JUDGMENT Clough, J. - This is a suit for possession of premises No. 2, Park Lane, Calcutta for arrears of rent in respect of the months of November and December, 1946, and for mesne profits. The Defendant was a monthly tenant of these premises and has been in occupation of them for a large number of years; they were, however, purchased by the Plaintiff in the month of July, 1946. The Defendant was served with a notice to quit dated the 13th December, 1946, requiring him to vacate the premises on the expiry of the last day of December. He did not vacate and this suit was filed on 14th January, 1947. Rent at Rs. 160 a month was deposited with the Rent Controller for the month of November, 1946, and thereafter. It appears that this is the rate at which the Defendant had been paying rent to the Plaintiff's predecessor. The Plaintiff, however, after purchasing the premises in July demanded Rs. 250 a month which at first was paid. The Defendant then made an application to the Rent Controller who fixed the rent at Rs. 160 a month and rent at that rate has been deposited with the Rent Controller as I have already mentioned. The premises consists of a house and eight godowns which it appears, the Defendant has been in the habit of letting out to various persons. In paragraph 3 of the plaint it is alleged that the Defendant has wrongfully and without the consent of the Plaintiff or his predecessor in title sublet portions of the said premises to different sub-tenants, and in these circumstances the Plaintiff is entitled to a decree for possession. In paragraph 3 of the written statement the Defendant has denied the statement made in paragraph 3 of the plaint and has averred that: The defendant has not sublet any part of the premises as therein alleged either within the meaning of the Rent Control Ordinance or at all. 2. Mr. Cammiade appearing for the Defendant has conceded that this is not a correct statement and has conceded that the Defendant did in fact sublet a portion of the premises of which he was a tenant. His case is that he has not sublet any part of them subsequent to 1st October, 1946. 3. The issues which were settled are as follows:-- 1. His case is that he has not sublet any part of them subsequent to 1st October, 1946. 3. The issues which were settled are as follows:-- 1. Has the Defendant sublet part of the premises before October, 1946? 2. Has the Defendant sublet part of the premises subsequent to 1st October, 1946? 3. Is the Plaintiff entitled to possession in view of the Defendant having been served with a notice to quit mentioned in the plaint? 4. It is conceded that the first issue must be answered in the affirmative. With regard to Issue No. 2 the Plaintiff called three witnesses in order to prove that the Defendant had sublet part of the premises subsequently to the 1st October, 1946. The first was one Golam Hossain who stated that he had rented one godown in the premises for the month of January, 1947; the second was Shaikh Teg Ali who keeps a Pan shop and who says that he has been in occupation of the godown formerly in possession of Golam Hossain from the month of February, 1947. The third witness was one Gajabin Bahadur who stated that he together with his wife and a family of three children has lived in a godown in these premises from 4th December, 1946. The Defendant called as a witness Mrs. Reginald Claud Joseph who resides at No. 2, Park Lane and has lived there for many years, apparently looking after the Defendant's business. She has stated that the first witness Golam Hossain never lived in the premises, that the second witness Shaikh Teg Ali has been there from the month of July, 1946, and that as regards the third witness Gajabin Bahadur, she has only seen him quite recently but that a woman who apparently is a person referred to by him as his wife has lived in the premises for over a year. 5. It is not necessary for me to deal with the evidence of the witnesses in detail. In view of the state of the evidence I am not satisfied that the Plaintiff has shown that the Defendant let out any part of these premises subsequent to 1st October last. 5. It is not necessary for me to deal with the evidence of the witnesses in detail. In view of the state of the evidence I am not satisfied that the Plaintiff has shown that the Defendant let out any part of these premises subsequent to 1st October last. The Plaintiff's first witness was not able to produce his rent receipt for the month of January, although he apparently had one; on the other hand he was able to produce rent receipts for subsequent months in respect of other premises occupied by him. As regards the second witness, he stated that prior to the month of January of this year he had been away from Calcutta altogether whereas Mrs. Joseph stated that he had come in the month of Jiffy last. It is a case of statement against statement and there is nothing which induces me to prefer his evidence to that of Mrs. Joseph's. With regard to the third witness called by the Plaintiff, it appears from the rent receipts produced by him that the person who actually paid the rent was not the witness but the woman who lived in the premises. She has not been called as a witness and it is she who, according to Mrs. Joseph, has been in occupation for a year. As she has not been called I am not prepared to hold that the Plaintiff has shown that there was a letting subsequent to the 1st October. In this state of the evidence I answer the second issue in the negative. 