The Judgment of the Court was as follows:

1. The Plaintiff sues the Defendant for recovery of possession of premises No. 50, Burtolla Street, Calcutta, for arrears of rent, mesne profits and other reliefs. The Plaintiff alleges that he is a lessee of premises No. 50, Burtolla Street. The Defendant was a monthly tenant under the Plaintiff according to the Bengali calender in respect of the said premises at a rent of Rs. 240 per month up to 14th Agrahayan, 1355 B.S (corresponding to 30th November, 1948) and thereafter at the rent of Rs. 285 per month. By a notice to quit dated the 23rd March, 1949. the tenancy was terminated and the Defendant was called upon to quit and vacate the premises at the expiry of the month of Chaitra, 1355 B.S corresponding to the 13th April, 1949. The Defendant has without the consent or authority of the Plaintiff or his predecessor-in-interest sublet a major portion of the said premises for more than six consecutive months and is realising large sums as rents from the sub-tenants. The Defendant has also failed and neglected to pay rents for the months of Jaistha, Assar, Sraban, Bhadra and Aswin, 1355 B.S (15th May, 1948 to 17th October, 1948) amounting to Rs. 1,200 at the rate of Rs. 240 per month. The Defendant also failed to pay rent from Magh, 1354 B.S to the end of Baisakh, 1355 B.S (corresponding to the period from 7th February, 1948 to 14th May, 1948) amounting to Rs. 776 for which a suit being Suit No. 4081 of 1948 filed by the Plaintiff was pending in the Small Causes Court, Calcutta. In the circumstances the Plaintiff filed this suit for ejectment and other reliefs as stated above.

2. In the written statement filed by the Defendant on the 15th June, 1949, it is stated that the premises No. 50, Burtolla Street, belonged to a trust created by one Parbati Debi. The Defendant's father Dwarkadas Mansingka was a tenant under the Trust Estate as monthly tenant for many years and after his death in 1946 the Defendant for self and as karta of a joint Hindu Mitakshara family had become the monthly tenant of the premises. The Defendant admits that the rate of rent was Rs. 240 up to the end of November, 1948, and thereafter, Rs. 285 per month. He denies the validity of the notice to quit and denies that the major portion of the premises had been sublet. It is stated that a portion of the premises had been sublet by the Defendant's father long before the Calcutta Rent Ordinance, 1946, or the West Bengal Rent Control Act, 1948, and the sub-tenants have since been continuing in posses- sion. It is stated that the Defendant has deposited in Court the rents for Jaistha, 1355 B.S to Aswin, 1355 B.S and for Chaitra, 1355 B.S to Jaistha, 1356 B.S together with interest and costs according to the requirements of sec. 12 (2) of the West Bengal Premises Rent Control Act, 1948, and the Defendant also deposited in the Small Cause Court the claim and costs of the Suit No. 4081 of 1948 filed by the Plaintiff. In the circumstances the Defendant claims reliefs under and protection of the West Bengal Premises Rent Control Act, 1948. It appears that the lease in favour of the Plaintiff was executed by the trustees of the Trust Estate on the 7th February, 1948. On the 29th July, 1948, the Defendant in this suit instituted a suit in this Court being Suit No. 2543 of 1948 for declaration that the lease dated the 7th February, 1948, in favour of the Plaintiff was collusive and not binding and for other reliefs. On the 24th September, 1948, the suit was dismissed by N.C Chatterjee, J. An appeal was preferred by the Defendant and during the pendency of the appeal pursuant to an order of the Appeal Court made on the 17th November, 1948, the Defendant paid rent from Kartick, 1355 B.S to Falgoon, 1355, B.S to the Solicitor for the Plaintiff. On the 16th March, 1949, the appeal preferred by the Defendant was dismissed.

3. The present suit was filed on the 9th May, 1949. The writ of summons was served on the 12th May, 1949. On the 13th May, 1949, the Defendant submitted to a decree being passed in the Small Cause Court suit for the claim and costs of that suit and oh the 28th May, 1949, he deposited in that Court Rs. 901-9 being the amount of claim and costs in that suit. On the 2nd June, 1949, the Plaintiff withdrew the said sum from the Small Cause Court.

4. On the 11th June, 1949, the Defendant applied before this Court for leave to pay through Court in terms of sec. 12 (2) of the West Bengal Premises Rent Control Act, 1948, the arrears of rent with interest and costs and prayed for stay of the suit. P.B Mukharji, J., granted leave to pay the money on the ex parte application of the Defendant on the 11th June, 1949.

