The argument was that in disposing of a suit for ejectment the Court was bound to enquire whether on the date of passing the order all rent due till that date had been paid or deposited with the Rent Controller and that if this had not been done the Court should refuse to give the tenant the benefit of the Rent Control Order. The Court in deciding such a suit was not restricted to a consideration of the state of facts existing at the time of the filing of the plaint but was required to go into facts which occurred after that date. 5. In disposing of the first line of argument what must be ascertained are the terms of the deposit. The plaintiff has examined himself and he says that the agreement was that 3 months' rent was always to be in deposit till the relationship of landlord and tenant was determined. The contention on his behalf is that if any amount of the deposit was appropriated for arrears of rent it was incumbent on the defendant immediately to pay back that sum and to keep the deposit up to the amount of Rs. 120. 6. The defendant has not examined any witness. Counsel on her behalf admits that there was an agreement that Rs. 120 was to be kept in deposit, but he denies any obligation on the part of his client to reimburse the plaintiff if he appropriated any part of the deposit towards arrears of rent. He refers to an affidavit sworn by the plaintiff in other proceedings in connection with this suit. There the plaintiff, in giving the terms of the tenancy, referred to the deposit and said that the terms were that a sum equivalent to three months rent would be kept with the plaintiffs as security deposit for the due fulfilment of the defendant's obligations as tenant. There the plaintiff, in giving the terms of the tenancy, referred to the deposit and said that the terms were that a sum equivalent to three months rent would be kept with the plaintiffs as security deposit for the due fulfilment of the defendant's obligations as tenant. Learned Counsel points out that nothing was said there about any obligation on the part of the tenant to make up the deficiency in the deposit caused by any appropriation made by the landlord towards arrears of rent. 7. The terms regarding the deposit were reduced to writing in a receipt granted by the plaintiff to the defendant. The receipt is as follows: Received from Sreemutty Ushangini Dassi the sum of Rs. 120 (rupees one hundred and twenty only) as a security deposit for letting out to her premises No. 135 Manicktolla Street, Calcutta, at a rental of Rs. 40 (rupees forty only) per month with effect from Baisak 1343 B.S. The said security deposit will be appropriated towards rent or damages in lieu of rent after vacant possession of the said premises would be given back on determination of her tenancy. Dated 13th April 1936, 34 Fakir Chakravarty Lane, Calcutta. Sd. Sarat Chandra Dutt Sd. Satish Chandra Dutt Sd. Probodh Chandra Dutt Stamp 1 A. I am of opinion that the parties cannot go behind the terms mentioned in the receipt. Nothing is said here about any obligation on the part of the defendant to pay back as deposit any dimunition caused by appropriation by the landlord. The receipt nowhere says that the landlord may appropriate any portion of the deposit during the continuance of the tenancy for arrears of rent and that the tenant would have to replenish the deposit; it says that the appropriation for arrears was to be made after vacant possession was given after the determination of the tenancy. The terms are somewhat curious but nevertheless the parties are bound by them. If, therefore, the plaintiff appropriated a portion of the deposit towards arrears of rent prior to vacant possession being given he did it at his own risk and responsibility and cannot be heard to say that the tenant was bound to reimburse him unless he proves that the tenant agreed to do so at some time or other. If, therefore, the plaintiff appropriated a portion of the deposit towards arrears of rent prior to vacant possession being given he did it at his own risk and responsibility and cannot be heard to say that the tenant was bound to reimburse him unless he proves that the tenant agreed to do so at some time or other. If rent fell into arrears the landlord could have sued for it or he could have terminated the tenancy and sued for possession and after obtaining possession he could have appropriated the deposit or a sufficient part of it towards arrears of rent. In the present case, he did not proceed in accordance with the terms of the deposit. He appropriated part of the deposit towards arrears of rent during the continuance of the tenancy. By this action he could not impose a liability upon the defendant to replenish the deposit, a liability which was not imposed by the terms of the tenancy or by any subsequent agreement. There has, therefore, been no breach on the part of the defendant of any term of the tenancy regarding the deposit. There was also no arrears of rent due on the date of the suit as before that date the landlord appropriated part of the deposit towards the arrears of rent. The first line of the plaintiff's argument therefore fails. 