B.K Biswas v. Phanindra Nath Bagchi .

1. This is a Rule against an order passed on the 14th December, 1948, by a Munsif of Alipore rescinding on certain conditions a decree passed on the 23rd November, 1948, under the Calcutta Rent Ordinance (Bengal Ordinance No. 5 of 1948). The judgment in the suit under the Ordinance shows clearly that it was found that at the date of the suit and at the date of the decree there were no actual arrears of rent. The suit was brought on the 11th April, 1947, when the provisions of the Ordinance were in force. It was found by the trial Court, however, that there had been a default in payment of rent on some month that could not fairly clearly be fixed in the sense that the payment had not been made by the 15th of the month. The matter arose out of a question whether the tenant had deposited the rent for March, 1946, in due time. It was found that eventually the whole amount of rent had been deposited as shown by the various receipts he produced, showing the deposit of rent with the Rent Controller. But the evidence was also sufficient for the Court to be able to say that at any rate in respect of some month, one month or more, there had been a failure to deposit the rent in due time under the terms of the Ordinance. Accordingly, the tenant was held not to be protected by the terms of the Ordinance and the decree was passed on the 23rd November, 1948. Within a few days of this, the West Bengal Premises Rent Control Act came into force and the tenant applied to take advantage of the provisions of that Act whereupon on the 14th of December, the learned Munsif rescinded the decree allowing the tenant to deposit the decretal costs and Rs. 3, consolidated interest, on the arrears by the 17th December. On the 17th December, the amount required was paid and the decree was accordingly rescinded.

2. It will be seen that the learned Munsif treated the provisions of sec. 18 as meaning that the decree of the 23rd November was to be treated as passed after the new Act came into force on the 1st December and accordingly as there were no arrears to be paid, allowed the tenant to comply with the latter part of sec. 12 (1) (b) of the Act which requires that where arrears are already the subject-matter of a suit or proceeding, interest should be paid and such costs as the Court might award.

3. It is arguable, of course, on the learned Munsif's own determination, that as there were no arrears, it was not necessary in any view of the matter for him to stipulate for any payment of interest. It would seem that the Rs. 3 consolidated interest was taken to be the interest accruing for the delay that may have occurred in paying the rent of some months of the period in question, although it was found that, in fact, by the date of the decree no actual arrears were outstanding.

4. Sec. 18, however, has been differently interpreted in this Court in a series of cases. It is only necessary to mention the case of Amulya Ratan Bhattacharjya v. Maghmala Dutt(1). There it has been held that the meaning is that we are to assume that on the date of the decree taken to be the actual date, and we are to assume that the West Bengal Premises Rent Control Act came into force on some date on or before the actual date, on which decree was passed. It has accordingly been held in those cases that sec. 12 (1) (b) in so far as it provides a remedy for arrears outstanding cannot be taken advantage of for if it is assumed that the Act was in force on or before the date of the decree, clearly where arrears in fact exist, the loophole provided by sec. 12 (1) (b) which only provides for the clearing of arrears within a month of the last December, 1948, cannot be of any assistance. But in the present case, there is no difficulty in the way of applying sec. 18 to give relief for if we assume that the Act was in force on the 23rd November, 1948, when the decree was passed, then clearly there being no arrears and subject to what is said hereafter as to default there was nothing to justify a decree in favour of the landlord for ejectment.

5. In so far as sec. 12 (1) (b) requires payment of interest and costs of the decree, admittedly this provision makes sense in a case of decrees passed before the Act came into force if we apply the theory on which the learned Munsif based his order but if the strict terms of sec. 18 are followed as has been done in the cases cited, then the provisions of sec. 12 (1)(b) requiring deposit of costs and payment of interest are of course quite meaningless. If we are to assume that the Act was in force by being antedated before the date of the decree then there could be by hypothesis no costs or interest under the decree required to be paid by sec. 12 (1) (b). There can be no costs of a decree that has not been passed.

6. Mr. Mukherji on behalf of the landlord Petitioner contends, however, that even if we act on the hypothesis that the new Act was in force on or before the 23rd November, 1948, and even if it be conceded that there were no actual arrears of rent on that day or even before the suit was instituted, nevertheless the fact remains that there was a default under the Ordinance and, therefore, the new Act being in force on that day, a decree in favour of the landlord would not have been passed. In my opinion, this contention is not tenable. The requirement that the rent shall be paid regularly by the 15th is a substantive requirement of the law. It is not a mere matter of procedure in ejectment suits. Certainly, the requirement to that effect under the Ordinance has died with the Ordinance. Sec. 45 (2) of the Act has been referred to as keeping alive the provision of the Ordinance in that respect but it seems to me that those provisions have no bearing on the question. Sec. 11 of the Act provides the protection to the tenant. Sec. 12 (1) (a) provides the conditions, namely, the benefit of sec. 11 will be obtained if the tenant pays the rent allowable under the Act to the full extent within the time fixed in the covenant or in the absence of such contract on the 15th day of the month following that for which the rent is payable. This provision operates only from the date when the Act came into force, namely, the 1st December, 1948, or if we accept it to be antedated, to the date of the decree, the 23rd November, in this case. As regards the past, the provision is made in sec. 12 (1) (b). Any sins of the past by way of allowing arrears to accumulate will be wiped provided that those arrears are paid up within one month of the date of the commencement of the Act, namely, the 1st December, 1948. Here, in this case there were no arrears to be paid yet it is contended that deposits under the Ordinance by way of late payment of rent constituted defaults under the new Act. If that be so, then the protection given by sec. 12 (1) (b) would be quite useless, for if there were arrears necessarily there must be defaults in the sense that the rent in arrears not only has not been paid in due time according to the contract or by the 15th of the month but has not been paid at all. If it was intended by the new Act to debar a tenant from being given the benefit of sec. 11 because of any default in payment by due date made by him prior to the Act coming into force under the terms of the Ordinance or any other law for the time being in force then it was essentially necessary for that to have been clearly stated in the Act. On the contrary, the provisions of sec. 12 (1) (b) show that exactly the opposite was the intention. If the contention is that sec. 12 (1) (a) is to be taken to have its retrospective effect so that any failure to pay by the 15th of the month by a tenant in the past will be a default debarring him from the benefit of sec. 11, then the matter goes far beyond the mere period of the Ordinance or indeed of any previous rent restriction law in force and no limit whatever can be put to the retrospective operation of the Act so that anybody who has been unfortunate to be in possession of the same premises for, say, 20 or 30, who can be shown 30 years ago to have failed to pay his rent by the 15th of the month, a provision made retrospectively operative under sec. 12 (1) (a) on the argument advanced, would be liable to be evicted or rather would lose the benefit of the protection given by sec. 11. This proposition, in my opinion, is quite untenable.

7. The result is that I hold that the fact that in the suit it was found that there was default under the Ordinance could not have deprived the tenant of the benefit of sec. 11 of the new Act on the hypothesis that the new Act had been in force on the 23rd November, when the decree in this case was passed. Therefore, in any view of the provisions of sec. 18 of the Act, the learned Munsif was right in rescinding the decree of the 23rd November, 1948, and no case for interference with his order has been made out.

8. The Rule is accordingly discharged with costs.