5. On the 13th June, 1949, the Defendant deposited Rs. 2,525 with the Registrar of this Court made up as follows:—

(1) Rent from Jaistha to Aswin, 1355, B.S (15th May, 1948 to 17th October, 1948) at Rs. 240 per month Rs. 1,200. (2) Interest Rs. 62-8. (3) Rent from Chaitra, 1355 B.S to Jaistha, 1355 B.S at Rs. 285 per month Rs. 855. (4) Interest Rs. 3. (5) Costs of the suit as assessed by the Court Rs. 350. (6) Registrar's Commission and other charges Rs. 54-8. Rs. 2,525.

6. The following issues were raised in this suit:—

(1) Has the Court jurisdiction to entertain the suit?

(2) Should the suit be stayed under the provisions of sec. 12 (2) of the West Bengal Premises Rent Control Act, 1948?

(3) Is the Defendant defaulter in payment of rent as alleged in paragraphs 6 and 7 of the plaint or at all?

(4) Has the Defendant without the consent or authority in writing of the Plain- tiff, sublet a major portion of the premises in suit for more than six consecutive months?

(5) Has the Defendant's tenancy been validly determined by notice to quit dated the 23rd March, 1949?

(6) To what reliefs, if any, is the Plain tiff entitled?

7. Issue No. 1.

8. It is contended by the learned Counsel for the Defendant that since the West Bengal Premises Rent Control Act (XVII of 1950) came into force the original jurisdiction of this High Court to try or entertain a suit by a landlord against a tenant for recovery, of possession has been taken away except suits in which the rent payable for one month in respect of the premises in suit exceeds Rs. 500 and the premises is situated on land wholly within the Ordinary Original Civil Jurisdiction of the Calcutta High Court. Reliance is placed on sec. 16 of the Act of 1950 which runs as follows:—

9. Notwithstanding anything contained in any other law, a suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts as set out in Schedule “B” and no other Court shall be competent to entertain or try such suit.”

10. It is pointed out that there is difference in the wording of sec. 16 of the old Act of 1948 and the wording of the present sec. 16 in the; new Act of 1950 and it is submitted that the new section imposes an absolute bar not only to try or entertain suits for possession instituted after the commencement of the Act but also suits for recovery of possession by a landlord against a tenant pending on the date when the new Act came into force, i.e, on the 1st of April, 1950.

11. It is a fundamental rule of interpretation of statutes that no statute shall be construed so as to have a retrospective operation unless the language is such as mainly requires such construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. In order that a statute may have a retrospective effect it must be made so by express enactment or by necessary intendment. In Halsbury's Laws of England, Vol. 31, Paragraph 670, it is stated that a statute is prima facie prospective and does not interfere with existing rights unless it contains express words or there is the plainest implication to that effect. It was contended that as sec. 16 of the new Act affects matters of procedure only it should be considered as retrospective in effect but it appears to me that a right to have a suit entertained or tried in the original jurisdiction of the High Court is more than a mere matter of procedure and it affects substantive and vested or existing rights.

12. A large number of authorities was cited before me by Mr. B.C Mitra, the learned Counsel for the Defendant. It is unnecessary to prolong this judgment by a detailed discussion of the individual cases. The decisions in those cases turned on the construction of the wording of the particular statutes concerned in those cases. It is sufficient to point out that they all re-affirm the general propositions that I have stated above.

13. In so far as the new Rent Control Act of 1950 is intended to be retrospective in operation, it has been made so by express words as for example, sec. 18 (5) of the new Act makes certain provisions of the new Act applicable to pending suits.

14. Further, sec. 45 of the new Rent Control Act of 1950 repeals the West Bengal Pre- raises Rent Control Act of 1948. The effect of a repeal of a statute by another statute is provided by sec. 8 of the Bengal General Clauses Act (I of 1899) the relevant portion whereof is as follows:—

Sec. 8:

Whether this Act or any Bengal Act made after the commencement of this Act repeals any enactment hereto made or hereafter to be made then unless a different intention appears the repeal shall not (b) affect the previous operation of any enactment so repealed or any thing duly done thereunder or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred in any enactment so repealed or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, etc., and any such investigation, legal proceeding or remedy may be instituted, conducted or enforced as if the repealing Act had not been passed.

