SANJIB KUMAR MUKHERJEE v. NATHUMAL RAMPURIA — 1972 DIGILAW 185 (CAL)

( 1 ) THESE appeals make a group of together six appeals* involving more or less the same questions. They were referred to a Special Division Bench under Rule 1, sub-rule (ii) of Chap. II of the Appellate Side Rules by a Bench constituting the late D. N. Sinha, C. J. and myself on June 19, 1968. The reference was made on the ground that they raise one or two common questions of law which are of great public importance. The Hon'ble Chief Justice, thereafter, constituted the present Special Bench to dispose of these appeals. Since we have to dispose of the entire appeals we shall have to deal with them separately resolving the questions of law as they arise. This is what we propose to do as hereunder: appeal NO. 550 OF 1662. The original defendant, Satish Chandra Mukherjee was a tenant under the plaintiffs in respect of a shop-room on the ground floor of premises No. 8a, Lal Bazar Street, Calcutta, at a monthly rental of Rs. 30. 94 payable according to the English calendar month. The entire premises at 8a, Lal Bazar Street, Calcutta, was transfer to the plaintiffs, by Smt. Sushila Debi Rampuria and Sri Joychand Lal Rampuria who were the liquidators of Rampuria Properties Ltd. , by a registered deed of conveyance dated July 13, 1958. Prior to this transfer the tenant, namely, Satish Chandra Mukherjee, had defaulted in payment of rents since September, 1957. He, however, deposited the rents for September, 1957 to April, 1958 on May 29, 1958. After the transfer, the plaintiffs as the new landlords served through their lawyers a notice of ejectment dated September 13, 1958, on the said tenant-defendant. By the said notice the plaintiffs determined the defendant's tenancy and called upon him to quit and vacate the aforesaid shop-room No. 5 on the expiry of the last day of October, 1958. The defendant having failed or neglected to do so the plaintiffs filed a suit against the said defendant-tenant for eviction. By the said notice the plaintiffs determined the defendant's tenancy and called upon him to quit and vacate the aforesaid shop-room No. 5 on the expiry of the last day of October, 1958. The defendant having failed or neglected to do so the plaintiffs filed a suit against the said defendant-tenant for eviction. In the plaint, it is claimed that the said defendant would not be entitled to any protection from eviction under the provisions of the West Bengal Premises Tenancy Act of 1956 (hereinafter referred to as the said Act) by reason of the fact that eh tenant had defaulted in the payment of rent to his previous landlords as well as to the plaintiffs who were the successor-in-interest of those landlords 'since September 1957 and also for four months within a period of 12 months'. Before the suit had been filed on January 2, 1958, the tenant had deposited rents for August, September and October 1958 on December 1, 1958. The defendant contested the suit and filed a written statement. Sometime latter the original defendant having died his heirs, namely, Sri Sanjib Mukherjee, Sri Ranjit Mukherjee, Sri Manindra Nath Mukherjee, Sri Samita Mukherje and Mrs. Satish Chadnra Mukherjee were substituted as the defendants in lieu and place of the original defendant. I shall hereinafter refer to the substituted defendants merely as the defendants. The defendants Manindra Nath Mukherjee and Samita Mukherjee filed a written statement on November 12, 1960, and an additional written statement on March 24, 1961. ( 2 ) CERTAIN issues and additional issues were framed for determination at the time of the trial upon the pleadings of the parties. They are as follows: (1) Is there any relationship of landlord and tenant between the parties in respect of the suit room, i. e. the shop-room No. 5 on the ground floor of premises No. 8a, Lal Bazar Street, Calcutta ? (2) Is the defendant a defaulter in the payment of rent for four months during the period of twelve months before institution of the suit ? (3) Was the notice of ejectment served on the defendant ? If so, is the notice legal, valid and sufficient ? (2) Is the defendant a defaulter in the payment of rent for four months during the period of twelve months before institution of the suit ? (3) Was the notice of ejectment served on the defendant ? If so, is the notice legal, valid and sufficient ? (4) To what relief, if any, are the plaintiffs entitled ?additional ISSUE (1) Are the defaults in the payment of rent committed by late Satish Chandra Mukherjee, the predecessor-in-interest of the substituted defendants and/or the substituted defendants prior to July 13, 1958, the date of purchase of the suit premises by the plaintiff to be tacked to the defaults committed by the said late Satish Chandra Mukherjee and/or the substituted defendants from July 13, 1958, onwards ? (2) Can the plaintiffs take advantage of the defendants in payment of rent committed by Satish Chandra Mukherejee and/or the substituted defendants when the plaintiffs' predecessor-in-interest were the landlords and/or the owners of the suit premises ? after evidence has been adduced on behalf of both sides the learned trial Judge came to the following decision: (1) There was a relationship of landlord and tenant between the parties. (2) (a)it is not a fact that there had been non-payment of rent for all months since September, 1957 to the date of judgment. (b) Defendants