1. This is an application by the Defendant under sec. 18 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, for an order that the decree passed in this suit be vacated and for leave to pay in arrears of rent within the time to be fixed by the Court and for other reliefs.

2. The Defendant was a tenant of the Plaintiff in respect of shop room and a store room at premises No. 114|1, Cotton Street. In August, 1949, the Plaintiff instituted this suit for ejectment of the Defendant from these rooms, for recovery of arrears of rent, taxes, electric charges and for other reliefs. He alleged, firstly, that there was default in payment of rent for three consecutive months and therefore, the tenancy stood ipso facto terminated and he also alleged that the tenancy as to one room has been forfeited on account of certain branches of the covenant.

3. The suit was tried before Mr. Justice Sarkar, He held, firstly, that there was default in payment of rent for three consecutive, months and, therefore, the tenancy stood ipso facto determined; He also held that no relief could be granted on the basis of forfeiture inasmuch as due notice under sec. 114 (a) of the Transfer of Property Act had not been served. On the basis of this findings on the 21st March, 19-50, his Lordship passed a decree for possession and he also passed a decree for arrears of rent and taxes and for mesne profits and certain directions as to payment of monies deposited by the Defendant with his attorney, Mr. B.M Bagaria, was also given. On that very day Mr. Bagaria paid over to the Plaintiff the sum of Rs. 1,382 which was lying deposited with him.

4. On the 31st of March, 1950, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (which I will refer to as the “present Act”) came into force. On the 24th of April, 1950, this notice of motion was taken out.

5. The matters to be determined on this application relate mostly to the construction of sec, 18 of the present Act. That section reads as follows:—

“18 (1) Where any decree for recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the ‘trial Court’ within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this sub-section till the appli- cation has been dismissed under sub-sec. (4).

(2) The Court shall, as early as may be, serve notice of the application on the landlord and after hearing the parties if the landlord appears, determine the amount of rent which would have been payable by the tenant and would be in arrears if the tenancy continued unbroken up to and including the month in which the order dated hereafter is to be made, and order the tenant to pay the said amount as also the amount of interest on such arrears of rent calculated at the rate of nine and three-eighth per centum per annum together with such costs, if any, as may be adjudged to the landlord, within such time, not later than forty days, from the date of the order, as the Court may fix.

(3) If the tenant pays the said sum within the time fixed, the Court shall vacate the decree for ejectment with all consequential orders, and the tenancy shall continue as if it never terminated.

(4) On failure of the tenant to make the payment within time his application shall be dismissed with such costs as the Court may award to the landlord.

(5) If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Court or in Court of first or second appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Court shall exercise the powers of granting relief against ejectment given by sec. 14 of this Act following the provisions and procedure of the Act, following the provisions and procedure of that section, as far as may be necessary, and for the said purpose shall make such order for amendment of pleadings, production of evidence remand, payment of costs as may be necessary or just.

6. Under the section, application is to be made to the trial Court. Ordinarily the application should have been made before Mr. Justice Sarkar who tried the suit. With the leave of his Lordship and by the consent of the parties I have tried this motion.

7. Counsel for the Respondent contended that the application was not maintainable inasmuch as under this section notice of the application has to be issued by the Court and that no such notice has been issued. It is true that only a notice of motion has been taken out and no notice has been served by the Court. It is, however, the duty of the Court to serve the notice as required by the Act and, therefore, I proposed to adjourn the application in order to enable the Court to serve the notice. The Respondent's Counsel thereupon expressly abandoned this objection and requested me to proceed with the application on the footing that the notice as required by the section has been served.

8. An application for rescission or variation of a decree for possession of any premises passed before the present Act is maintainable only if the following conditions are satisfied:—

(a) The applicant is the tenant against whom a decree for ejectment has been passed.

(b) The decree was passed on the ground of default of payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 (which I will hereafter refer to as the 1948 Act).

(c) Possession of the premises has not been recovered from the tenant.

(d) The application is made to the trial Court within sixty days from the 31st March, 1950, when the present Act came into force.

9. It is not disputed that conditions (c) and (d) have been satisfied in this case. It is, however, disputed that conditions (a) and (b) have been satisfied.