15. It may be pointed out that sec. 6 (e) of the General Clauses Act, 1897, is similarly worded and in Piare Dusadh v. King Emperor(1), Spens, C.J, held that on the principle embodied in sec. 6 (e) of the General Clauses Act, 1897, the effect of the repeal of an enactment on cases pending at the time of the repeal would be that they would continue as if the enactment had not been repealed. But this is subject to the qualification that the repealing enactments contains no provision or indication to the contrary. I do not find anything in the language of sec. 16 of the new Act of 1950 which lends colour to the supposition that the section is intended to have any retrospective operation. On the other hand the words “shall lie to the Courts” and “such suit” indicate that the section is designed to have prospective effect only, The new section specifies in which Courts future suits will be instituted and tried.

16. I hold that the jurisdiction of this Court to try and give relief in suits by landlords against tenants for recovery of possession pending in the High Court on the date when the new Act of 1950 came into force remains unaffected.

17. Issues Nos. 2 and 3.

18. It is alleged in paragraph 7 of the plaint and the allegations are not disputed by the Defendant's Counsel that the Defendant did not pay rent to the Plaintiff from 7th February, 1948 to 14th May, 1948 (24th Magh, 1354 to the end of Baisakh, 1355 B.S) and a suit was filed in respect of such arrears in the Small Cause Court, Calcutta, and was pending on the date when the present suit was filed. It appears from the records of the Small Cause Court suit that the Small Cause Court suit was numbered 4061 of 1948 and was instituted on the 19th May, 1948.

19. It is also alleged in paragraph 6 of the plaint and this is also not disputed by the Defendant's Counsel that the rents for Jaistha to Aswin, 1355 B.S (15th May, 1948 to 17th October, 1948) amounting to Rs. 1,200 were in arrears at the date of the present suit and had not been paid to the Plaintiff.

20. After the present suit was filed on the 9th May, 1949, and the writ of summons was served on the Defendant on the 12th May, 1949, the Defendant submitted to a decree for the amount claimed with costs in the Small Cause Court suit on the 13th May, 1949 and deposited Rs. 901-9 in the Small Cause Court on the 28th May, 1949, on account of such claim and costs. No amount was paid on account of interest on the arrears of rent in the Small Cause Court suit. According to the Plaintiff such interest would amount to Rs. 53-7.

21. On the 11th June, 1949, the Defendant made an application in this suit for leave to pay through Court the arrears of rent then outstanding with interest and costs as contemplated by sec. 12 (2) of the West Bengal Rent Control Act of 1948, and after obtaining leave from the Court ex parte, deposited into Court Rs. 2,525, the particulars whereof I have already set out in the previous part of this judgment.

22. It appears that on the 20th June, 1949, notice was given of the fact of the deposit of Rs. 2,525 to the Plaintiff and on the 26th June, 1949, the application of the Defendant under sec 12 (2) of the Rent Act was disposed of and the Plaintiff became entitled to withdraw the money from the Court.

23. It is contended by Mr. S.K Basu the learned Counsel for the Defendant that his client having complied with the requirements of sec. 12 (2) of the Rent Act, 1948, is entitled to have the suit stayed in terms of that section.

24. The Counsel for the Plaintiff Mr. A.K Sen, however, contends that the arrears of rent concerned, being arrears which accrued before the Act of 1948 came into force the Defendant should have paid all the arrears with interest and costs as provided in sec. 12 (1) (b) of the Rent Act, 1948 within one month after the date of the commencement of the Act, and not having done that the Defendant cannot avail himself of sec. 12 (2) of the Act. According to the learned Counsel sec. 12 (1) (b) and sec. 12 (2) are mutually exclusive. I do not think that this contention is sound. It is clear that when a default in payment or deposit in terms of sec. 12 (1) is made the ground of a suit for ejectment that sec. 12 (2) comes into play. Sec. 12 (2) presupposes the existence of default in compliance with the provision of cls. (a), (b) and (c) of sec. 12 (1) before it can be invoked in aid of the tenant. It thus appears that a tenant can avail himself of the benefit of sec. 12 (2) inspite of the fact that he did not comply with the cls. (a), (b) or (c) of sec. 12 (1),