were defaulters in payment of rent for all months of August, September and October, 1958 because of paying them after the due date. (c) Further, the defendants having deposited the rents from September, 1957 to April, 1958 on May 29 were defaulters in the payment of rent within the meaning of the Act for the months of September, 1957 to March, 1968, and, as such, the defendants were not entitled to claim any protection from eviction under the Act. (3) The plaintiffs as transferee landlords could take advantage of the defaults made by the tenant before the transfer of the property. In short, the defendants were not entitled to protection from eviction under the Act for having made defaults in the payment of rent for four months within a period of twelve months from the commencement of the Act to the date of the suit. (4) The ejectment notice had been properly served and was proper and valid. In short, the defendants were not entitled to protection from eviction under the Act for having made defaults in the payment of rent for four months within a period of twelve months from the commencement of the Act to the date of the suit. (4) The ejectment notice had been properly served and was proper and valid. ( 3 ) ONTHESE findings the learned trial Judge decreed the suit against the defendants and ordered that the plaintiffs would get khas possession of the suit premises by removing the defendants therefrom. ( 4 ) THE defendants came on appeal to this Court. After the appeal had been filed in 1962 the said Act of 1956 was amended. On August 26, 1967, the West Bengal Order VI of 1967 was promulgated. The hearing of the appeals commenced four days latter, i. e. to say on August 30, 1967. During the hearing of the appeal the appellants tenants made an application on September 13, 1967, praying for orders extending the time for deposit of the amount of rents in arrear together with interest and also for fixation of the number of instalments by which payments were to be made. The appellants contended that they were entitled to make this application by reason on section 2 of the West Bengal Order VI of 1967 by which new sub-section (2a) has been inserted after the original sub-section (2) of section 17 of the said Act. The Division Bench which were hearing the appeal dismissed the application by an order passed on May 7, 1968. This decision was based mainly on the ground that an application for extension of time under sub-section (2a) of section 17 could not be made without complying with the provisions of sub-section (2b) which required that an application for extention of time was to be made before the expiry of the time specified in sub-section (1) of sub-section (2) of section 17 and, since this time had expired long before the application was made, the protection given under sub-section (2a) was not available to the appellants. A copy of the order of the Division Bench is to be found at p. 16 of the second pat of the special Paper Book prepared for the Special Bench. After dismissing the application the Division Bench again proceeded to hear the appeal on February 19, 1968, referred it to a Special Division Bench. A copy of the order of the Division Bench is to be found at p. 16 of the second pat of the special Paper Book prepared for the Special Bench. After dismissing the application the Division Bench again proceeded to hear the appeal on February 19, 1968, referred it to a Special Division Bench. ( 5 ) IT will be remembered is this connection that sec. 17 had been extensively amended at first by the West Bengal Ordinance VI of 1967 and then on expiry of the Ordinance by Act IV of 1968 the provisions of which in turn were re-enacted by Act XXX of 1969. ( 6 ) THE principal question of law that induced the Division Bench on February 19, 1968, to make a reference to the case to the Special Bench was to the question as to whether the amendment of the proviso to sub-section (4) of section 17 of the Act of 1956 introduced by the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, and later re-enacted by the West Bengal Premises Tenancy (Amendment) Ordinance, 1968, and later re-enacted in Act IV of 1969 and Act XXX of 1969 were ultra vires the provisions of the Constitution of India. When the appeal came up for hearing before the Special Bench Mr. P. N. Chandra, appearing for the respondents landlords, challenged the vires of the New proviso to sub-section (4) of section 17 of the said Act. Since for all practical purposes and particularly in the matter of amendment of sub-section (4) of section 17 of Act XXX of 1969 is a re-enactment of Act IV of 1968 it would be enough for us to confine our attention to Act XXX of 1969. In order to appreciate the challenge of the respondents to the vires of the Act of 1969 it is necessary to know the context in which the challenge arises. I am, therefore, indicating below this context. ( 7 ) IT will be remembered that section 17 of the Act of 1956 gives an opportunity to defaulting tenants to avoid eviction by paying up all arrears of rent and by making payments of current rents during the pendency of the suit. Sub-sections (1) and (2) of section 17 contain these provisions. ( 7 ) IT will be remembered that section 17 of the Act of 1956 gives an opportunity to defaulting tenants to avoid eviction by paying up all arrears of rent and by making payments of current rents during the pendency of the suit. Sub-sections (1) and (2) of section 17 contain these provisions. Sub-section (3) of the same section provides that, if a tenant fails to pay up the arrears or to deposit current rents in terms of sub-section (1) of sub-section (2) within the time specified therein, the Court shall have the defence against delivery of possession struck down and shall proceed with the hearing of the suit. In other words, all the protection given to the tenant under section 13 of the Act of 1956 would be withdrawn if the defaulting tenant does not pay rents, arrear and current, in the manner laid down in sub-section (1) or sub-section (2) of section 17. Sub-section (4), as it originally stood, provided however that if a defaulting tenant makes those payments required by sub-section (1) or sub-section (2), no decree or order for delivery of possession will be made against the defaulting tenant under certain circumstances. The circumstances were mentioned in the proviso to sub-section (4 ). The original proviso runs in the following manner: -provided that a tenant shall not be entitled to any relief under this sub-section if he has made default in payment of rent for four months within a period of 12 months. As a result of this Proviso any tenant who was guilty of having committed default in payment of rent for four months within a period of twelve months was deprived of the opportunity given to him by sub-section (4) to avoid the consequences of his defaults. It is obvious that the proviso as it stood originally was entirely for the protection of the landlord. This protection has now been considerably whittled down by the amendment introduced by the Act of 1968 and now re-enacted in the Act of 1969. The new proviso reads as follows:-provided that a tenant shall not be entitled to any relief under this sub-section if having obtained such a relief once in respect of the premises he has again made default in the payment of rent for four months within a period of 12 months. The new proviso reads as follows:-provided that a tenant shall not be entitled to any relief under this sub-section if having obtained such a relief once in respect of the premises he has again made default in the payment of rent for four months within a period of 12 months. The net effect of the amended proviso seems to be this that even a tenant who would under the original proviso have been deprived of the benefit of sub-section (4) if he had committed defaults in respect of four months within a period of twelve months would again be entitled to protection from eviction if it appears that he has done this only once. In other words, it is only a tenant who has obtained once before the relief provided for in sub-section (4) and then again commits default for four months within a period of twelve months, who would be disentitled to this relief. 7. Taking advantage of this proviso the appellants in the instant appeal seek the protection of sub-section (4) of section 18. On the facts of this case, since the appellants have not admittedly obtained the relief envisaged in sub-section (4) of section 17 once before in another suit they would, in the view that we take of this amended proviso automatically entitled to succeed in this appeal. It will be remembered that the original decree of eviction was passed against the appellants by virtue of the proviso to sub-section (4) as it stood before the amendment. Now, however, the amended proviso would prevent the passing of any decree or any order for delivery of possession against them. It is this aspect of the amendment introduced by Act XXX of 1969 which the respondents challenge as ultra vires the provisions of Article 19 (1 ( (f) of the Constitution of India. ( 8 ) THE argument advanced by the respondents was mainly as follows: The right of the landlord to evict a tenant and to recover possession of his property is a fundamental right within the meaning of Article 19 (1) (f) of the Constitution. Therefore, this is a fundamental right, which cannot be abrogated, curtailed or restricted unreasonably. The tenants have been given all kinds of protection in the Act of 1956. Therefore, this is a fundamental right, which cannot be abrogated, curtailed or restricted unreasonably. The tenants have been given all kinds of protection in the Act of 1956. The amendment Acts of 1968 and 1969 have considerably expanded the protection that had been originally given to the tenants by the Act of 1956. Even so, of all the measures of protection given by the latest amendments the protection that is now given to the tenant by the amended proviso to sub-section (4) is so wide and such a sweeping nature that from the point of view of the landlord it has become extremely unreasonable. A suit against a tenant is usually concluded after quite a number of years. It is not at all unusual for ten or twelve years to elapse before even a successful landlord can throw out his tenant and recover possession of his premises. That has been the position even without the new amendment introduced by the act XXX of 1969. On top of this, now as a result of the amendment of the proviso to sub-section (4) of section 17 even a defaulting tenant who would not ordinarily get the protection of sub-section (4) of section 17 would be entitled to claim the same protection if he can show that the has not, on an earlier occasion, invoked sub-section (4) and obtained relief under the sub-section. This protection, it