10. It is contended by Mr. A.K Sen appearing on behalf of the Respondent decree-holder that the applicant is not a tenant within the meaning of this section.

11. Landlord and tenant are defined in secs. 2 (4) and 2 (11) which are as follows:—

“2 (4). “Landlord” means any person who for the time being is receiving the rent of any premises from the tenant thereof and includes any person who is entitled to bring suit for such rent.

“2 (11). ‘tenant’ means any person by whom rent is, or but for a special contract would be, payable for any premises, and includes any person who is liable to be sued by the landlord for rent.”

12. This definition is contrasted with the definition of “tenant” given in the Calcutta House Rent Control Order, 1943, sec. 2 (5), the Calcutta Rent Ordinance, 1946, sec. 2 (8) and the West Bengal Premises Rent Control Act, 1948, sec. 2 (11). In all these Acts the definition of the tenant expressly included a person continuing in possession after the termination of the tenancy in his favour.

13. Mr. A.K Sen contends that—

(a) the narrow definition in the present Act was adopted by the legislature deliberately and consciously with a view to exclude a person continuing in possession after the termination of the tenancy in his favour;

(b) the applicant is not liable to pay or to be sued for rent. “Rent” is a word of technical import and does not include mesne profits. The definition in sec. 2 (11) of the present Act connotes a present and continuing liability to pay rent.

(c) Even if a person, whose tenancy has been determined by any of the modes mentioned in sec. 111 of the Transfer of Property Act is held to be a tenant, the person whose tenancy has been ipso facto determined by virtue of the provisions of sec. 12 (3) of the 1948 Act cannot be held to be a tenant. Such person is not a statutory tenant and is a mere trespasser.

(d) The vested rights of the Respondents-landlords cannot be affected except by clear words or by necessary implication.

14. In my judgment the Act must receive neither a strict nor a beneficial construction. It must receive a reasonable construction and the approach of the Court must be to give a construction which will-produce a workable system. The Act is intended to affect the vested rights of the landlord and to give relief to the tenant. The words in the Act must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved.

15. In my judgment sec. 18 of the Act is intended to give relief to persons who are ex-tenants. If a person is still a tenant, he does not need the protection of the Act. He is entitled to continue in occupation by virtue of the tenancy agreement.

16. It is obvious that sub-secs. (1), (2), (3) and (4) of sec. 18 were intended to give relief to a person who having been a tenant asked for rescission of the decree for ejectment although he no longer is a tenant at the time when he makes the application. An ex-tenant or a person whose tenancy has been broken and determined is entitled to move the Court for relief under the section. Sub-sec. (1) shows that this section can be invoked only after the decree for ejectment has already been passed. There can be no decree for ejectment unless the tenancy has been determined. Sub-secs. (2) and (.3) show that the tenancy has already been broken and|or determined. The Court is to determine the arrears of rent as if the tenancy continued unbroken after the date of the order to be passed under the section. If the tenant pays the amount which he is directed to pay by the Court, the decree is to be vacated and the tenancy is to continue as if it never terminated.

17. The phraseology used in the Rent Control Acts is neither exact nor accurate. In such Acts the words “landlord” and “tenant” and “rent” are often used so as to include ex-landlord and ex-tenant and mesne profits payable by ex-tenant. These words are often used in that special and peculiar sense and have no narrow technical meaning. Suits by ex-landlords against ex-tenants are often in such Acts described as suits by landlord against tenant and a decree passed in such suit is often described as a decree passed against a tenant. Indeed they are so described in many sections such as secs. 16 and 18 of the present Act. If a strict meaning is given to these words, these sections would be meaningless. Both the subject and the context show that these words have been used in these sections in that special and peculiar sense.

18. In several Rent Control Acts where a narrow definition of tenant was given, the word “tenant” was construed so as to include ex-tenant. The Calcutta Rent Act, 1920, defined “tenant” as meaning any person by whom or on whose account rent is payable. The word “tenant” in that Act was construed so as to include ex-tenant. Karnani Industrial Bank v. Satya Niranjan Shaw(1). The same Act was under consideration in Bithal Das Chandak v. Lal Behari Dutt(2) where Mr. Justice Rankin summarily rejected the contention that the word “tent” is used in a narrow technical sense. These cases referred to and relied on, Remon v. City of London Real Property Co.(3) a decision under the Increase of Rent and Mortgage Restriction Act, 1920. A similar construction of the word “tenant” was given in Sukumari Devi v. Rajdhari Pandey(4) where the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 was under consideration.

