Gangamayee De v. Manindra Chandra Nandi

The Judgment of the Court was delivered by

P.B Mukharji, J.:— This is a suit for possession of premises No. 3A, Anukul Mukherji Road, Calcutta, for arrears of rent for the two months of Jaistha and Ashârh, 1354 B.S, corresponding to 16th May to 17th July, 1947, amounting to Rs. 202 and for mesne profits and other reliefs. The plaintiff's case is that she is the owner of the said premises and that the defendant was a monthly tenant under her at a rent of Rs. 101 per month. The plaintiff gave a notice of ejectment through her solicitors, Messrs Mitter and Bural, on May 29, 1947, calling upon the defendant to quit and vacate on the expiry of the month of Ashârh, 1354 B.S, corresponding to July 17, 1947. The plaintiff alleged that the defendant sub-let the premises without her consent. This suit was filed on July 21, 1947.

The defendant filed his written statement admitting the receipt of notice to quit. He also admits sub-letting, but states in his written statement that it was a condition of the tenancy that he should sub-let portions of the premises. The defendant states also that, at the time when he took over the said premises as a tenant, there were existing sub-tenants on the premises. He claims protection under the Calcutta Rent Ordinance, 1946, and pleads deposit of all rents with the Rent Controller.

On behalf of the defendant the following issues were raised:—

(1) Was there any agreement as alleged in para. 2 of the written statement?

(2) Has the defendant sub-let the major portion of the said premises for more than six consecutive months without the plaintiff's consent? Even, if so, if such sub-letting was not for six months from December 1, 1948, can such sub-letting be a ground of ejectment?

(3) Has the defendant deposited all rents under the Rent Ordinance/Act up to date?

(4) Is the notice to quit bad in law under the new Rent Act?

(5) To what reliefs, if any, is the plaintiff entitled?

Issue No. 1. The agreement pleaded in para. 2 of the written statement is that the plaintiff let the premises to the defendant on condition that the defendant would take it subject to the sub-tenancies then existing and to be entitled to sub-let portions thereof not required for his own purpose. Although the pleading is that there were sub-tenants, the evidence, led on behalf of the defendant, was that Nitai Ray was the only sub-tenant in 1943, when the defendant became, a, tenant. Both in the written statement and in the affidavit of the defendant affirmed on November 17, 1947, in this suit the defendant made the case that there were more sub-tenants than one at the time when he became a tenant of the said premises. That is falsified by the evidence given on behalf of the defendant. Nitai Ray has given evidence on behalf of the defendant to say that he is still a tenant and has been a tenant for the last ten or eleven years in the said premises. He used to pay according to his evidence rent to Gopal Chandra De, the former tenant of the plaintiff. When Gopal left on or about Phâlgun 24, 1354 B.S, corresponding to March 8, 1942, he was in the happy position of living rent-free for three months (Nitai Q. 44.). After that he says he paid rent to Satish Chandra De, the husband of the plaintiff. He at first said that he paid rent to Satish only for six months, but apparently he had another period of free occupation without rent for four months from December, 1942, to April, 1943, after which the defendant came in as a tenant (Nitai Qs. 52 to 59). I have no hesitation in rejecting the evidence of Nitai Ray. He produced no rent-receipts to show that he was paying any rent as a sub-tenant to the defendant at any time since April, 1943. The story of his having paid rent to Satish cannot be accepted. This case of his having paid any rent at any time to Satish was never put to Satish when Satish was in the box giving his evidence. Secondly, Nitai has not produced any rent-receipt of Satish either and I do not believe his answer to Q. 11 as any explanation for his not having obtained receipts of payments of rent, if he paid any to Satish. The manner of his answering this question leaves no doubt in my mind that he was concealing the truth. This witness also affirmed an affidavit on September 8, 1947, in the application for final judgment in this suit and he did not even there make the case that he paid any rent at any time to Satish (Nitai Qs. 60 to 67). For these reasons I reject his testimony and I disbelieve his story. In fact, the defendant has also produced no counterpart of any rent-bill to show that Nitai was or is a sub-tenant paying any rent to him.