6. The question of general importance raised by this case is whether sec. 12, sub-sec. (1), Proviso (B) of the Calcutta Rent Ordinance, 1946, refers to a tenant who has sublet prior to 1st October, 1946, or only to a tenant who has sublet after that date. It will perhaps assist in appreciating the section, if the position as it existed prior to the enactment of the Calcutta Rent Ordinance, 1946, is mentioned. 7. By reason of sec. 106 of the Transfer of Property Act, a monthly, tenancy is terminable at any time by either party on giving 15 days' notice. The notice must of course comply with the section. This right is quite unrestricted and is exercisable at will and no excuse or reason for its exercise is required or need be shown. Under sec. 106 of the Transfer of Property Act, a monthly, tenancy is terminable at any time by either party on giving 15 days' notice. The notice must of course comply with the section. This right is quite unrestricted and is exercisable at will and no excuse or reason for its exercise is required or need be shown. Under sec. 108 (j) of the Transfer of Property Act a tenant in the absence of a contract or local usage to the contrary has the right to sublet. 8. In 1943, however, in exercise of the powers conferred by cl. (bb) of r. 81, sub-r. (2) of the Defence of India Rules the Governor made and passed the order known as the Calcutta House Rent Control Order, 1943. One of its provisions (paragraph 9) was to the effect that subject to certain proviso's no order or decree for recovery of possession of any house shall be made so long as the tenant pays rent to the full extent allowable by the Order and performs the conditions of the tenancy. This prohibition was not to be of universal application. It was not to apply in a case where the house was bona fide required by the landlord for certain specified purposes or when he could show other satisfactory cause; and it was not to apply in cases where the tenant had himself acted in one of Several particular ways. The provisos to the paragraph made it inapplicable in the following cases; where the tenant has done any act contrary to the provisions of cl. (m); (o), or (p) of sec. 108 of the Transfer of Property Act, or where the tenant has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers. 9. The Calcutta House Rent Control Order expired with the expiry of the Defence of India Act, that is to say, on the 30th of September, 1946. Off that day there was published in the Calcutta Gazette, the Calcutta Rent Ordinance, made and promulgated by the Governor in exercise of powers conferred by sec. 88 (i) of the Government of India Act. The preamble shows that the occasion for making this Ordinance was an urgent necessity in the public interest to make special provisions for the control of rents in Calcutta. The Ordinance contains various provisions regulating rents payable by tenants. 88 (i) of the Government of India Act. The preamble shows that the occasion for making this Ordinance was an urgent necessity in the public interest to make special provisions for the control of rents in Calcutta. The Ordinance contains various provisions regulating rents payable by tenants. Sec. 12 of the Ordinance enacts that notwithstanding anything contained in the Transfer of Property Act the Presidency Small Causes Court Act and Control Act, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by the Ordinance and performs the conditions of the tenancy. As in the case of Calcutta House Rent Control Order, this provision is not applicable in every case where the tenant conforms to the requirement regarding payment of rent and performance of conditions of tenancy. By reason of the proviso to the section it does not apply where the house is bona fide required by the landlord for specified purposes or where he can show any satisfactory cause or where the tenant has himself acted in one of several specified ways. Provisos (a) and (c) are to the same effect as provisos (a) and (b) of paragraph 9 of the Order of 1923. But in the Ordinance there is in addition a proviso which is new and which is as follows:-- Provided that nothing in this sub-section [Sub-sec. (1) of sec. (12)] shall apply;-- (b) Where in the absence of any contract to the contrary the tenant has without the congent in writing of the landlord sublet the premises in whole or in part. 10. It is not in this case necessary to consider exactly what kind of contract is visualised in the opening words of the proviso. No contract of a kind which can possibly be within the section has been proved in this case. But the question has to be considered where the subletting referred to includes a subletting prior to the enactment of the Ordinance. 11. Mr. Cammiade appearing for the Defendant has argued that this section gives a shield or protection to a tenant and that if such a shield is given by the Ordinance the section must not be read so as to result in the protection being taken away by something which happened before the Ordinance was enacted. 11. Mr. Cammiade appearing for the Defendant has argued that this section gives a shield or protection to a tenant and that if such a shield is given by the Ordinance the section must not be read so as to result in the protection being taken away by something which happened before the Ordinance was enacted. I do not think that is the right way to consider the matter, for it seems to me that the real question is whether what has been described as a protection or shield is given at all in the case of a tenant who has sublet prior to 1st October. It is not. I think, permissible to approach this section as if it is one that deprives person referred to in it, that is to say, tenants of any right. The enactment should be regarded as what it is--one which affords protection to a tenant against eviction, and consequently enables him to remain in occupation after the tenancy has been determined. See the observations of Gentle. J., in Kanta Mohan Mallick v. Jyotish Chandra Mukherji 49 C.W.N. 432 (1945) which was a case under Calcutta House Rent Control Order. 