was argued, is far beyond reasonable limits, it would only encourage the defaulting tenants to act or make defaults in the assurance that the landlord is bound to fail in his attempt to evict the tenant in the first suit. The contention of the respondents is formulated in paragraph 4 of the petition in the following words: -the impugned provisions of sections 2 and 5 of the Amending Act, 1969, are also ultra vires the provisions of Article 19 (1) (f) of the Constitution. The restrictions created and/or imposed on a landlord by the said sections in enjoyment of his right guaranteed under Article 19 (1) (f) are arbitrary or of an excessive nature beyond what is required in the interest of general public and/or are not in the interest of general public, and amount to unreasonable restrictions of the landlord's rights guaranteed under Article 19 (1) (f) of the Constitution. It was argued that the provision that the landlord can succeed against a defaulting tenant only after filing two suits constituted as unreasonable restriction on the landlord's right to enjoy his property rights. It was urged that these provisions ?completely ignore the hardship of landlord of poor financial position? and ?do not even attempt to strike a proper balance between the freedom guaranteed in article 19 (1) (f) of the Constitution and reasonable restriction in the interest of general public. ? ( 9 ) MR. Chandra arguing in support of the respondent-landlord sought to make out the following points: (1) It is impossible to deny that the amendment to the proviso has added a very substantial measure of protection to the tenants which is far in advance of the protection that had been so far available under sub-section (4 ). The amendment makes it impossible for a landlord to get rid of defaulting tenants without succeeding in two suits. This itself is an unreasonable restriction on the landlord's right to hold and enjoy their right to property. (2) Even if the prospective character given to the amendment can be justified, the retrospective character given to the amendment makes the amending proviso very unreasonable. We shall deal with these points one by one. ( 10 ) WE have no doubt in our mind that the protection that has now been given to the tenant is very substantial. The reasonableness of such provision should, however, be judged with reference to the social philosophy of the time. It may not be out of place in this context to refer to the Statement of Objects and Reasons with which Act IV of 1968 was introduced in the Legislature. It will be remembered that the amendment was introduced by Act IV of 1968 and continued under Act XXX of 1969. There are various Supreme Court authorities which justify a reference to the Objects and Reasons for the limited purpose of finding out the conditions which obtained at the time of the introduction of the statutes and which led to the introduction of the legislation and, in particular, for ascertaining the extent and urgency of the evil which is sought to be remedied by a particular statute. The statement of reasons for the enactment of Act IV of 1968 contains the following passages: under section 17 of the West Bengal Premises Tenancy Act, 1956, as it stood before the amendment by the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 (West Bengal Ordinance No. VI of 1967) a tenant who defaulted in payment of rent for four months within a period of 12 months was debarred from avoiding ejectment by making a deposit or payment as required by sub-section (1) or sub-section (2) of section 17. The Court had no powers, even in cases of real hardship of extending the time of making the deposit since the provisions of the act were causing severe hardship to the tenants in some cases, it was considered necessary by the Government of West Bengal to give the tenant some relief by amendment of the Act. Accordingly, the West Bengal Premises (Amendment) Ordinance, 1967, was promulgated by the Government of West Bengal. The main provisions of the Ordinance were as follows: (a) * * * * * * * * * * (b) * * * * * * * * * * (c) the tenant had the opportunity for once only to avoid ejectment on the ground of default in payment of rent irrespective of the period of default by making deposit or payment of all arrear dues. On any subsequent occasion, however, default in payment of rent for four months within a period of twelve months debarred him from getting any relief. The Wets Bengal Premises Tenancy (Amendment) Second Ordinance was promulgated by the Governor of West Bengal to continue with certain modifications the provisions of the First Ordinance. The proposed measure seeks to replace the Ordinance No. II of 1968. ( 11 ) IT is perfectly clear that the Legislature thought that a tenant should be given more than one opportunity for avoiding ejectment on the ground of default in the payment of rent by making deposits or payments in respect of arrear dues as well as by continuing to pay current dues in terms of sub-section (1) or sub-section (2) of section 17 of the Act. If the sponsors of the statutes think that even a defaulting tenant deserves a second opportunity so long as he is prepared to pay up all arrear dues prescribed by law, I do not see why it would be unreasonable to give that opportunity to the defaulting tenant. It is important to remember that the second opportunity is not given. It is important to remember that the second