JUDGMENT 1. This Rule first came on for hearing before one of us and was discharged with costs on 21st February, 1947. Since then on hearing arguments in another Rule (Civil Rule No. 486 of 1946) in which the same point under the Calcutta House Rent Control Order, 1943, arose, it appeared that the matter required further consideration, and so the previous judgment which had not yet been signed was recalled, and both cases were referred to a Division Bench for disposal. They have now been heard by the present Bench, along with an other case, S.M.A. No. 243 of 1945, in which a similar point arose under the Bengal House Rent Control Order, 1942. The Rule was obtained by the Plaintiff landlord and is directed against an order of A.K. Das, Esq., Munsif, 3rd Court, Alipore, District 24-Parganas, granting an application filed by the tenant Defendant under paragraph 9B of the Calcutta House Rent Control Order, 1943, for setting aside a decree for ejectment made by consent of parties in Title Suit No. 37 of 1944 of his Court. 2. The suit was brought on the allegation that the tenancy had been determined by the service of a notice to quit under the provisions of sec. 106, Transfer of Property Act and that the Defendant had defaulted in payment of rent. The Defendant entered appearance in the suit and denied the fact of service of notice to quit and its legality, but did not traverse the allegation that he was a defaulter. 3. The suit was decreed ex parte on 12th January, 1945. An application under Or. 9, r. 13, C.P. Code was filed by the Defendant on 10th February, 1945, resulting in J. Misc. Case No. 32 of 1945. This miscellaneous case and the title suit were compromised on 5th May, 1945, the Defendant agreeing to vacate the demised premises by the 5th of November, 1945. 4. The Calcutta House Rent Control Order was amended on 28th August, 1945, and paragraph 9B was added. 5. On 29th September, 1945, the Defendant made an application under the said paragraph for setting aside the decree made by consent on 5th May, 1945. This application was allowed by the Munsif on certain terms which were complied with by the Defendant. The present Rule was obtained by the Plaintiff against the said order of the Munsif. 6. Mr. 5. On 29th September, 1945, the Defendant made an application under the said paragraph for setting aside the decree made by consent on 5th May, 1945. This application was allowed by the Munsif on certain terms which were complied with by the Defendant. The present Rule was obtained by the Plaintiff against the said order of the Munsif. 6. Mr. Mitter, appearing in support of the Rule, has urged that decrees passed on consent of parties are outside the purview of the amended paragraph 9B (3) of the Order, and as such the Munsif had no jurisdiction to set aside the consent decree in terms of the said paragraph as it stood at the time. He has relied on two decisions of this Court, vis., Sm. Parbati Debi v. Dr. S.N. Sen 50 C.W.N. 242 (1948) and Sm. Kironsashi Dasi v. Hirendra Nath Das 50 C.W.N. 245 (1646). 7. Mr. Banerji, appearing on behalf of the Defendant Oppositie Party, has contended that the amended paragraph applies to decrees passed on consent and that the view taken in the said reported decisions is not correct. He has further contended that a later amendment of paragraph 9B (3) promulgated by a notification dated 12th June, 1946, which expressly included consent decrees within its scope under certain conditions, applied to the present case, as the Rule was pending at the date of the notification. Mr. Banerji has also relied on paragraphs 417 and 425 of the Calcutta Rent Ordinance, 1946, which was published in the Calcutta Gazette Extraordinary of the 30th September, 1946, and which came into force on the 1st of October, 1946. 8. We shall first deal with the contention raised by Mr. Mitter, viz., that at the date when the order was passed by the Munsif, he had no jurisdiction to set aside a consent decree for ejectment under paragraph 9B (3) of the Order, which applied only to decrees passed on an adjudication made by the Court. 9. The Calcutta House Rent Control Order was made on the 8th December, 1945. Mitter, viz., that at the date when the order was passed by the Munsif, he had no jurisdiction to set aside a consent decree for ejectment under paragraph 9B (3) of the Order, which applied only to decrees passed on an adjudication made by the Court. 9. The Calcutta House Rent Control Order was made on the 8th December, 1945. Paragraph 9 of the Order provided in subparagraph (1) that "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 and performs the conditions of the tenancy." A proviso to this sub-paragraph laid down that nothing in the subparagraph should apply to cases specified in cls. (a), (b) and (c). Sub-paragraph (4) of paragraph 9 provided that no tenant shall be entitled to the benefit of the paragraph unless he paid the rent within the time mentioned therein. Paragraph 10 of the Order provided for deposit of rent in case the landlord refused to accept the rent: deposits so made were obviously to be regarded as equivalent to payment of rent by the tenant. 10. The Order, however, failed to afford full measure of protection to the tenants as is exemplified by the case of Keshab Mitter v. Mrs. P. Ghosh 44 C.W.N. 728 (1845) which was decided on 24th July, 1945. The order was accordingly, amended by a notification dated 28th August, 1945. The object of the amendment was to qualify to a large extent the original provisions of the Calcutta House Rent Control Order. Paragraph 9B, subparagraphs (1) and (2), made previous permission from the Rent Controller a condition precedent to the institution or prosecution of a suit or proceeding for eviction on the ground of non-compliance with the provisions of the Order as to payment or deposit of rent, and the refusal or grant of such permission was made dependent on payment or deposit of the rent in arrear. 11. 11. Sub-paragraph (3) of paragraph 9B next provided that if a decree or order for ejectment had already been passed, but delivery of possession had not been taken, the tenant would have a right to apply for setting aside the decree or order for ejectment on payment of the rent in arrear within one month after the date of publication of the amending notification, i.e., within the 29th of September, 1945. 