19. The contention that the legislature intended to make a conscious and deliberate departure from the old definition and intended to exclude an ex-tenant, is without substance. If such intention is attributed to the legislature, working effect cannot be given to the Act and many of these sections would be dead letters. The legislature may Well have thought that the express inclusion of ex-tenants in the definition of the 1948 Act was superfluous and likely to lead to confusion. The definition of landlord in the 1948 Act did not expressly include ex-landlord, yet there is no doubt that the Act used the word “landlord” to include an ex-landlord. Rent was not defined but there was no doubt that the word was used so as to include mesne profits. The express inclusion of ex-tenants in the definition of “tenant” and the non-exclusion of ex-landlord and mesne profits in “landlord” and “rent” was likely to lead to confusion. In the Calcutta Rent Ordinance, 1946, the definition of tenant was identical with that given in the 1948 Act. A Bench of this Court was of the view that the express inclusion of ex-tenant in the definition was superfluous. Mitter and Akram, JJ., in the case of Keshab Mitter v. P. Ghosh (5), observed as follows:—

“The word ‘tenant’ has been used in the Ordinance in a special sense. Even apart from the definition of the word ‘tenant’ which was introduced by an amendment on the 19th May, 1944, a person whose tenancy had expired by efflux of time or whose tenancy had been determined by a notice to quit or on forfeiture or sale would still be regarded as a tenant within the meaning of the Ordinance. The word ‘rent’ used in sub-paragraphs (1) and (4) of paragraph 4 and paragraph 10 have therefore, a special meaning. It refers to the amount which would have been payable periodically—by the month, quarter or year —as if the tenancy was still continuing.”

20. It is true that a change in language may imply a change of intention. But the presumption of change of intention is not of very great weight in any statute and particularly in statutes of the type under consideration which are notoriously ill-drafted. In this connection I will refer to the observation in Maxwell's Interpretation of Statutes, English Edition, at pages 280 and 282:

“But just as the presumption that the same meaning is intended for the same expression in every part of an Act is, as we have seen, not of much weight, so the presumption of a change of intention from a change of language (of no great weight in the construction of any documents) seems entitled to less weight in the construction of statute than in any other case, for the variation is sometimes to be accounted for by a mere desire to avoid the repeated use of the same words, sometimes by the circumstances that the Act has been compiled from different sources, and sometimes by the alterations and additions from various hands which Acts undergo in their progress through parliament. Though the statute is the language of the three estates of the realm, it seems legitimate, in construing it, to take into consideration that it may have been the production of many minds and that this may better account for any variety of style and phraseology which is found than a desire to convey a different intention.

“A change of language effected by the omission in a later statute of words which occur in an earlier one would make no difference in the sense when the omitted words of the earlier enactment were unnecessary.

“Even when the omitted words were material to the sense but might be implied, the omission would not, in itself, be considered material, if leading to consequences not likely to be intended.”

21. Observations to the same effect will appear in Maxwell's Ninth Edition, pages 329, 330.

22. In my judgment the express inclusion of a person continuing in possession after the termination of a tenancy in his favour in the definition of “tenant” in the 1948 Act was unnecessary and superfluous. The definition of “tenant” in the present Act in an appropriate case by implication includes ex-tenants. The next question is whether that definition includes tenants whose tenancy was ipso facto determined under sec. 12 (3) of the 1948 Act.

23. Lord Atkin in the case of Karnani Industrial Bank v. Satya Niranjan Shaw, observed as follows:—

“If in fact the Act applies in appropriate cases to an ex-tenant, it cannot make any difference whether the tenancy came to an end by effluxion of time, by act of the landlord, or by act or default of the tenant.”

