Hemanta Kumar Chakrabarti v. Banalata Sen — 1949 DIGILAW 1 (CAL)

JUDGMENT Sen, J. - This appeal is by the Defendant and it arises out of a suit for ejectment instituted by his landlord. The suit was decreed by the trial Court and on appeal the decree was upheld. 2. The facts leading to the filing of this appeal briefly are as follows: The Plaintiff, Sm. Banalata Sen, instituted a suit for ejectment against the Defendant Hemanta Kumar Chakrabarti on June 23, 1945. It was alleged in the plaint that the Defendant was a monthly tenant and that the tenancy had been duly terminated by a notice to quit. 3. The bar put by para. 9(1) of the Calcutta House Rent Control Order of 1943 to the passing of a decree for ejectment was sought to be overcome by the allegation that the tenant was a defaulter. ~No other point was taken in the plaint with respect to the bar placed by the aforesaid para. 9(1) of the Calcutta House Rent Control Order of 1943. Thereafter, while the suit was pending, the Plaintiff applied to the Rent Controller for permission to institute a suit against the Defendant for ejectment on the ground that the Plaintiff required the premises bona fide for her own use; in other words, the Plaintiff sought to rely upon Clause (c) of the proviso to sub-para. (1) of para. 9 of the Calcutta House Rent Control Order of 1943. On September 3, 1945, the Rent Controller granted permission to the Plaintiff to institute a suit, stating that he was satisfied that the Plaintiff required the premises bona fide for her own use and occupation. On January 25, 1946, the Plaintiff applied for amendment of her plaint in the suit, which had already been filed on June 23, 1945. The amendment prayed for was by the addition of a paragraph stating that the Plaintiff required the premises bona fide for her own use and occupation and, on February 22, 1946, the amendment was allowed. 4. Several defences were taken and they are as follows: (a) There was no service of notice to quit; (b) There was no default in payment of rent; and (e) The suit was not maintainable on the ground of the bona fide requirement of the premises by the Plaintiff. 5. 4. Several defences were taken and they are as follows: (a) There was no service of notice to quit; (b) There was no default in payment of rent; and (e) The suit was not maintainable on the ground of the bona fide requirement of the premises by the Plaintiff. 5. The Courts below have held that there was due service of the notice to quit and that the suit was maintainable on the ground of the bona fide requirement of the Plaintiff. The Plaintiff at the trial abandoned her case of default of payment of rent. The suit was decreed on August 30, 1947. 6. Learned advocate appearing for the Appellant raises only one point. He contends that the suit was not maintainable, inasmuch as the Plaintiff had not obtained the prior consent of the Rent Controller to institute this suit and he relies upon the provisions of para. 9A(1) of the Calcutta House Rent Control Order of 1943. 7. On behalf of the Respondent the contention is that the suit 1 was maintainable, inasmuch as the consent of the Rent Controller had been obtained during the pendency of the suit. Secondly, it was argued that by reason of certain provisions in the subsequent enactments regarding house rent control, namely, by reason of the provisions of para. 26 of the Calcutta Rent Ordinance of 1946 and Section 46 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the failure to obtain permission of the Rent Controller prior to the institution of the suit would not render the suit bad. 8. In my opinion, the contention urged on behalf of the Appellant should prevail. When the suit was instituted on June 23, 1945, the Calcutta House Rent Control Order of 1943 was in force. By virtue of para. 9A(7) of that Order, if a landlord wished to institute a suit for ejectment and take a ground in that suit that the landlord bona fide required the premises for his own use and occupation, he had to obtain the permission of the Rent Controller to institute such a suit. I quote the relevant portion of para. 9A(1): No suit or proceeding by a landlord against a tenant in possession of a house for eviction of such tenant therefrom, in which any of the grounds spcified in Clause (c) of the proviso to sub-para. (1) of para. I quote the relevant portion of para. 9A(1): No suit or proceeding by a landlord against a tenant in possession of a house for eviction of such tenant therefrom, in which any of the grounds spcified in Clause (c) of the proviso to sub-para. (1) of para. 9 has been taken as a ground for such eviction shall be entertained by any Court* * * * * unless the landlord has been permitted by the Controller by an order in writing under sub-para. (3) to institute such suit or proceeding * * * * 9. The rest of the sub-paragraph of para. 9A(1) is not relevant to the question under discussion. Now, it seems to me quite clear, from the wording of the paragraph that the permission of the Rent Controller must be obtained prior to the institution of the suit. The paragraph clearly says that he must obtain permission of the Controller to institute such a suit. It does not say that it would be sufficient if he obtained the