Banerjee, J.:— This is an appeal by the landlord from an order made by Bachawat, J., on May 24, 1950, allowing an application under section 18(1) of the West Bengal Premises Rent Control Act, 1950, made by the tenant who is the respondent in this appeal. That section is as follows:
“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 application has been dismissed under sub-section (4).”
2. The facts of the case shortly are these:
3. The plaintiff (landlord) filed a suit for possession of certain rooms in premises No. 21B, Canning Street, Calcutta. It was filed on May 13, 1948. The tenant held the rooms as a monthly tenant at a rent of Rs. 34 per month. In the plaint the plaintiff alleged that the defendant had made default in payment of rent from July, 1946, to December, 1947, and that on or about November 28, 1946, he filed a suit (being suit No. 4309 of 1946) in the Court of Small Causes, Calcutta, against the tenant for recovery of arrears of rent from July to October, 1946: the defendant deposited Rs. 136 in that Court and satisfied the plaintiff's claim in that suit and he also had deposited Rs. 204 on different dates in the office of the Rent Controller on account of rent from November, 1946, to April, 1947: that at the date of the institution of the suit there was due by the tenant to the plaintiff on account of rent Rs. 272 (May, 1947, to December, 1947). He further alleged in the plaint that a notice to quit had been duly served on the defendant on December 13, 1947, and the tenancy had been determined. On these allegations he asked for the reliefs I have stated. The tenant filed a written statement on 2nd August, 1948. The West Bengal Premises Rent Control Act of 1948 came into force on December 1, 1948. At the hearing of the suit which took place on January 30, 1950, Counsel on behalf of the defendant said that the only defence he took was that as he had paid all arrears of rent as contemplated by section 12(1) (6) of that Act, no decree could be passed against the tenant. There was no dispute in the case that interest and costs as contemplated by that section of the Act of 1948 had not been paid. The defendant's Counsel's argument at the hearing was that only the rent had to be paid within the month, but not interest or costs. He said that costs at the time of the hearing were not assessed or ascertained. So he contended that if the arrears of rent were paid within the time mentioned in sec. 12 (1)(b), his client would be entitled to pay interest and costs at any other time and yet would be entitled to get relief. This contention was not accepted by the Court and a decree for possession and mesne profits was made on January 30, 1950. I set out below the following portion from the judgment delivered on that occasion:
“In my view the position is shortly this. The tenant must pay all arrears of rent plus interest and costs within the month in terms of sec. 12, sub-sec. 1(b) or sub-sec. (2), as the case may be. If the landlord refuses to accept the rent the tenant must deposit the rent as contemplated in sub-sec. (c) or pay it through the Court as provided in sub-sec. (2). If the tenant does that, he will get the protection under the Act. But if he does not, it will be no defence to a suit for ejectment that the tenant has paid the rent within the month but not the interest and the costs.”
4. A decree was drawn up pursuant to the judgment. There was no decree for payment of any arrears of rent and there could not be any, as before the suit came up for hearing, the arrears had been paid.
5. On May 6, 1950, the tenant filed the application, out of which this appeal arises, under section 18(1) of the West Bengal Premises Rent Control Act, 1950, to rescind or vary the decree. Bachawat, J., allowed the application and granted relief under that section. From the order of Bachawat, J., this appeal has been taken.
6. Two points have been argued before us by learned Counsel on behalf of the appellant; first, that the decree was not made on the ground of default in payment of arrears of rent under the provisions of the Act of 1948, and therefore the tenant was not entitled to claim relief under sec. 18(1): secondly, that by the West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950, the Act of 1950 has been amended; the amendments are retrospective in their operation: under the amended Act the applicant is not a tenant who is entitled to the relief claimed. The relevant sections are secs. 5 and 6 of the Amending Act. They are as follows:—
“(5) In all applications made under sub-section (1) of section 18 of the said Act, which are pending at the commencement of this Act and in all suits referred to in sub-section (5) of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied.
(6) Where at any time between the commencement of the said Act and of this Act, an order or decree for the recovery of possession of any premises has been made or passed by any Court but possession of such premises has not been recovered in execution of such order or decree and the Court is of opinion that the order or decree would not have been made or passed if this Act had been in force when the order or decree was made or passed, the Court may, on application by the tenant within sixty days of the commencement of this Act, rescind or vary the order of decree on such terms and conditions as it deems necessary for the purpose of giving effect to the provisions of section 18 of the said Act as amended by this Act.”
7. As to the first point my view is that the decree was not made on the ground of default in payment of arrears of rent. In order to ascertain on what ground the decree was made, the Court has got to look to the judgment and the decree. It is perfectly immaterial whether that judgment or decree was wrong as to the ground on which the decree was made. When an application is made under section 18(1), what the Court has got to do is to see whether on the judgment or the decree it can be said that the decree against the tenant was passed on the ground of default in payment of arrears of rent. Reading the judgment and the decree, the Court has to find out the ground on which the decree was made. The Court is not entitled to speculate or substitute its own judgment for the previous judgment. Reading the judgment and the decree in, the present case I am unable to say that the decree was passed on the ground of default in payment of arrears of rent. Though in the plaint the landlord claimed arrears of rent, at the time of the hearing it was admitted by the landlord's counsel that all arrears had been paid. If arrears of rent had been paid, how could a decree possibly be passed on the ground of default in payment of arrears of rent? It is quite true that the plaint was filed on the ground that rent was in arrears, but that by itself does not make the decree a decree passed on the ground of default in payment of arrears of rent. By accepting rent before the hearing of the suit, the landlord waived the default and it was no longer open to him to say that he asked for a decree for possession on the ground of default in payment of arrears of rent.