12. It was intended to relieve against forfeiture already incurred by reason of default in the payment of rent in terms of the original Order. It is necessary to set out sub-paragraph (3) (b) of paragraph 9B in full: (8) Where any decree or order for the recovery of possession of any home has been made on or before the 29th day of August, 1945 on the ground that the tenant in possession of such house is not entitled to the benefit of paragraph 9 by reason of his non-compliance with the provisions of this Order as to the payment or deposit of rent due by him in respect of such house, but the possession of such house has not been recovered from the tenant--a).... (b) The court by which the decree or order was made shall set aside the decree or order if (i) any application is made in that behalf by the judgment-debtor not later than the said 29th day of September, 1945, and (ii) the judgment-debtor pays to the decree-holder or deposits in court within such time as the Court may order the rent in arrears together with such portion of the cost of the suit or proceedings as may be determined by the Court. 13. The question for our decision is whether this sub-paragraph applied only to decrees passed on adjudication, and not to decrees passed on consent. The sub-paragraph was construed by Gentle, J., in Sm. Parbati Debi v. Dr. S.N. Sen 50 C.W.N. 242 (1948) and by Clough, J., in Sm. Kiron Sashi Dassee v. Hirendra Nath De 50 C.W.N. 245 (1946). In both these cases it was held that the sub-paragraph did not apply to decrees or orders for ejectment made on consent. The sub-paragraph was construed by Gentle, J., in Sm. Parbati Debi v. Dr. S.N. Sen 50 C.W.N. 242 (1948) and by Clough, J., in Sm. Kiron Sashi Dassee v. Hirendra Nath De 50 C.W.N. 245 (1946). In both these cases it was held that the sub-paragraph did not apply to decrees or orders for ejectment made on consent. The ratio decidendi of these decisions is that a decree made on consent cannot be said to be such a decree as may be set aside under the sub-paragraph, that is to say, a decree made "on the ground that the tenant in possession of such house is not entitled to the benefit of paragraph 9 by reason of his non-compliance with the provisions of this Order as to the payment or deposit of rent due by him in respect of such house." It is pointed out that a consent decree is based on the agreement of parties, and the motive for the agreement cannot be described as the ground on which the decree is made. In other words, these decisions proceed on the ground that the words used in paragraph 9B (3) are not apt enough to include decrees passed on consent of parties. With all respect,' it seems to us that the decisions do not pay sufficient attention to the principles underlying the original House Rent Control Order and the amendment thereof. 14. If the words of the amendment in subparagraph (3) of paragraph 9B are taken literally, they are wholly inappropriate in their setting. The grounds for passing a decree for ejectment are detailed in sec. 111 of the Transfer of Property Act. The Calcutta House Rent Control Order does not furnish any additional grounds for ejectment. It rather places limitations on the right of the landlord seeking to eject a tenant: in other words, it furnishes additional grounds of defence. In Tarak Chandra De v. Asoke Prosana Bal 50 C.W.N. 150 (1946), Chakravartti, J., in dealing with a similar proviso of the Bengal House Rent Control Order observed: "The Bengal House Rent Control Order did not create any new cause of action for the landlord, and the circumstances mentioned in the proviso to paragraph 10 (1) are not grounds of ejectment. The grounds remain what they were under the Transfer of Property Act. The grounds remain what they were under the Transfer of Property Act. The House Rent Control Order merely furnishes a new defence to the tenant; and the circumstances mentioned in the proviso to paragraph (v) are merely exceptions to that defence." The language used in the Order is accordingly inappropriate, and in our opinion, we should not sacrifice the underlying spirit of the Order to a too literal and strict compliance with the words used. It may be pointed out that the view taken in the above case differs from the view taken by Ormond, J., in two unreported decisions, Manick Ch. Pal v. Hari Pada Roy in Suit No. 1465 of 1942, decided on the 27th November, 1945, and Manindranath Banerjee v. Abdul Kassim Fuzlul Hug in Suit No. 1283 of 1944, decided on the 3rd December, 1945. The point was left undecided in Mrs. Julie Sen v. Surendra Mohan Roy 49 C.W.N. 700 708 (1945). The words used in sub-paragraph (3) of paragraph 9B are quite general, and there is no good reason for excluding consent decrees from its purview. Even in the case of an ex parte decree where the landlord merely alleges service of notice under sec. 106, Transfer of Property Act as a ground of eviction, and the Defendant does not appear and file a defence at all, it can hardly be said that the decree for eviction is passed on the ground of non-payment of rent, and strictly speaking, the words, as they stand, would be inapplicable to such a decree, but it is not suggested that ex parte decrees are outside the scope of the sub-paragraph. The fact that the words strictly construed, are inappropriate to consent decrees, need not, therefore, be a fatal objection to the inclusion of such decrees within the ambit of the sub-paragraph. In our opinion, sub-paragraph 9B (3) will apply to and include decrees passed on consent where either the decrees or the proceedings in the suits show that the real ground on which the landlord seeks eviction is nonpayment of rent by the tenant. The present suit was based on such a ground, and accordingly, the application under paragraph 9B (3) of the Order was maintainable. 15. In the above view, it is not necessary to express our opinion on the other contentions raised by Mr. Banerjee. The present suit was based on such a ground, and accordingly, the application under paragraph 9B (3) of the Order was maintainable. 15. In the above view, it is not necessary to express our opinion on the other contentions raised by Mr. Banerjee. For the aforesaid reasons, we think that the view taken by the Court below is right. The Rule is accordingly discharged with costs, hearing-fee being assessed at two gold mohurs.