24. This observation applies with full force to the present case. If in fact sec. 18 of the present Act applies to the ex-tenants and includes tenants whose tenancies have been determined in any of the modes mentioned in sec. 111 of the Transfer of Property Act, I see no reason why it should not include tenants whose tenancy was ipso facto determined by non-payment of rent under the provisions of the 1948 Act. Such person is also an ex-tenant. It is true that such a person is a trespasser on termination of his tenancy but so also are all other tenants whose tenancy had been determined, and who were not entitled to the protection of the 1948 Act. Such a person is a person whose tenancy has been determined by his default and in the language of Lord Atkin can be properly described as a tenant under the present Act. The applicant is, therefore, a tenant against whom the decree for ejectment has been passed.

25. I have been referred to a judgment of Mr. Justice P.B Mukherjee in Manick Lal Dutt v. S. Dabiruddin Ahmed(6). In that case his Lordship was dealing with a case under sec. 18 (5) of the present Act. With very great respect, I am constrained to differ from the judgment given in that case in so far as it is in conflict with the observations made by me in this case.

26. Mr. A.K Ses next contends that a tenant whose tenancy is ipso facto determined is not a statutory tenant. Such a person is outside the pale of the protection of the 1943 Act. When the statute speaks of a ground of eviction, according to Mr. Sen, it speaks of a ground with reference to a statutory tenant and grounds of eviction have no meaning except with reference to a statutory tenant. He has referred me to certain passages in Meggarry's Rent Act, 4th Edition, pages 89, 90, 92 and 95 and Brown v. Brash(7), Oak Property, Ltd. v. Chapman(8) and Brown v. Draper(9). Mr. Sen contends that the decree in this case was not passed on the ground of default in payment of arrears of rent and, therefore, the applicant is not entitled to any relief.

27. Strictly, the language of the section is not appropriate so as to bring within its ambit even the case of a decree which has been passed against the tenant whose tenancy has been determined and who had defaulted in payment of rent. Non-payment of rent is not strictly a ground of ejectment. The grounds of ejectment are what they were before the Rent Control Acts and provided in the Transfer of Property Act. No decree for ejectment could be passed unless the tenancy had been duly terminated. Punctual payment of rent is, however, a good defence and gives protection under the Rent Control Act. Failure to do so is the negation of such defence. Chakravarty, J., in the case of O.C Ganguly v. Kamalpat Singh(10) and Tarak Chand v. Asoke Prasanna(11) discussed this matter elaborately. Still, the obvious intention of the legislature was to include within the ambit of the section the case of a tenant against whom a decree for ejectment would not have been passed but for the fact that he defaulted in payment of rent. This was held in the case of Haji Md. Ekramul Huq v. Rebati Bhusan Mukherjee(12) a decision under sec. 8 (b) of the Calcutta Rent Control Order; 1943. When the Rent Control Act speaks of a ground of eviction, it means the decisive ground or reason for eviction contemplated by the Act but for which a decree for ejectment could not have been passed.

28. A decree for ejectment passed because of default in payment of rent for three consecutive months can however be strictly described as a decree passed on the ground of default in payment of arrears of rent. In such a case there were arrears of rent and there was also default in payment of such arrears for the second and the third consecutive month and thereafter. The default ipso facto determined the tenancy and itself furnished the ground or cause of action for ejectment. Even a notice to quit was not necessary.

29. The special statutes assume here that ordinarily a tenant is protected from eviction. The ordinary protection was and is lost if one of the grounds specified is the statute is proved. Default in payment of rent for one month is one ground for eviction. Default in payment of rent for three months was a more certain ground. In such a case the tenant had not even a locus peneten-tiae. The penalty for non-payment of rent for three consecutive months was a special feature of the 1948 Act. Still it was a feature of the Act and a ground for eviction provided for by the Act.

Sec. 11 of the 1948 Act gave to the tenant protection against ejectment. By sub-sec. (1) of sec. 12 of that Act protection was not available if there was failure to pay rent within the time mentioned. Sub-secs. (2) and (3) of sec. 12 of that Act provided as follows:—

(2) Subject to the provisions of sub-sec. (3), no suit or proceeding instituted against a tenant after the commencement of this Act for the recovery of possession of any premises on the ground of default in making any payment or deposit referred to in sub-sec. (1) shall be further proceeded with if, within one month from the date of service of process on the tenant, he pays through the Court all arrears of rent allowable by this Act up to date together with interest thereon at the rate of six and a quarter per cent, per annum and such costs as the Court may award.