At this stage I should refer to two old hills that had been produced and exhibited in this suit and which will be found in the admitted brief of correspondence marked Ex. H. They, are receipts granted by the previous tenant, Gopal De, to Nitai, who then occupied one room on the third storey. But these receipts are the receipts, dated Bhâdra 17, 1347 B.S, corresponding to August/September, 1940. Gopal De gave evidence before me on behalf of the defendant and I accept his testimony. According to him, Nitai was his sub-tenant but he left in the month of Kârtik, 1348 B.S, before Gopal himself left on or about Phâlgun 24, 1348 B.S, corresponding to March 8, 1942. Gopal gave a letter to the plaintiff on that date, which is also to be found in Ex. H. He definitely stated in that letter that he handed over vacant possession of the house to the plaintiff. On his evidence, which I accept, I have no hesitation in holding that at the time, when defendant Manindra took over, he had vacant possession of the said premises and there was no sub-tenant and that Nitai was not a sub-tenant at that time.

There are two other facts which also compel me to come to the conclusion that there were no sub-tenants when defendant came in as a tenant. The electric connection of the house had been discontinued and was not restored until the defendant came as a tenant and made an agreement with the Calcutta Electric Supply Corporation, dated March 25, 1943. I cannot ordinarily imagine a sub-tenant or any one living in a house in Calcutta where there was no electric connection and particularly in a house in Anukul Mukherji Road. Secondly, the rate bills of the Calcutta Corporation, which have been exhibited, show vacancy-remission and exemption from occupier's taxes. That vacancy-remission ceased from the fourth quarter 1943–1944, as will appear from the rate bill, dated November 14, 1943, and which hears the endorsement of the defendant coming in and occupying the house. The rate bills are exhibits in this suit.

On these facts I have no hesitation in holding that there was no agreement as stated in para. 2 of the written statement and answering issue No. 1 in the negative.

Issue No. 2. On behalf of the plaintiff evidence on this point has been given by witness Rash Bihari Chakrabarti, Haridas Ganguli and Satish Chandra De, the husband of the plaintiff. According to Rash Bihari he has been a sub-tenant for the last two years under the defendant and still continues to be so. He has mentioned other sub-tenants as Haridas Ganguli, Suresh Shaha, Gopal Mudi, Nitai Karmakar and Haridas Ghosh. (Rash Bihari Qs. 14 to 31) He has also, in answer to these questions, described the different rooms occupied by the sub-tenants. In cross-examination nothing was done, in my opinion, to shake the credit of this witness and I accept the evidence of Bash Bihari. Haridas Ganguli has also given evidence to say that there are about six sub-tenants and all of them have been there as such sub-tenants for periods varying from two to four years. It has been argued before me that I should not accept the evidence of this witness, because of the litigation between this witness and the defendant in the Bent Controller's Court. Making allowance for the fact of such litigation, I find, however, that his statement was corroborated by Bash Bihari as well as by Satish Chandra De. On the fact of the number of sub-tenants and their periods of occupation as such sub-tenants and the rooms such sub-tenants have been occupying, I do not see why I should not accept the testimony of this witness when I find it is corroborated by two other witnesses I have just mentioned.

In respect of one particular person, named Haridas Ghosh, who is said to occupy the entire second floor and two rooms in the first floor, there has been a good deal of controversy. Defendant described Haridas Ghosh as his foster father or god-father. Haridas Ghosh is supposed to have brought up and educated the defendant. Haridas Ghosh has given evidence before me, but he does not even remember whether defendant passed the Matriculation Examination or Intermediate Examination of the University, although he is supposed to have educated the defendant. There is contradiction between Haridas Ghosh and the defendant in so far as the defendant said that he lived with Haridas Ghosh or Haridas Ghosh lived with him and they were not separate. Haridas Ghosh said that Manindra had separate room. But on this point, I prefer to base my conclusion on other factors.

The defendant in his evidence made the definite case before me that Haridas Ghosh was not his sub-tenant. But I find that this defendant gave evidence on solemn affirmation in a criminal case (G.R Case No. 213 of 1944) before the Additional Chief Presidency Magistrate, Calcutta. That deposition is Ex. K in this suit. In that deposition in 1944, the defendant described Haridas Ghosh, who was the accused, as a tenant. He also said in cross-examination in that evidence that Haridas Ghosh paid rent of Rs. 13 to the defendant and that he had a khâtâ in which all payments of rents were entered and he further said that the accused Haridas Ghosh paid up all his dues. An argument has been made before me that I should not accept that deposition, because Satish Chandra De was a clerk in the police court of that learned Magistrate and because of the suggestion by the defendant in his evidence before me that the defendant made that statement before the Police Magistrate as he was asked to say so by Satish Chandra De. Wort a word was suggested to Satish Chandra De while he was in the box, that as such clerk in the police court he asked the defendant to make a false statement. I have no hesitation in disbelieving, the defendant when he said that he gave false evidence before the Magistrate on instruction from Satish Chandra De. In any event, I cannot accept the evidence of a person who says he was prepared to give and did give false evidence on oath at the suggestion of any person. In answer to Q. 111 on March 2, 1949, before me he definitely admitted that he made the false statement and he did not state then that Satish Chandra De had anything to do with such false statement. On the next, i.e, on March 3, 1949, this witness improved upon his evidence and came forward with his new suggestion of having made the false statement on the instruction of Satish Chandra De (defendant Qs. 198 to 202).

