Nashiban Bibi v. Parul Bala Dutta — 1958 DIGILAW 209 (CAL)

JUDGMENT 1. BOTH these Rules are directed against the same order. Civil Rule No. 700 of 1957 was obtained by the landlords while Civil Rule No. 1093 of 1957 was obtained by the tenant. The circumstances under which the aforesaid Rules were issued may be summarised as hereinafter appearing The plaintiffs landlords (petitioners in Civil Rule No. 700 of 1957), who are themselves tenants of the first degree, instituted a suit for eviction of the tenant defendant No. 1, Sm. Parul Bala Dutta who is the petitioner in Civil Rule No. 1093 of 1957. Two other persons were made defendants in the said suit, namely, Ram Chandra Das and Shyam Chandra Das, on the allegation that they were being set up as sub-tenants by Parul Bala Dutta above-named. The premises in dispute is a portion of a house, bearing number 82/1 Cornwallis Street, in the town of Calcutta. The admitted rent is Rs. 99 per month, payable according to the English Calendar. It was pleaded in the plaint that the tenant defendant No. 1 had defaulted in payment of rent from the month of November 1951. It was further pleaded that the tenant did acts contrary to the provisions of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. 2. SUMMONS in the suit was served on defendant No. 1 on November 27, 1956. Defendant No. 1 entered appearance on December 12. 1956. On December 18, 1956 the tenant defendant No. 1 filed an application stating that all rents upto September 1956 had been paid by her and praying for permission to deposit in court rents from October 1956. The aforesaid application was apparently treated as a dispute raised by the tenant regarding arrears outstanding within the meaning of section 17 (2) of the West Bengal Premises Tenancy Act and was set down for hearing on the 21st of December 1956. At the hearing of the application it was admitted on behalf of the defendant No. 1 that she had not paid rent to the landlords as and by way of rent at any time upto September 1956. What was said was that she had paid certain sums of money to the Corporation of Calcutta in payment of the owner's share and also occupier's share of the consolidated rates. What was said was that she had paid certain sums of money to the Corporation of Calcutta in payment of the owner's share and also occupier's share of the consolidated rates. If these payments were adjusted against the amount said to be due as arrears of rent nothing would be due and owing by her on account of rent upto September 1956. 3. THE owners of the premises are admittedly Chandra Bejoy Srimani and others, the superior landlords of the plaintiffs. The name of the predecessor-in-interest of the plaintiffs one Sahamat Ali (who was himself during his life time the tenant of the first degree), is recorded in the books of the Corporation of Calcutta as the occupier of the premises. The sums said to have been paid by tenant defendant No. 1 towards the owner's share of taxes were ignored by the court below. I am of opinion that the court below was right in so doing because there is nothing to show that defendant No. 1 was liable to pay the said sums or even if liable she was entitled to claim adjustment of the said sums towards rent payable by her. The owner's share of taxes was payable by the superior landlords Chandra Bejoy Srimani and others. These were not payable by the plaintiffs. Between the superior landlords and the defendant No. 1 there was no privities of contract. If for reasons best known to defendant No. 1 she paid sums of money legally payable by the superior landlords the Srimanis, she may have remedy against them. But for such payments she cannot claim relief from the plaintiffs. 4. SO far as the occupier's shares of taxes are concerned, the court below came to the conclusion on the evidence adduced in the case that a sum of Rs. 534/8/3 had been paid by the defendant No. 1. This is a finding of fact which is binding on me in these revision applications. In calculating the arrears of rent due by defendant No. 1 the court below came to a curious conclusion which is quoted below :- "I do not, however, think that the arrears are to be calculated from November 1951. The West Bengal Premises Tenancy Act 1956 came into force on 31. 3. 56. In calculating the arrears of rent due by defendant No. 1 the court below came to a curious conclusion which is quoted below :- "I do not, however, think that the arrears are to be calculated from November 1951. The West Bengal Premises Tenancy Act 1956 came into force on 31. 3. 56. The previous arrears, if any, are not arrears under this Act and cannot be ordered to be deposited under section 17 (1) of the West Bengal Premises Tenancy Act, 1956. The arrears under this Act are from March 1956 to November 1956, at the rate of Rs. 99 per month. The total would be Rs. 891. The defendant No. 1 is therefore liable to deposit in court or to pay the plaintiffs the sum of Rs. 356/7/9p together with interact at the rate of 8-1/3 per cent from the due dates within one month from the date of service of summons, viz., 27. 11. 56. The application of defendant No. 1 is disposed of accordingly". The amount Rs. 356/7/9p was arrived as by subtracting Rs. 534/8/3 from Rs. 891 and was found to be due as arrears of rent. The amount directed to be deposited by the court below was deposited by the defendant No. 1 within time. The grievance made by the landlords, in the Rule obtained by them, is twofold. It is urged in the first place that the court below was in error in holding that arrears prior to March 1956 need not be deposited. In the next place, it was alleged that the court below was in error in deducting occupier's share of taxes said to have been paid by defendant No. 1, from the arrears of rent due and in directing only the balance to be deposited. 