opportunity is not given to a tenant against whom an ejectment decree is passed or is going to be passed on any other grounds mentioned in section 13 of the Act. Thus, if a landlord requires it for his own use there is no reprieve provided for the tenant. It is only when the landlord's complaint is based on the tenant's failure to pay the rents that a tenant is given a second opportunity provided, however, that he pays up all the arrears dues. Therefore, the basis for the landlord's complaint is removed by providing for payment of his dues before any relief is given to the tenant. The protection to the tenant is counter-balanced by an equal protection for the landlord. We cannot, in such circumstances, persuade ourselves to regard this extra protection given to the tenant by the amended proviso to sub-section (4) as an unreasonable restriction on the landlord's right to hold and enjoy the property. It would have been unreasonable only on the assumption that the landlord wanted the house at any costs. But that is not the case where a landlord seeks to evict the tenant on the ground of default in payment of rent. If the defaults are wiped out and the current rents are paid, no reasonable hardship is caused to the landlord. In our opinion the whole matter would appear in different light if we remember that tenants do not always default in payment of rent out of sheer wickedness or malice towards the landlord. More often that not, tenants default because they have not, got the means to make the payment. In the social conditions that obtain in our country it is hardly just and proper to consider poverty as a sin which is beyond redemption. Even if the widest latitude is given to the poor and indigent tenants it would be hard to describe the provision which gives such latitude as unreasonable. In the social conditions that obtain in our country it is hardly just and proper to consider poverty as a sin which is beyond redemption. Even if the widest latitude is given to the poor and indigent tenants it would be hard to describe the provision which gives such latitude as unreasonable. This must be specially so when the latitude is not given at the cost of the landlord. They very essence of section 17 is to protect the defaulting tenants by giving them an opportunity to pay up the arrear dues. Under sub-section (4) and the proviso, as it originally stood, this protection was denied to the tenant who was a habitual defaulter to the extent that he would not pay this dues for four months in a period of twelve months. Under the new proviso this severity has been relaxed further in favour of the tenant. Even such a defaulting tenant is no longer considered beyond the pale of redemption and has been given an extra opportunity, but in providing for the extra opportunity the landlord's interests have not been overlooked. Looking at the whole matter from this point of view we are not prepared to consider the provisions in Act IV of 1968 or Act XXX of 1969 which have amended the proviso to sub-section (4) as unreasonable and consequently unconstitutional. ( 12 ) AT the time of hearing of this appeal Mr. Chandra referred us to certain observations of the Supreme Court in various decisions. We do not think that those observations have any bearing on the peculiar features of the instant case. The reasonableness of a legislative provision has to be judged on the merits of each individual case separately. We confess that we have not found the observations placed before us to be very helpful. We do not think that those observations have any bearing on the peculiar features of the instant case. The reasonableness of a legislative provision has to be judged on the merits of each individual case separately. We confess that we have not found the observations placed before us to be very helpful. ( 13 ) WE were referred to the decision of the Supreme Court in (1) K. L. Gupta v. Corporation of Greater Bombay, AIR 1968 SC 303 where Mitter, J. delivering the judgment of the Supreme Court observes as follows: -in all such cases, where large powers are given to certain authorities the exercise whereof may make serious inroads into the rights of property to private individuals, we have to see whether there is any guidance to be collected from the Act itself, its object and its provisions, in the right of the surrounding circumstances which made the legislation necessary taken in conjunction with well-known facts of which the Court might take judicial notice. These observations, if we may say with respect, are absolutely unexceptionable and completely binding on us. But the present case is not a case where any large powers have been given to any authority. Therefore, these observations are not, in our opinion, helpful at all. ( 14 ) WE are next referred to the case of (2) N. S. Gujral v. Custodian of Evacuee Property, AIR 1968 SC 457 . In that case, section 12 of the Displaced persons (Compensation and Rehabilitation) Act, 1958, was challenged and in dealing with that question the Supreme Court regard 'decree' as a property. Mr. Chandra apparently sought to argue that, in the instant case, since a landlord is being deprived of a decree which he has already secured or is sure to obtain in the first Court, the legislative provision depriving the landlord of that decree amounts to unreasonable depriving of the property. In our opinion, it is not a correct analogy. What has