(3) Notwithstanding anything contained in this Act or in any other law for the time being in force, if a tenant fails for three consecutive months to pay or deposit in accordance with the provisions of this Act any rent payable by him in respect of any premises which has accrued due after the commencement of this Act, the interest of the tenant in such premises shall on such failure be ipso facto determined and he shall no longer be deemed to be a tenant.”

30. Inspite of the default in payment of rent in the manner provided for in sub-sec. (1) of sec. 12 of the 1948 Act, the suit for ejectment of the tenant on the ground of such default had to be stayed if the tenant paid the arrears of rent with interest and costs within a certain time after the institution of the suit. Sub-sec. (2), however, was subject to sub-sec. (3) under which failure to pay rent for three consecutive months ipso facto terminated the tenancy. In such a case the suit could not be stayed at all but the suit still remained a suit for ejectment on the ground of default in payment of rent.

31. It is to be noticed that sec. 17 of the 1948 Act laid down a special procedure for suits for eviction inter alia on the ground of noncompliance with the provisions of the Act as to payment of rent. I have no doubt that section applied to all suits on such ground whether the non-compliance was for three consecutive months or not.

“The matter may be looked at from a simpler point of view. The ground on which Mr. Justice Sarkar passed the decree will appear from his judgment read with the pleadings and the issues. I have no doubt, looking at the judgment, the plead-ings and the issues, that the real reason and the sole ground on which Mr. Justice Sarkar passed the decree was default in payment of arrears of rent under the 1948 Act.

32. It follows, therefore, that the applicant is entitled to apply for relief under sec. 18. It is my duty to determine the amount of rent which would be payable and would be in arrears if the tenancy continued unbroken up to 2007 and also the amount of the interest on such arrears of rent. It is also my duty to adjudge what, if any, costs are to be paid to the Respondent decree-holder.

33. Counsel for both parties inform me that (hey will agree as to this amount. I will, therefore, pass final orders day after tomorrow.

34. The tenancy is according to the Hindi calender. The present monthly tenancy is the month of Jaith, 2007. It is agreed by Counsel on both sides that the amount of rent which would have been payable by the tenant applicant and would be in arrears if the tenancy continued unbroken, up to and including the month of Jaith 2007, taking into account all payments up to date as also the amount of interest on such arrears of rent, calculated at the rate of 9 ⅜th per cent per annum, is the sum of Rs. 1,714-2-6. I propose also to award to the Plaintiff the costs of the suit and of the applications made in that suit, and also the costs of this application and the execution proceedings. It is agreed by Counsel on both sides that such costs may be assessed at a sum of Rs. 1,300. The total sum, therefore, which ought to be paid by the applicant tenant to the Plaintiff, is the sum of Rs. 3,014-2-6. I order the applicant tenant to pay this sum of Rs. 3,014-2-6 to the Plaintiff's attorney, who will receive this money on behalf of the Plaintiff within two weeks from to-day. The Plaintiff's attorney will be at liberty to receive this money without prejudice to the right of the Plaintiff to appeal from this order. Upon the undertaking of the applicant tenant that he will pay this sum within the time mentioned above, the attachment levied on his goods will stand forthwith released, and the applicant tenant will be at liberty to withdraw all moneys deposited by him up to date with the Rent Controller, and the Plaintiff, if necessary, will give his consent before the Rent Controller for such withdrawal.

35. If the payment is made as directed by me within the time fixed hereinabove, the decree for ejectment will stand vacated, and the tenancy shall continue as if it never terminated.

36. If the payment is made, the decree against the Defendant applicant for payment of money and also for costs as also all orders for costs made in the suit will stand vacated.

37. This is a consequential order which follows from the payment.

38. In default of the payment being made within the time mentioned above, this application will stand dismissed with costs.

39. This portion of the order will be incorporated with my previous order and one order will be drawn up.

40. It is agreed that the sum of Rs. 1,300 is the assessed cost of the suit and of all applications therein after setting off costs payable to either party as also of this application and of the execution proceedings.

41. This agreement as to the assessment of costs as also as to the arrears of rent and interest thereon is strictly without prejudice to the right of the Plaintiff to appeal.

42. Solicitors: B.M Bagaria for the Applicants; J.K Bose for the Opposite Party.

N.D.R