5. THE grievance made by the tenant in the Rule obtained by her is limited to a single point, namely, that the court below was in error in not directing deductions to be made of all payments whether in respect of the owner's share or occupier's share of taxes made by the tenant defendant No. 1. In my judgment, the court below was clearly wrong in holding that the arrears due and outstanding beyond the month of March 1956 need not be deposited. In my judgment, the court below was clearly wrong in holding that the arrears due and outstanding beyond the month of March 1956 need not be deposited. The expression that "the tenant shall, within one month of the service of the writ of summons on him, deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made a default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made", as in section 17 (1) of the West Bengal Premises Tenancy Act, 1956, is not limited to defaults made after the Act came into force. There is no such qualification to be found within the four corners of the 1956 Act. Necessarily, the legislature did not intend to discriminate between the arrears of rent which accrued due after the date when the 1956 Act came into operation and the arrears due before that date. The expression must be given its natural meaning and in its natural meaning the payment or deposit contemplated is in respect of all arrears of rent legally recoverable in payment of which the tenant may have made default. The court below was therefore in error in directing payment of rent in arrears only from March 1956. 6. TURNING now to the second grievance made by the landlords, I am of opinion that generally a tenant is not entitled to claim adjustment of all payments made by him on behalf of the landlord, even though he is interested in such payment, against rent payable by him. A person who is interested in the payment of money which another is bound by law to pay and therefore pays it, is entitled to be reimbursed by the other. A tenant may, therefore, sue the landlord for re-imbursement of the money which he had to pay in order to save his own interest and may recover the money so paid. But in order to entitle a tenant to claim adjustment of such payment against rent payable by him something more is required, namely, some sort of contract or understanding that such payment shall be adjusted against rent account. Such adjustment cannot be made by the tenant alone without the concurrence of the landlord. But in order to entitle a tenant to claim adjustment of such payment against rent payable by him something more is required, namely, some sort of contract or understanding that such payment shall be adjusted against rent account. Such adjustment cannot be made by the tenant alone without the concurrence of the landlord. No question of any claim by the defendant by way of set off arises in this case because the present suit is not for recovery of money. The only prayer made in the suit is for possession of the disputed premises. In the present case, however, the tenant had to pay Corporation rates due by the owners and also the occupier because she has been served with a notice of demand by the Corporation of Calcutta, under section 246 of the Calcutta Municipal Act, 1951. It appears further from certain correspondence exchanged between the landlords and the tenant [marked Ext. C to C (4)] that on a previous occasion payment by the tenant towards Corporation rates had been adjusted against the rent payable by the tenant. Therefore, it would not be unreasonable to infer that there was some sort of understanding between the landlords and the tenant that Corporation taxes paid by the tenant would be adjusted against rent payable by her. That is the view on which the court below ordered a deduction of Rs. 534/8/3 to be made from the rent in respect of which the defendant was a defaulter. In the circumstances aforesaid, I do not interfere with this part of the judgment of the court below. I hold, however, that the court below was wrong in directing arrears of rent from March, 1956 only being deposited. Even after the adjustment of Rs. 534/8/3, rent for many more months would be due and in arrears. I, therefore, held that the tenant defendant is liable to pay or deposit all rents in arrears and legally recoverable less a sum of Rs. 534/8/3, which should be treated as a sum already paid and adjustable against arrears of rent account. 7. IN the result, I set aside the judgment of the trial court in so far as it directed deposit of rent from March, 1956 only and affirm the other findings and the orders made in the said judgment. 534/8/3, which should be treated as a sum already paid and adjustable against arrears of rent account. 7. IN the result, I set aside the judgment of the trial court in so far as it directed deposit of rent from March, 1956 only and affirm the other findings and the orders made in the said judgment. The matter will now be remanded to the court below with a direction to that court to take account of the legally recoverable rent in the payment of which default may have been made by the defendant No. 1, The court below will direct the defendant to pay to the landlords or deposit in court all rents legally recoverable and not paid by the defendant No. 1 less a sum of Rs. 534/8/3 which sum should be treated as paid by the defendant No. 1 and adjusted against arrears of rent due. 8. IN the view that I take of this matter, the contention raised by the landlords petitioners in Civil Rule No. 700 of 1957 succeeds in part and the Rule is made absolute to the extent indicated above but I make no order as to costs. The matter will now be remanded to the court below for rehearing in the light of my observations contained herein. The contention of the tenant petitioner in Civil Rule No. 1093 of 1957 fails in too and subject to the order of remand made in Civil Rule No. 700 of 1957 this Rule is discharged. There will be no order as to costs in these Rules.