12. To qualify for protection he must be a tenant who regularly pays his rent and carries out all the obligations of his tenancy; but even so he will not be entitled to the protection of the section if he has done any act contrary to the provisions of cls. (m), (o), (p) of sec. 108 of the Transfer of Property Act or has been guilty of conduct which is a nuisance or annoyance to neighbours; or if in the absence of a contract he has sublet without the landlord's consent in writing. 13. It stems to me that the words used do not justify the meaning contended for by Mr. Cammiade that acts of the tenant which disqualify him for protection must be acts done after 1st October, 1946. The section cannot be so read without readings into it something which is not in fact there. The proviso must be read so as to have a meaning from the moment the Ordinance came into operation. It refers to what has happened in the past. The circumstances that there was nothing in the Order of 1943 which corresponds with proviso (b) to sec. The proviso must be read so as to have a meaning from the moment the Ordinance came into operation. It refers to what has happened in the past. The circumstances that there was nothing in the Order of 1943 which corresponds with proviso (b) to sec. 12(1) of the Order of 1946 is not of any consequence and does not affect the construction of the section which has now been enacted. 14. It seems from other provisions in this Ordinance that the word "has" when used in the Ordinance indicates a past which may be either before or after the commencement of the Ordinance; this is illustrated by sec. 9 (1). Sec. 3 (1) also illustrates what is intended to be conveyed when the word "has" is used; it is as follows. Subject to the provisions of this Ordinance, where the rent of any premises has been or is hereafter, during the continuance of ibis Ordinance, encamped so as to exceed the standard rent, the amount of such excess shall, notwithstanding any agreement to the contrary be irrecoverable. 15. The section itself shows plainly that reference to the rent which "has been increased" is a reference to an increase prior to 1st October, 1946. 16. A matter to which Mr. Meyer has drawn my attention and which is of assistance is the amendment introduced by sec. 4 of the English Rent and Mortgage Interest Restriction Act, 1923. This substituted a new section, sec. 5 in the English Rent and Mortgage Interest Restriction Act, 1920--an act whose purpose was in many respects similar to that of the Calcutta House Rent Control Order and the Calcutta Rent Ordinance. In the English Act, by sec. 5, sub-sec. (1) (h) it was provided as follows:-- 5 (1) No order or judgment for the recovery of possession of any dwelling house to which this Act applies or for the ejectment of a tenant therefrom shall be made or given unless--"the tenant without the consent of the landlord has at any time after the thirty-first day of July, nineteen hundred and twenty-three, assigned or sublet the whole of the dwelling-house or sub-let part of the dwelling house, the reminder being already sublet or....." 17. In the case of that statute it was made plain that subletting was not to have effect unless it was after the date mentioned. In the case of that statute it was made plain that subletting was not to have effect unless it was after the date mentioned. It was necessary to put in some such restrictive words if it was intended that only subletting after particular date was to have such an effect; and inasmuch as that has not been done in the case of the Indian section, it seems that the construction to be put upon the words used is that the subletting referred to may have been either before or after the 1st October, 1946. Mr. Cammiade has referred to two cases--one is Queen v. Ipswich Union L.R.Q.B.D. (1876-77) at p. 269 and the other, In re Athumney Ex parte Wilson (1898) 2 Q.B. 552-53 which illustrate the principle that ordinarily words in an enactment which have the effect of taking away a right or of establishing a right will not have retrospective effect unless that is plainly required. It does not seem to me that any such principle is involved in this case. There is no question of taking away a right or establishing a right. The effect of the enactment is to give protection to certain persons but at the same time it indicates that it will not be given to persons who have acted in a particular way. The words I think are plain and there is no reason to read into the sub-section a sentence to the effect that the subletting referred to occurred after 1st October, 1946. In my judgment, therefore, the tenant in this case is not entitled to the benefits of provision of sec. 12, sub-sec. (1) of the Calcutta Rent Ordinance, 1946. The section does not apply in his case and the Plaintiff, inasmuch as he has served a notice, is entitled to a judgment for possession. There will be a decree for vacant possession and for arrears of rent in respect of the month of November and December at the rate of Rs. 160 a month and mesne profits thereafter at the same rate until possession. The Plaintiff is entitled to costs of this suit.