permission of the Controller to continue a suit already instituted. In the present case, when the suit was instituted, no permission had been obtained and indeed no permission was necessary as the ground specified in Clause (c) of the proviso to sub-para. (2) of para. 9 of the Calcutta House Rent Control Order, 1943, was not taken in the plaint. It was a suit for ejectment on the termination of the tenancy by a notice to quit and the protection given to the tenant from ejectment by para. 9 was sought to be removed by the allegation that the tenant was a defaulter. The Plaintiff did not state at the time of the institution of the suit that she required the premises bona fide for her own use and occupation. Learned advocate for the Respondent argues first that the suit should be deemed to have been commenced on February 22, 1946, when, permission to amend the plaint by adding a ground that the premises were required by the landlady for her own use and occupation was allowed and he points out that prior to the allowing of this amendment permission had been obtained from the Bent Controller. He relies upon the words "shall be entertained" in para. 9A. He says that para. He relies upon the words "shall be entertained" in para. 9A. He says that para. 9A prohibits the Court from entertaining a suit in which a ground specified in Clause (c) of the proviso to sub-para. (1) of para. 9 is taken unless permission of the Rent Controller has been obtained, and that the paragraph does not say that such a suit shall not be instituted without such permission: in other words, his argument is that a suit instituted without such permission may be entertained if, after the institution of the suit, permission is obtained from the Rent Controller. In my opinion, this argument cannot be given effect to having regard to the clear words of sub-para. (1) of para. 9A of the Calcutta House Rent Control Order of 1943. It is true that this para, does not say that a suit shall not be instituted without the permission of the Rent Controller. The legislature cannot restrain a person from instituting any kind of suit he likes, but the legislature has the power to direct that the Court shall not take cognizance of or entertain suits of a particular nature. It is open to a litigant to institute any kind of suit good or bad or whether permitted by the law or not. If the suit is one which the law does not allow the Court to entertain, then the institution of the suit by the party will not be of any help to him. It is, therefore, not necessary for the legislature to prohibit a party from instituting a particular kind of suit. The object of the legislature would be achieved if it prohibits Court from entertaining such suit, as it thinks should not be instituted. Further, para. 9A, sub-para. (1) of the Calcutta House Rent Control Order of 1943 clearly says that the permission of the Rent Controller is permission to institute a suit. This means that the permission is a condition precedent to the institution of the suit. If the permission has not been obtained and the suit is instituted, the Court shall not entertain it. Had the legislature intended otherwise, as suggested by learned advocate for the Respondent, it would have used appropriate words to indicate such intention. It would have said that permission could be granted by the Rent Controller to continue a suit or to prosecute a suit already instituted without permission. Had the legislature intended otherwise, as suggested by learned advocate for the Respondent, it would have used appropriate words to indicate such intention. It would have said that permission could be granted by the Rent Controller to continue a suit or to prosecute a suit already instituted without permission. The legislature has said no such thing. It has laid down that the permission should be a condition precedent to the institution of the suit. 10. As regards the argument that the suit should be treated as having been instituted on the date on which the amendment was allowed, I am of opinion that it is of no force. The suit was instituted on June 23, 1945, and because an amendment was allowed on the February 22, 1946, the date of the institution of the suit cannot be altered to the date on which the amendment was allowed. I would further observe that the Court was bound to entertain the suit, even though permission of the Rent Controller had not been obtained, because the Plaintiff had based her case on the ground of non-payment of rent. The Calcutta House Rent Control Order of 1943 gives no protection to a tenant who is a defaulter and a suit for ejectment in which an allegation is made that the tenant is a defaulter would not require any-previous permission for its institution from the Rent Controller. The suit was, therefore, entertain able in so far as it was based on the ground of the tenant's default in paying rent. That ground having been given up the suit could not proceed on the ground that the landlady required the premises bona fide for her own use and occupation inasmuch as there was no prior permission obtained from the Rent Controller to institute a suit based on such a ground. I would add further that the Rent Controller gave the Plaintiff permission to institute a suit, no permission was granted to continue the suit. Ignoring for the present the subsequent legislation and proceeding on the basis of the provisions of para. 9A(1) of the Calcuta House Rent Control Order of 1943, I must hold that the suit is not maintainable. The first ground urged on behalf of the Respondent, therefore fails. 