I have no hesitation in rejecting the evidence of the defendant.

Haridas Ghosh himself filed a written statement, dated November 29, 1944, before the Magistrate which is marked as Ex. M in this suit. There he himself admitted and stated that he was a tenant under the defendant.

Such deposition (Ex. K) and such statements (Ex. M) being ante litem motam and long before this litigation, I accept them as describing the true state of facts and, as the defendant has not disclosed his counter-foils of rent-bills or rent-collection book, I hold that Haridas Ghosh has been and is a tenant under the defendant.

I hold, therefore, on the evidence that the defendant sub-let the major portion of the said premises for more than six months, without consent in writing of the plaintiff.

It will be proper at this stage to deal with a point of law raised by Mr. J.C Gupta and which is concerned with the interpretation of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. Mr. Gupta has argued, first, that the words “in writing” qualify the word “authority” only and not the word “contract?” in s. 11, prov. (b)(i) of the Rent Act. On an anxious consideration of this argument, I find I cannot accept this construction. In my judgment, any contract to sub-let is a kind of authority given to the tenant by the landlord and the words “contract” and “authority” are to be read as ejusdem generis in this section. That is why the word “other” is used in that part of the statute under consideration. If the words “contract” and “authority” were not to be read ejusdem generis, then the word “other” would be meaningless. Besides the use of the word “expressly”, in my opinion, indicates that the legislature intended that the contract must he expressed. The word “expressly” qualifies also “in writing”. In other words, an authority in writing, from which it might follow by implication a permission of sub-letting, will not protect, the tenant. The legislature, therefore, intended to exclude cases of implied as opposed to express permission of sub-letting. If, in the case of even an authority in writing, the permission has to be expressly stated and not implied, I fail to see why an interpretation should be put upon this section, so as to mean that a mere oral or verbal contract to sub-let will protect the tenant. There is no sensible reason in being severe on “authority in writing” as opposed to contract to sub-let. No logical principle of interpretation of statute or common sense can justify such difference being made between a contract and an authority. The absence of the word “authority” in prov. (b)(ii) of that section does not help Mr. Gupta, because in that sub-section a prohibition is dealt with and a prohibition is an interdict and can never be regarded as an authority. If Mr. Gupta's argument were to prevail, then it would have meant that, while the prohibition on sub-letting has always to be in writing, the permission to sub-let by contract could be oral. I see no justification for making such a difference between prohibition and permission. Mr. Gupta has argued on the policy of the Act, contending that the Act was indulgent to sub-letting on the ground of clearth of accommodation in Calcutta and, therefore, the Act required no writing in the contract to sub-let, but the Act did not favour prohibition on sub-letting on the same ground of clearth of accommodation and, therefore, requires the prohibition to be in writing. The policy of the Act is to be gathered from the language used in the different sections read in the light of the object of the Act as set-out in the preamble. On such a consideration I cannot accept Mr. Gupta's unqualified and sweeping suggestion that such policy was indulgent to sub-letting in any and every case, because, if that were so, prov. (b)(i) need not have been enacted at all. In my opinion, therefore, the protection of the tenant can only be claimed in case there is a contract in writing expressly permitting subletting. There is in this case no such express contract in writing permitting such sub-letting. The contracts in this case were recorded by the defendant in writing, dated March 22, 1943, and May 29, 1947, and the defendant has not “expressly” or “in writing” said there that the defendant can sub-let.

