Keshab Chandra Sarkar v. Hemenlal Gupta — 1957 DIGILAW 115 (CAL)

Judgment 1. THIS is a defendant's appeal in a suit for ejectment instituted by the landlord on service of a notice to quit and on the allegation that the defendant was not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 because he had committed three defaults of two months each within a period of eighteen months. The default alleged in the plaint was from the month of July 1947. In the plaint, the plaintiff did not state the exact period of default upon which he relied but based his claim upon an allegation that the default started from the month of July 1947. 'the tenancy was held by the appellant at a monthly rent of Rs. 14/ -. 2. THE defence set up by the defendant was that he was entitled to deduct a certain amount which he had spent for repairs of the holding under an agreement with the landlord. This defence has not been believed by the court of appeal below and Mr. Das Gupta, appearing for the appellant, has not also challenged the finding on that point. The appellate court, however, has found that the default which disentitled the defendant from claiming any relief under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1960, is default in payment of rent from the month of July 1947 upto the month of January 1948. The suit was instituted on the 11th September 1950. The West Bengal Premises Rent Control Temporary Provisions) Act, 1950, came into operation on the 30th of March, 1950. The entire period of default, therefore, is before the Act of 1950 came into operation and the question that has been argued before us is whether the landlord is entitled to rely upon a pre -Act default for the purpose of invoking the aid of section 12 (1) (i) read with section 14 (3) proviso of the Act of 1950. There is no dispute between the [parties that the suit having been instituted on September 11, 1950, is to be governed by the provisions of the Rent Control Act of 1950 which was in force on that date and both the courts below have decided the case on that footing. There is no dispute between the [parties that the suit having been instituted on September 11, 1950, is to be governed by the provisions of the Rent Control Act of 1950 which was in force on that date and both the courts below have decided the case on that footing. The question, therefore, is whether the tenant has lost the protection of that Act on the ground of default under section 12 (1) (i) read with the proviso to section 14 (3). The learned Munsif who tried the suit held in favour of the tenant on a strange ground. He held that whatever might have been the position with regard to payment of rent prior to March, 1950, there was no doubt that the tenant made valid deposits in the office of the Rent Controller from March, 1950 and the landlord must be deemed to have accepted those deposits and to have waived his right to eject the defendant on the ground of his previous default. This view has been rightly reversed by the lower appellate court, according to which, however, the default in payment of rent for seven months from July, 1947 to January, 1948 attracts the operation of the proviso to section 14 (3) of the Act of 1950 and precludes the tenant from claiming the protection of the Act of 1950. It is the legality of this view that is challenged before us. 3. MR. Das Gupta, appearing for the appellant, contends that the defaults contemplated by section 12 (1) (i) and the proviso to section 14 (3), must be defaults that took place after the commencement of the Act of 1950, that is, after the 30th of March, 1950. On a. plain construction of the proviso to section 14 (3), this contention appears to be correct. That proviso is in these terms: "provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in clause (i) of the proviso to subsection (1) of section 12 on three occasions within a period of eighteen months." 4. That proviso is in these terms: "provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in clause (i) of the proviso to subsection (1) of section 12 on three occasions within a period of eighteen months." 4. THE default contemplated by the proviso must be a default in the payment of rent "referred to in clause (i) of the proviso to sub-section (1) of section 12." If, on the date of default, clause (i) of the proviso to section 12 (1) was not in existence, there-could be no default within the meaning of the proviso to section 14 (3. Similarly, under clause (i) to the proviso of section 12 (1), the tenant loses the protection of that section if the amount of two months' rent legally payable and due from him is in arrears by not having been paid within a specified date. The expression "legally payable" can only mean legally payable under the Act of 1950. The loss of protection under this section, therefore, is also the result of a default occurring after the commencement of the Act of 1950. In this case, the entire period of default found by the court of appeal below, expired not only before the commencement of the Act of 1950 but also before the commencement of the Act of 1948 which came into force on December 1, 1948. The default which disentitles a tenant from claiming the protection of the Rent Control Acts is a creature of the Act which was in force on the date of the default, and it is well-known that the different Rent Control Acts made different provisions about the default which would take away the statutory protection of the tenant. It would, therefore, be extremely strange if a tenant were to be treated as a defaulter within the meaning of a statute which was not in existence on the date of the default and which came into operation more than two years after the expiry of the period of default. Mr. Chaudhury cited before us the case of Babulal v. Kamala (1) 58 C. W. N. 84, where Das and Mitter, JJ. Mr. Chaudhury cited before us the case of Babulal v. Kamala (1) 58 C. W. N. 84, where Das and Mitter, JJ. held that in an application under section 14 (4) filed after the coming into operation of Act LXII of 1950, the court has jurisdiction to direct the tenant to pay rent for the period during which his