actually happened here is that the new amendment to the proviso to sub-section (4) has made it possible for a landlord to get a decree of eviction or an order for possession of his property unless the tenant has been guilty of the default specified in sub-section (4) on two occasions and the tenant has obtained the relief under sub-section (4) on an earlier occasion. The conditions which will enable a landlord to get a decree for eviction have been made a little more onerous. If section 13 of the Act of 1956 can be accepted as regular and reasonable and if that section is not registered as taking away of any property right, we do not see how the amended proviso to sub-section (4) can be condemned as unreasonable and as making as inroad on one's property right. ( 15 ) NOW we come to the second contention of Mr. Chandra who argued that even if the prospective operation of section 2 (3) of Act XXX of1969 which amended the proviso is found justified, it is impossible to escape the conclusion that the retrospective character given to the same amendment by section 5 of Act XXX of 1969 makes it an unreasonable restriction on the right to hold property. We do not think that this contention is correct either. ( 16 ) IT is well-known that the Supreme Court has been very cautious in treating the retrospective operation of legislation as an element of the unreasonableness while dealing with the question of infringement of fundamental rights. The retrospective character of a statute is only one of the elements which have to be taken into consideration in determining the reasonableness of the restrictions introduced by a statute. In this connection, reference may be made to the following Supreme Court decisions of (3) State of West Bengal v. Subodh Gopal, AIR 1954 SC 92 ; (4) Express Newspapers v. Union of India, (1968) SCR 12; (5) Ramkrishna v. The State of Bihar, AIR 1960 SC 1667 and (6) Assistant Commissioner v. B. and C. Company, AIR 1970 SC 169 . Though the question of retrospectivity enters as an element to be considered while dealing with the concept reasonableness under Art. 19, we must remember that there is no bar against retrospective legislation in our Constitution except in regard to criminal legislation. ( 17 ) IN our opinion, if the proposition of giving a double opportunity to defaulting tenant is not by itself unreasonable, it should not become unreasonable merely because retrospective effect has been given to the legislative provision introducing this double opportunity. We must make it clear that we say this because of the special considerations involved in the case of defaulting tenants. We must make it clear that we say this because of the special considerations involved in the case of defaulting tenants. As we have already indicated, the legislative provision contains a kind of poise and counter-poise protecting the interest of the tenant as well as the reasonable interest of the landlord, it must, therefore, be regarded as reasonable in its impact on the fundamental rights guaranteed by the Constitution. In coming to this decision we remember the important fact that the landlord in such case is anxious to get his rents and is not anxious to get back possession of the premises. Had it been otherwise, we might have come to a different conclusion. In fact, in the case of (7) Kalyani Datta v. Promila Bala Dasi, ILR (1972) 2cal 660 my learned brother, Dutt, J. gave a judgment to which I was a party and in which he held that sub-section (3a) of section 13 insofar as it has been made applicable to pending suits and appeals in ultra vires the provisions of Article 19 (1) (f) of the Constitution for having placed unreasonable restrictions on the right of landlords whose suits or appeals for eviction on the ground of reasonable requirement are pending. I refer to this case to indicate the essential qualitative distinction between a case where a landlord requires a house for his own use and a case where the landlord wants to get rid of a tenant because he does not pay rents regularly. ( 18 ) IT remains for me to mention that there was some argument regarding the exact effect of the amended proviso. We have, however, sitting in the same Special Bench in (8) Jamuna Prosad Chowrasia v. Kishorilal Poddar, FMA No. 565 of 1965, decided on July 28, 1972 in which we have held that under the amended proviso no decree or order for delivery of possession can be made against a tenant who has not committed a default in payment of rent for four months within a period of twelve months after having once before obtained relief in an earlier suit for a similar default. It is not necessary for us to deal with this aspect of the matter in this case again. It is not necessary for us to deal with this aspect of the matter in this case again. In the result, since it is nobody's case that the appellant had obtained any relief under section (4) of section 17 in an earlier suit and, since we have found the amended proviso to be perfectly constitutional, we must hold that in the facts and circumstances of the case the appellant will be entitled to the protection given by the amended proviso. In the result, we allow the appeal and set aside the decree passed by the learned City Civil Court Judge. We order, however that the respondent will get the costs of both the suit and the appeal. Mukharji, J. : I agree. Dutt, J. : I agree. Appeal allowed and the decree set aside.