The next point argued by Mr. Gupta is that the sub-letting for six consecutive months, which disentitles the tenant to the protection given by s. 11 of the Rent Act, 1948, must be subletting Under the Rent Act, 1948, and, therefore, it must be six months' sub-letting since December 1, 1948, when the Act came into operation. According to him, no matter for how long more than six months the tenant may have sub-let prior to December 1, 1948, all that period of sub-letting, even though for more than six months, is of no avail, as that was not offensive sub-letting under the Rent Act, 1948. As six months have not elapsed since December 1, 1948, in this case, even now the plaintiff, according to Mr. Gupta, cannot avail of prov. (b)(i) of s. 11 of the Act.

This argument requires careful consideration and raises a very important question. There are three decisions on somewhat similar points raised under the Calcutta Rent Ordinance, 1946 (Bengal Ordinance V of 1946). The first decision is of Sen, J., on March 1, 1948, in Atul Krishna Basu v. Gonesh Chandra Dhar. There the learned Judge considered prov. (b) to s. 12(1) of the Ordinance, 1946, which also disentitles a tenant to the protection under s. 12 of the Ordinance, if he sub-let the premises without the consent in writing of the landlord. In that case, the learned Judge interpreted the Calcutta Rent Ordinance and came to the conclusion that sub-letting prior to the Ordinance was also affected, with the result that the tenant lost the immunity conferred by s. 12 of the Ordinance, even though he sub-let prior to the Ordinance. At p. 381, the learned Judge notices the well-known principle that the Act should not be given retrospective effect unless the words of he Act expressly or impliedly indicate that such effect is to be given and the court should construe an Act as having effect only from the date on which it comes into force, unless by express words or by necessary implications it is given a retrospective operation. The learned Judge followed the decision of Purusottam Lal Sarogi…Defendant v. Mt. Hawi Bai…Plaintiff Opposite Party. Bai.

The second decision is of Biswas, J., which came a month later, on April 9, 1948, in Gurupada Haldar Jiban Krishna Das, a firm v. Arjundas Goemha. That was also a decision under the Calcutta Rent Ordinance, 1946, and the learned Judge came to the conclusion that the tenant, who sub-let the premises without the consent of the landlord, lost the protection given by s. 12(1) of the Ordinance and was hit by cl. (b) of the proviso of that section, even though the sub-letting was done before the Ordinance came into force. There, the sub-letting continued after the Ordinance came into force. In the other case, decided by Sen, J., there also the sub-letting continued after the Ordinance of 1946 had come into force.

The third decision is of Clough, J., on June 24, 1947 (earliest in point of time but last to be reported) in Mohamed Omar v. T.B Timms. That also was a decision under the Calcutta Rent Ordinance, 1946, and the learned Judge came to the same conclusion as in the other two decision I have mentioned. In addition to what was stated by Sen, J., and Biswas, J., the learned Judge in this case, decided that the question of construction of that section of the Ordinance was not to be approached as if it was one that deprived persons referred to in it, i.e, tenants, of any right. The learned Judge also construed and emphasised the word “has” in the expression “has sub-let”.

There is one decision under the Rent Act, 1948, of Banerjee, J., in Santilata, Ghose v. Ibrahim, which is unreported and to which my attention has been drawn. The learned Judge there has held, following the two decisions of Clough, J., and Biswas, J., which I have quoted above, and one other unreported decision that the fact of sub-letting before the Act makes no difference to the tenant. The learned Judge has given no further reasons.

The provisions of the Rent Act are not exactly similar to the provisions of the Calcutta Rent Ordinance, 1946, and they are different in two material particulars. First, there is no provision in that Ordinance that sub-letting has to be for more than six months as under the Rent Act of 1948. Secondly, there was also no provision in Rent Ordinance of 1946, similar to that contained in s. 13 of the Rent Act. The question, therefore, for determination is whether these two special provisions make any difference and whether the principles laid down in three cases decided by Biswas, J., Sen, J. and Clough, J., under the Calcutta Rent Ordinance, 1946, are applicable to the Rent Act of 1948.

Mr. D.K Dey who followed Mr. Gupta in argument on this point has submitted that these two factors do make a difference. According to him, as no period of sub-letting was specified under the Rent Ordinance, 1946, if the sub-letting continued a day after the Ordinance came into force, that was enough to throw out the tenant from the protection of s. 12 of the Ordinance. He has drawn my particular attention to the observation of Biswas, J., in Gurupada v. Arjundas (supra) which are in these terms:—

It may be that at the inception of the tenancy there was no question of obtaining the consent of the landlord in writing before the tenant could sub-let. All the same the tenancy subsisted at the date of the Ordinance and continued during its currency.