8. The landlord under the common law has the right to eject the tenant after giving him notice to quit. In this case the landlord had duly given that notice to quit and the tenancy was determined. But by the Rent Act it was provided that no order or decree for possession should be made against a tenant who had not made default in payment of rent. That was the state of law before the Act of 1948 came into force. When the Act of 1948 came into force it conferred further benefits on the tenant by saying that even (if the tenant was in arrears at the date of the commencement of the Act, he would be protected if within a month from the date the Act came into force, the tenant paid all arrears together with interest and costs as provided in section 12(1) (b). In other words, a tenant was given protection from eviction on certain conditions and those conditions were: (1) payment of all arrears, (2) payment of interest, and (3) payment of costs such as the Court might award. Therefore, if the tenant pays only the arrears of rent and not interest and costs, and the decree is passed, it is not passed against the tenant any reason of the fact that he made default In payment of arrears of rent, but on the ground that the tenant is not entitled to the benefit of the Act because he has not fulfilled the conditions of the Act on the performance of which the benefit is given to the tenant. If the conditions are not performed by the tenant, the landlord becomes entitled to press his common law right of ejectment and the claim becomes irresistible. In this case the tenant did not pay the interest and costs and so the decree was made. On these grounds I am unable to hold that the decree was passed on the ground of default in payment of arrears of rent.
9. With regard to the second contention of Counsel for the appellant it will appear from secs. 5 and 6 which I have already set out that if at the date of the commencement of the Act, namely, the Amending Act of 1950, there were applications pending for relief under sec. 18(1) of the Act of 1950, the provisions of the Amend ed Act will apply. By amendment, in sec. 18(1) of the Act of 1950, for the words: “on the ground of default in payment of arrears of rent under the provisions”, the following words have been substituted, namely: “on the ground that the interest of the tenant in such premises has been ‘ipso facto’ determined under the provisions of sub-section (3) of section 12”. Like wise, in sub-sec. (5), for the words, “on the ground of default in payment of arrears of rent under the provisions”, the following words have been substituted, namely: “on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of sub-section (3) of section 12”. In other words, by the amending Act the only persons who are given relief under sec. 18 are tenants whose tenancies have been determined by reason of their failure to pay three consecutive months' rent, that is to say, whose tenancies have ipso facto been determined under the provisions of sec. 12(3) of the Act of 1948. The amendments have been given retrospective operation. If therefore the amended sections are deemed to have been in operation at the date when Bachawat, J., made his order, it is quite clear that the applicant, the tenant, could not make this application because he was not a tenant whose tenancy had been determined by failure to pay rent for three consecutive months.
10. Mr. T.P Das, counsel on behalf of the tenant, has argued that these sections of the amended Act have no application to the present case, because the application. which the tenant made cannot be said to have been pending at the commencement of the amending Act. The amending Act came into force on November 30, 1950 and Bachawat, J.'s order was made previous thereto, namely, on May 24, 1950. Therefore, said Mr. T.P Das, that this application was not pending at the date when the amending Act came into force, having been disposed of by Bachawat, J., long before that date. But the appeal was preferred from Bachawat, J.'s order on September 1, 1950 and once the appeal was preferred from the order that order lost its finality. A decision liable to appeal may be ‘final’ until the appeal is preferred. But once the appeal is filed the decision loses its character of ‘finality’ and what was once res judicata again becomes res sub judice, that is, a matter under judicial inquiry. The appeal destroys the finality of the decision, the decree of the lower Court is superseded by the decree of the Appellate Court In other words, once an appeal is filed from a decree or order in a matter, it becomes a pending matter. In this case when the appeal was preferred against the order of Bachawat, J., the application became a pending application. So we are unable to accept the contention of Mr. Das that by reason of the order of Bachawat, J., the application ceased to be pending. Once it is held that the application was pending at the date of the commencement of the amending Act, the sections of the amended Act apply. In other words, the only person who can now make an application under sec. 18(1) of the Act of 1950 is a person whose tenancy was determined by the operation of sec. 12(3) of the Act of 1948. The applicant in this application is not a tenant of that character. Therefore he is not entitled to get any relief under sec. 18(1) of the Act of 1950.
11. On both these grounds, I think the applicant is not entitled to the relief ht has asked for.
12. The appeal is, therefore, allowed with costs, both here and below. Certified for one counsel.
13. By consent the landlord is appointed receiver without security and without remuneration to withdraw the rent which is tin deposit in the Rent Controller's office.
14. When he takes out the money he will give credit to the tenant for the amount withdrawn. Filing of accounts by the receiver is dispensed with.
15. Solicitors: S.N Sen for the Appellant; M.G Poddar for the Respondent.
Harries, C.J:— I agree.
A.K.D.G