8. I am of opinion that the second line must likewise fail. On the date of this suit, on the facts stated in the plaint, the landlord was not entitled to get possession of the premises. It is argued that as the tenant failed to pay rent after suit she was liable to be ejected. I am unable to accept this argument. A suit in ejectment like any other suit must be decided on the cause of action stated in the plaint. If a subsequent act on the part of the tenant gives the landlord a right to eject such act would furnish grounds for another suit based on a fresh cause of action arising on the date of the act. The effect of the act cannot relate back to the date of the institution of a suit which was not based on the cause of action arising from such act. 9. The effect of the act cannot relate back to the date of the institution of a suit which was not based on the cause of action arising from such act. 9. Learned Counsel for the plaintiff argued that though, as a general rule, a suit must be decided on the state of facts existing at the time of the filing of the suit, nevertheless, there are exceptions to the rule and that to prevent multiplicity of litigation subsequent facts may be taken into consideration. The present case, he argued, is of such a nature. He referred to the case of Nuri Mian v. Ambica Sing, 44 Cal. 47 : (A.I.R. 1917 Cal. 716), in support of his view. In my opinion this case is clearly distinguishable. Here the plaintiff sued to enforce his right of pre-emption. It was held that if at the time of passing the decree this right had ceased to exist the suit should be dismissed because the plaintiff has to establish not only that the right existed at the time of the suit but also at the time of the passing of the decree. Mookerjee J. at p. 55 of the report makes certain observations to the effect that in certain cases to avoid multiplicity of actions subsequent facts must be taken notice of by the Court. He has nowhere said, however, that when a right sought to be established by a plaintiff does not exist at the time of his suit he can get a decree enforcing such right by reason of subsequent events. On the contrary it is expressly stated that the plaintiff in order to succeed must show that he had the right at the time of suit and also at the time that the decree was about to be passed. It is one thing to say that a decree may be refused to a plaintiff who has lost his right during the pendency of a suit but quite another to say that a plaintiff who had no cause of action at the time he instituted his suit should be given a decree in that suit because subsequent facts have given rise to cause of action. The case of Rai Charan Madal & anr. v. Biswa Nath Mandal & ors., 20 C.L.J. 107 : (A.I.R. 1915 Cal. 103), was also relied on. The case of Rai Charan Madal & anr. v. Biswa Nath Mandal & ors., 20 C.L.J. 107 : (A.I.R. 1915 Cal. 103), was also relied on. This case in fact adopts a view opposed to that propounded by Learned Counsel for the plaintiff. Another case relied on by Learned Counsel is Priyambada Debee Vs. Bholanath Basu, AIR 1933 Cal 534 . This case says no more than this viz: that a Court should take notice of subsequent events to shorten litigation but it nowhere says that if no cause of action exists at the time of suit the plaintiff may nevertheless succeed on a cause of action which has arisen subsequently and which was not the basis of the suit as framed in the plaint. There is in my opinion no substance in this argument urged on behalf of the plaintiff. 10. Next it was argued that the phraseology of para. 9 of the Rent Control Order indicates that if after the suit rent fell into arrears a decree for ejectment would be granted even if there were no arrears at the time of suit. Paragraph 9 is as follows: No order or decree for the recovery of possession of any house shall be made so long as the tenant pays rent to the full extent allowable by this order etc. Mr. Banerjee for the plaintiff contends that the tenant in order to save himself from ejectment must show that he has paid rent up to the date on which the decree is about to be passed. He bases his argument on the use of the present tense in describing the duties of the tenant. I cannot accept this view. To do so would be to introduce serious difficulties in the trial of every suit. How is the Court to know what the case of the parties are without pleadings of any sort? How is the defendant to know what case the plaintiff is going to make regarding default in payment? When are documents to be discovered if such be the law? How is the Court to know what the case of the parties are without pleadings of any sort? How is the defendant to know what case the plaintiff is going to make regarding default in payment? When are documents to be discovered if such be the law? In my opinion the present tense in this paragraph is used not to describe anything that the tenant does or may do at the time when the Court's order is made but to describe the conduct of the tenant which entitles him to plead the Rent Control Order i.e. the conduct of the tenant up to or at the time the suit was filed. I am supported in this view by the decision in Ismail Dada Bhamani Vs. Bai Zuleikhabai, AIR 1944 Bom 181 . In my opinion if the tenant can show that he has complied with the requirements of para. 9 at the time when the suit was instituted he is entitled to its protection. 11. In the present case the tenant has shown this and the suit must therefore be dismissed with costs including reserved costs.