tenancy stood determined ipso facto under section 12 (3) of the Act of 1948 and further held that on such an application the court has also jurisdiction to order deposit of rent which accrued prior to the Act of 1950. This decision, however, is no authority for the proposition that the default made by the tenant would be a default within the meaning of the proviso to section 14 (3) which default, as I have already said, must be a default in payment of rent referred to in section 12 (1) proviso (i). Babulal's case (1) (supra), therefore, does not support the respondent's contention that pre-Act default would attract the penalty of the proviso to section 14 (3). The view I have taken, about the effect of pre-Act default, is supported by some observations in the majority judgment of the Full Bench case of Ajit v. Surendra (2) 57 C. W. N. 627. The question before the Full Bench was whether in giving relief to a tenant under section 18 (5), section 14 of the Act was to be applied with or without the proviso and in considering that question, their lordships had to consider the question whether pre-Act defaults would attract the penalty of the proviso to section 14 (3. At pages 637-638, Chakravartti, C. J., in delivering the majority judgment, made the following observations: "it will appear that even if the defendant had committed default for two months on three occasions within a period of eighteen months before the institution of the suit, those would be defaults committed before the Act of 1950. At pages 637-638, Chakravartti, C. J., in delivering the majority judgment, made the following observations: "it will appear that even if the defendant had committed default for two months on three occasions within a period of eighteen months before the institution of the suit, those would be defaults committed before the Act of 1950. The proviso to section 14 (3) would not hit him on account of those defaults, because those would not be defaults referred to in clause (i) of the proviso to section 12 (1)." Again at page 639: "defaults committed before the Act of 1950 or non-payment between the dates of that Act and the amending Act (meaning Act LXII of 1950 which came into force on the 30th November, 1950) would not attract the proviso and are therefore immaterial." Accordingly, both upon a plain construction of the section and also upon the authority of the Full Bench case, I hold that the default committed by the appellant between July, 1947 and January, 1948 is not sufficient in law to attract the penalty of the proviso to section 14 (3) of the Act. Conscious of this difficulty, Mr. Choudhury, appearing for the respondent, relied upon a default for a totally different period. Accordingly to him, the suit having been instituted on the 11th September, 1950, eighteen months before that date would take us to the 11th March, 1949 and he argued that the tenant committed defaults from March, 1949 up to February, 1950 which would, according to Mr. Choudhury, attract the penalty of the proviso to section 14 (3. There are two reasons why this argument cannot be accepted. In the first place, even this period expired before the commencement of the Act of 1950 and defaults committed during this period are immaterial for the purpose of determining the question whether the tenant was a defaulter within the meaning of the proviso to section 14 (3. In the second place, it is not correct to say that the tenant made any default during the period March, 1949 to February, 1950. He deposited the rent with the Rent Controller for the entire period but those deposits are said to be invalid because the tenant failed to deposit the rent from December, 1948 to February, 1949. In the second place, it is not correct to say that the tenant made any default during the period March, 1949 to February, 1950. He deposited the rent with the Rent Controller for the entire period but those deposits are said to be invalid because the tenant failed to deposit the rent from December, 1948 to February, 1949. The validity of the deposit from March, 1949 to February, 1950 is therefore challenged on the only ground that the rent for three months prior to that date had not been deposited. There is no substance in this argument. The validity of a deposit of rent for a particular month cannot be challenged on the ground that the rent for a previous month or months is in arrears. 5. MR. Choudhury relies upon section 12 of the Act of 1948 which requires the tenant to pay to the extent allowable by the Act and as section 12 is referred to in section 19 relating to deposit, it is argued: that if there is any arrears, the tenant; cannot be said to have paid to the extent allowed by the Act and therefore the deposit is not valid. The expression, "to the extent allowable by the Act" for the purpose of the deposit under section 19, refers to the amount of rent for a particular month and not to the period for which it is due. In other words, it means that the tenant must deposit the entire rent recoverable under the Act for a particular month and not merely a fraction of the monthly rent. Therefore, I hold that the deposits from March, 1949 up to February, 1950 are valid deposits. 6. MR. Choudhury then wanted to show that the tenant made defaults for other periods, which would bring the case within the mischief of the proviso to section 14 (3); but we did not allow him to do so first, because that will be converting a second appeal into a first appeal on facts; secondly, because the landlord cannot be permitted to embark upon a roving enquiry and to invite the court to consider one case after another to examine whether there was any default within the meaning of the statute. The definite case upon which the plaintiff succeeded before the lower appellate court was the default from July, 1947 to January, 1948 and as that case has failed, it is not open to him to all back upon any other case. In the result, this appeal must be allowed, the decree made by the court of appeal below set aside and the decree made by the learned Munsif restored, though on a totally different ground. There will be no order as to costs.