On that ground, Mr. Dey distinguished the decisions of Biswas, J., Sen, J., and of Clough, J., who held that sub-letting prior to the Ordinance was sufficient to disentitle the tenant to the protection offered by s. 12 of the Ordinance.

In my judgment, s. 11(1) of the Rent Act should be construed as a whole. Sub-section (1) of that section should be construed and read along with the proviso that follows. While sub-s. (1) says that no order or decree for recovery of possession should be made, it also says in the same instance by way of a proviso that this embargo on the making of a decree will not operate in the case where the tenant “has sub-let” for more than six consecutive months without the landlord's consent. In Jennings v. Kelly, the House of Lords says that there is no rule that the first or enacting part is to be construed without reference to the proviso. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest Viscount Maugham in his speech says:—

The principle is equally applicable in the case of different parts of a single section and nonetheless that the latter part is introduced by the words “provided that” or like words. There can, I think, be no doubt that the view expressed in Kent's Commentaries on American Law (cited with approval in Maxwell, 8th Ed., p. 140) is correct. The true principle undoubtedly is, that the sound interpretation and meaning of the statute on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail.

The point of time is the time when the decree is going to be made and at that point of time the words “has sub-let” have to be given a meaning. The only consistent, possible and natural meaning will be to look to a period anterior to the point of time when the decree is being made and when once that construction is followed any prior period of six months will necessarily come in. No question of disturbing or affecting vested rights is involved by adopting this interpretation. Prior to the Rent Act, 1948, the tenant had no vested or any right to resist a suit for ejectment after notice to quit under the general law or the Transfer of Property Act on the ground that he has not sub-let for more than six months. Indeed, under the law previous to the Rent Act, 1948, even a day's sub-letting without permission was enough to turn out the tenant of protection under the Ordinance of 1946. Therefore, the consideration of the principle that a, statute should not be given a retrospective effect so as to affect vested right (Maxwell's Interpretation of Statutes, 9th Ed., pp. 222-23) is inappropriate in such context. In fact the construction, which I put on this section, and which affects sub-letting prior to December 1, 1948, does not disturb vested rights and, instead of doing violence to the rights of the subject under the general law, is in consonance therewith.

In my opinion, the question is as to the ambit and scope of the Rent Act and not as to the date from which the new law as enacted by the Act is to be taken to have been the law. Similar considerations and arguments were considered in West v. Gwynne, where the question was if s. 3 of the Conveyancing and Law of Property Act, 1892, engrafting a proviso on all leases containing a covenant against sub-letting without consent of the landlord to the effect that no sum of money shall be payable in respect of such consent, was applicable to leases before the Act. The question arose whether such a provision would apply to a lease executed before the Act came into operation, but continued during the currency of the Act, when the Act did not use any express language of retrospective operation. At pp. 11 and 12 of that Report, Buckley L.J says:—

During the argument the words “retrospective” and “retroactive” have been repeatedly used, and the question has been stated to be whether s. 3 of the Conveyancing Act, 1892, is retrospective. To my mind, the word “retrospective” is inappropriate, and the question is not whether the section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date from which the new law, as enacted by the Act is to be taken to have been the law.

If this were not the construction, then it will mean suspending the operation of this particular statutory provision for six months from December 1, 1948, in respect of the ground of sub-letting, although the Act says it shall come into operation under s. 1(2) of the Act, on such date as the Provincial Government may, by notification, appoint, and the date so appointed is December 1, 1948. Reading, therefore, s. 11(1) of the Rent Act with the provisos that follow and with a view to give effect to the entire section along with the proviso and with a view to avoid suspending operation of the statute and making it applicable in different parts to different points of time, a result which is always, whenever possible, to be avoided, the proper construction, in my opinion, is to give a meaning to the words “has sub-let” as capable of affecting a period of time anterior to the operation of the Act.

The next consideration is whether s. 13 of the Rent Act makes any difference. It is argued on the basis of this section that the legislature has made the special provision that, where a tenant has sub-let in whole or in part any premises let to him for a period of not less than seven years and such period expires on or after the 1st day of October, 1946, the tenant shall not be entitled to the benefit of s. 11 of the Act. The date October 1, 1946, was the date on which the Rent Ordinance of 1946 came into operation. The argument, therefore, is that, where the legislature thought fit to affect sub-letting anterior to the date when the Act came into operation, i.e, December 1, 1948, it has said so expressly, and the only anterior sub-letting, which is affected by the Act, is, therefore, that class of sub-tenancy which lasted for at least seven years expiring on or after October 1, 1946, and not any other sub-letting prior to the Act for a period less than seven years. If a sub-letting for more than six consecutive months prior to the date of coming into operation of the Act was to come within prov. (b)(i) of s. 11, then, it is argued, s. 13 of the Act to redundant.