25. It is next contended by the learned Counsel for the Plaintiff that this suit having been filed on the 9th May, 1949, on the ground inter alia of default in payment of rent the recovery of which was the subject-matter of the Small Causes Court suit, it became incumbent on the tenant if he wanted to avail of sec. 12 (2) to pay interest at the rate of six and a quarter per cent, on the amount of rent claimed in the Small Causes Court suit. The Defendant has not done that within one month from the service of the summons nor is the amount deposited in Court on the 13th June, 1949, sufficient to cover this amount of interest. In the circumstances the Defendant cannot get the benefit of sec. 12 (2) of the Act. In my view this contention is not without substance. The moment this suit was filed and the summons was served, by virtue of sec. 12 (2) of the Act of 1948 there arose, an obligation upon the tenant to pay interest at the rate of six and a quarter per cent, on the arrears of rent then outstanding. This obligation or liability to pay interest arose also in respect of the claim in the Small Causes Court suit and it remains undischarged till the present day.

26. It is further contended by the learned Counsel for the Plaintiff that sec. 12 (2) of the Act enjoins that the tenant must pay through Court within a period of one month. He points out that there is a distinction between the words “payment into Court,” “deposit in Court” and “payment through Court.” According to him “Payment through Court” within a month means that the money must be paid or lodged into Court in sufficient time so as to reach the hands of the landlord within a month. In my opinion the contention is sound. The obligation of a tenant does not end by simply depositing the money in Court but he must further see that the money deposited actually reaches or there is a possibility of the money reaching the landlord within the prescribed period. In the present case the money was not deposited till the 13th June, 1949, and notice of the deposit was not given to the landlord till the 20th June, 1949.

27. The Counsel for the Plaintiff further pointed out that the Defendant also failed to pay rent for the month of December, 1948, at the rate of Rs. 285 per month. Therefore Rs. 45 was in arrear at all material times and is still in arrear, and as the amount was not paid at the time the deposit was made under sec. 12 (2) the Defendant cannot get the benefit of sec. 12 (2) and have the suit stayed. It is admitted in the written statement that the rent for December, 1948, was agreed to be paid at the rate of Rs. 285 and it is also admitted that rent for December, 1948, was actually paid at the rate of Rs. 240 only.

28. I hold that the requirements of sec. 12 (2) of the Act of 1948 were not complied with by the Defendant and he is not entitled to the benefit of that section.

29. The next question that arises for consideration is whether the Defendant is entitled to claim any relief under sec. 14 of the new Rent Control Act of 1950.

30. It is contended by the learned Counsel for the Plaintiff that if sec. 14 is applicable to the present case the section should be applied as a whole including the proviso which deprives the tenant of the benefit of protection against eviction if the tenant makes default in payment of two months' rents on three occasions within a period of 18 months and as the Defendant has defaulted on three occasions between 24th Magh, 1354 B.S and Baisakh, 1356 B.S he should be deprived of the benefit of sec. 14 of the Act of 1950.

31. I accept this contention of the Plaintiff as sound. In my opinion it is clear from the wording and scheme of sec. 18 (5) of the new Act that the legislature intended to grant reliefs under sec. 14 to such tenants as are entitled to get reliefs under that section. The proviso to sec. 14 disentitles a tenant to get reliefs under sec. 14 if he commits default as contemplated in the proviso. The Court's power of granting reliefs under sec. 14 is limited or restricted by the proviso in that section. The proviso is an integral part of the section and sec. 18 (5) makes the entire sec. 14 including the proviso applicable to pending suits.

32. I hold that the Defendant having committed default of the nature contemplated by the proviso to sec. 14 is not entitled to the benefit of protection against eviction afforded by sec. 14 of the new Act.

33. Issue No. 4.

34. [His Lordship discussed issue No. 4 and held that it was not established that a major portion of the premises had been let out to sub-tenant. The issue was decided on favour of Defendant.]

35. Issue No. 5.

36. This has not been pressed by the Defendant and I decide the issue in favour of the Plaintiff.

37. Issue No. 6.

38. It appears that (the Plaintiff has been paid at the rate of Rs. 285 per month for occupation of the Defendant till the end of Chaitra, 1356 B.S (Ex. O).

39. There, will, therefore, be a decree in favour of the Plaintiff for possession of the premises and for mesne profits from 1st Baisakh, 1357 B.S at the rate of Rs. 285 per month till possession is delivered.

40. The Defendant will pay to the Plaintiff the general costs of the suit and half the cost of hearing before me and also all reserved costs, if any, oh scale No. 2. Certified for two Counsel.

41. Solicitors: N.C Baral & Pyne for the Plaintiff; P.D Himatsingka for the Respondent.

A.K.D.G