11. I shall next consider whether subsequent legislation has had any effect on the maintainability of a suit such as the present one. 9A(1) of the Calcuta House Rent Control Order of 1943, I must hold that the suit is not maintainable. The first ground urged on behalf of the Respondent, therefore fails. 11. I shall next consider whether subsequent legislation has had any effect on the maintainability of a suit such as the present one. Learned advocate for the Respondent relies upon para. 26 of the Calcutta Rent Ordinance of 1946 and Section 45(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. Sub-section (2) of Section 45 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, is in the following terms: Any rules, orders and appointments made or deemed to have been made or anything done or any action taken or any proceeding commenced or deemed to have been done, taken or commenced under any of the provisions of the said Ordinance shall continue in force in so far as they are consistent with the provisions of this Act and shall be deemd to have been made, done, take a or commenced under the corresponding provision of this Act. 12. Put shortly it provides that proceedings commenced or deemed to have been commenced under any of the provisions of the Calcutta Rent Ordinance of 1946 shall continue in force in so far as they are consistent with the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 and that they shall be deemed to have been made done or commenced under the corresponding provisions of that Act. Paragraph 26 of the Calcuta Rent Ordinance of 1946 provides that any proceedings commenced under any of the provisions of the Calcutta House Rent Control Order of 1943 shall, on the said orders ceasing to be in operation, be deemed to have been commenced under the corresponding provisions of the Ordinance of 1946. The argument of learned advocate for the Respondent is that this suit is a proceeding commenced under the provisions of the Calcutta House Rent Control Order of 1943 and that, by virtue of para. 26 of the Calcutta Kent Ordinance of 1946, it should be deemed to have been commenced under the Calcutta Rent Ordinance of 1946 as it was pending at the time when the Calcutta Rent Ordinance of 1946 came into operation. 13. 26 of the Calcutta Kent Ordinance of 1946, it should be deemed to have been commenced under the Calcutta Rent Ordinance of 1946 as it was pending at the time when the Calcutta Rent Ordinance of 1946 came into operation. 13. Next, he argues that, by the operation of Section 45(5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, this suit shall be treated as a suit under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, as it is a suit which should be deemed to have been commenced under the Ordinance of 1946. The whole argument of learned advocate for the Respondent is based on the assumption that the word "proceedings" contained in para. 26 of the Calcutta Rent Ordinance of 1946 and Section 45 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, would include a suit for ejectment. In my opinion, this assumption is erroneous. The words "proceedings commenced under any provision of the "Calcutta House Rent Control Order of 1943" do not include a suit for ejectment. A suit for ejectment is based on the Transfer of Property Act. The Plaintiff sued the tenant for ejectment on the ground that his tenancy had been terminated. The suit was not a proceeding commenced under the provisions of the Calcutta House Rent Control Order of 1943. It was a proceeding under the Transfer of Property Act. Paragraph 26 of the Calcutta Rent Ordinance of 1945 relates to particular proceedings taken under specific provisions of the Calcutta House Rent Control Order of 1943. It does not relate to a suit instituted under the general law. The same interpretation must be given to the word "proceedings" in Section 45(12) of the West Bengal Premises Rent Control (Temporary Provisions) Act 1948. There also the words used are "Proceedings commenced under the provisions of the "Ordinance of 1940". As I have pointed out before, a suit for ejectment is not a proceeding commenced under the Calcutta Rent Ordinance of 1946 or the Calcutta House Rent Control Order of 1943. That being so, Section 45 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, has no application. The subsequent legislation regarding rent control has therefore not affected the question whether the suit is maintainable or not. 14. That being so, Section 45 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, has no application. The subsequent legislation regarding rent control has therefore not affected the question whether the suit is maintainable or not. 14. Having regard to the views expressed above I hold that the suit is not maintainable and I, accordingly, set aside the decree passed by the courts below and dismiss the suit with costs here and in the courts below.