On a careful consideration of this argument I am unable to accept it. I do not consider that s. 13 of the Act will be redundant if, by prov. (b)(i) of s. 11, sub-letting for more than six months prior to December 1, 1948, is hit. The purpose of s. 13 is clear enough from the words “notwithstanding any thing contained in this act”. This, according to my interpretation, means that, even where the tenant has express permission in writing for sub-letting from his landlord, that is no protection for him, if he has sub-let for a period not less than seven years expiring on or after October 1, 1946. The purpose of s. 13 of the Act is to make a special provision where the sub-tenancy is for not less than seven years and the legislature has thought fit that, in such a case, a tenant does not need to retain his tenancy and he is deprived of the protection under s. 11 of the Act. In that case, therefore, the further provision is made, which follows from the words of s. 13, that the sub-tenants with such long duration of not less than seven years will be deemed to be tenants directly under the landlord.

In my judgment, on a proper construction of s. 11 and s. 13 of the Act, I am of the opinion that, under prov. (b)(i) of s. 11 of the Rent Act, any period of sub-letting prior to and continuing on or after December 1, 1948, disentitles a tenanat from any protection under s. 11(1) of the Act, if such sub-letting has been for more than six consecutive months for the whole or a major portion of the premises without a contract in writing expressly permitting such sub-letting.

Accordingly, I answer issue No. 2 in the affirmative.

Issue No. 3. Having regard to my interpretation of the Act, strictly speaking it is not necessary for me to determine this issue. But I find from the evidence before me that only Rs. 5-15-0 was paid as rent for the month of Phâlgun, 1354 B.S, corresponding to February/March, 1948, and only Rs. 6 was paid as rent for the month of Bhâdra, 1355 B.S, corresponding to August/September, 1948, although the rent was Rs. 101 per month. The defendant said nothing in his examination-in-chief on this issue. But in cross-examination he purported to explain these two payments of such smaller sums than the rent by suggesting that he had deducted the taxes. But the defendant admits that there was no agreement between him and the plaintiff that the defendant should be entitled to deduct such tax (Qs. 244 to 250). In my judgment, therefore the plaintiff has not deposited all rents allowable under, the Act and is not entitled to any protection under s. 11 of the Act.

I, accordingly, answer issue No. 3 in the negative.

Issue No. 4. The notice to quit is dated May 30, 1947. A notice to quit, in my opinion, does not need to state any ground at all. In this case, the ground, however, was stated and that was sub-letting without the knowledge and consent of the plaintiff. Mr. Gupta has argued that, under s. 11 of the Rent Act, the notice must state sub-letting not merely without the consent of the landlord, but also for a period for more than six consecutive months, and he has submitted that, on this ground, the notice is bad under the Rent Act. The argument, in my opinion, is unsound. Section 11 of the Rent Act has nothing to do with notice to quit and it is not necessary that the notice to quit should be in any particular form except as required by the Transfer of Property Act. Section 11 of the Rent Act does not put a fetter on the passing of any decree or order for recovery of possession, if, while passing such decree, it is brought to the notice of the court on the evidence or otherwise that there has been on offensive sub-letting within the meaning of prov. (b)(i) of s. 11, so as to deprive the tenant of his immunity under that section. That, however, does not mean that the notice to quit is had. Besides that, notice to quit was given under the Transfer of Property Act, as it must be, and at a time before the Rent Act came into operation.

I, therefore, hold that the notice is not bad and, accordingly, answer this issue in the negative.

Issue No. 5. It follows from my findings on the other issues that the plaintiff is entitled to the reliefs he has claimed in the plaint.

There will, accordingly, be judgment for the plaintiff for possession, for arrears of rent amounting to Rs. 202, for mesne profits as claimed in prayers (a), (b) and (c) of the plaint. The defendant will pay the costs of the suit to the plaintiff. Certified for two counsel. No order is asked for and I make no order in respect of the sub-tenants.

Suit decreed.

Attorneys for plaintiff: Mitter & Bural.

Attorneys for defendant: R.L Dutt & Co.

A.K.B