Charu Bala Das v. Madhu Sudan Kundu And Ors.

1. This second appeal arises out of a suit for ejectment. The suit was decreed by the trial Court, but, on appeal, it has virtually been dismissed as the deposit which the learned Subordinate Judge directed the contesting defendant tenant to make to avoid ejectment has already been made. Against this appellate decision, the plaintiff has preferred this second appeal.

2. The suit property comprises premises No. 38/1-G, Manicktola Main Road. The contesting defendant No. 1 was a tenant therein from the time of the previous owner Sahajadi Begum, from whom the plaintiff purchased the premises on March 15, 1951. In July, 1951, the plaintiff gave the tenant defendant a notice to quit requiring him to vacate the suit premises on the expiry of August, 1951, and upon the tenant's failure to quit, the present suit was instituted on November 6, 1951. The tenant was made defendant No. 1 and certain alleged subtenants were made defendants Nos. 2 to 4.

3. Ejectment was claimed, inter alia, on the ground of reasonable requirement of the suit premises for the plaintiff's own use and occupation and also on the ground of default in the payment of rent. This latter ground was added by amendment of the plaint, but there can be no question that the amendment was rightly allowed. The contesting defendant duly filed his additional written statement.

4. The main defence was a denial of the plaintiff's plea of reasonable requirement and also of his allegation of default. There was also a further plea that the defendant had spent about Rs. 5,000 on repairs for which he would be entitled to get credit as against rent, and that being the position, the allegation of default would be entirely unfounded. The other defences have not been pressed in this Court and they are not material for purposes of this appeal. The learned Munsif overruled all the defences. He found first that the tenant defendant was a defaulter from March 15, 1951, to September, 1951, by reason whereof he was debarred from claiming any relief against ejectment under section 14 of the Rent Control Act of 1950, in view of the proviso to sub-section (3) thereof. He found further that the plaintiff had made out a case of reasonable requirement for her own use and occupation within the meaning of section 12(1)(h) of the Act. He, accordingly, decreed ejectment, giving the defendant one month's time to vacate the disputed premises.

5. The learned Subordinate Judge took a contrary view. He held against the plaintiff on the question of reasonable requirement of the suit premises for her own use and occupation. He held also that the tenant defendant was not a defaulter for the requisite three occasions of two months each, so as to be hit by the proviso to section 14.(3) of the Rent Control Act of 1950. He, accordingly, set aside the decree for ejectment Upon the tennat's depositing in Court Rs. 111-15-9 pies, found due under section 14(1) of the Act, within 15 days. That deposit was duly made and accordingly, the learned Munsif's decree for ejectment stood completely reversed.

6. Incidentally at this stage, it may be noted that, by directing the tenant defendant to make the above deposit, the learned Subordinate Judge appears to have accepted the learned Munsif's finding, made in the proceedings under section 14(4) of the Rent Control Act of 1950, rejecting the tenant's plea that he had effected repairs of the disputed premises at his own costs.

7. In arguing the appeal, Mr. Gupta raised two short contentions.

8. In the first place, he urged that the learned Subordinate Judge's judgment on the question of the plaintiff's reasonable requirement of the premises for her own use and occupation rejecting her said plea, was not a proper judgment of reversal. He argued that there had been no proper consideration of this aspect of the matter by the learned Subordinate Judge and on this point, he prayed for remand. There is substance in this contention and I accept it.

9. Mr. Gupta urged next that the learned Subordinate Judge's finding on the question of default was entirely erroneous and his order under section 1.4 (1) was wholly unjustified. Mr. Gupta assumed, for purposes of this case, that the learned Subordinate Judge was right in holding that the September default which was admittedly after the expiry of the notice to quit would not be relevant, but, even then, Mr. Gupta contended that there would be six consecutive months' default, namely, from March to August, 1951, which would be sufficient to attract the mischief of the relevant statutory proviso. I am inclined to accept this argument.

10. Admittedly, the rents due from March 15, 1951, to August 31, 1951, were not paid or deposited in time. The learned Subordinate Judge held that that would constitute default for 5½ months. I do not think that this view is correct. The tenancy in question was a tenancy from month to month according to the English calendar and non-payment of rent of any part of March in time, in this case of the latter half, would make the March rent in default or in arrear as much, as non-payment of the entire rent for that month. Clearly, therefore, the tenant was a defaulter from March to August, 1951, which was sufficient for purposes of the relevant statutory proviso.

11. The same conclusion also follows from another consideration in the present case. The plaint was no doubt not very happily worded on the question of the March default and the relevant allegation, as incorporated therein by the amendment, was to the effect that the tenant defendant had defaulted in the payment of rent from March 15, 1951, to October 31, 1951, but, in the relevant petition of amendment, there was a clear allegation of default from March, 1951 to October, 1951, and the defendant also filed his additional written statement on that footing and in this light, denying default from March, 1951, to October, 1951. Front the defendant's own evidence in the suit, — I am not referring here to his evidence in the section 14(4) proceedings which is clearer but which may not by itself be strictly evidence in the suit, — it is sufficiently clear that there was no timely payment of rent for the entire month of March, 1951. It may be that the rent for the first half of March, 1951 was really payable to the plaintiff's transferor Sahajadi Begum, who was the previous landlord, but that, as held by me in the recent case of Manmatha Nath Joardar v. Sasanka Mohan Guha (1) (96 C.L.J 53), would not make any difference and that default also would be available to the transferee landlord, namely, the present plaintiff. This, indeed, was not disputed by Mr. Mukherjee. In this view, the defendant's default would obviously be from March, 1951 to August, 1951 and he would be clearly hit by proviso to section 14(3) of the Rent Control Act of 1950.

12. In the above context, it is unnecessary for me to examine in this case the two different opinions, expressed by the two learned Judges in the courts below as to the latest date upto which the period of eighteen months as mentioned in the proviso to section 14(3) of the Rent Control Act of 1950, would extend. The learned Munsif held that defaults upto the date of institution of the suit would be relevant for purposes of the proviso. The learned Subordinate Judge was not inclined to take the relevant period beyond the expiry of the notice to quit or the determination of the contractual tenancy. The point is not altogether free from difficulty and as it does not arise in the present case in view of what I have already said above, I refrain from expressing any final opinion on this point beyond pointing out that the Bench decision in the case of Amal Krishna Basu v. Chandi Charan Banerjee, (2) 56 C.W.N 528, does not really decide this question. That decision merely lays down that, in no view, would post-suit defaults be relevant for purposes of the statutory proviso to section 14(3) of the Rent Control Act of 1950, while rejecting a contention that the relevant defaults must be calculated upto the actual date of the order under section 14(1) of the Act. Nothing more should be read into that decision and nothing else should be attempted to be deduced therefrom. As, however, on the other reasons, given by me above, the present case would fall within the mischief of the said proviso, Mr. Gupta's contention on this part of the case should be accepted subject to what I shall presently say in regard to the defendant's repair cost claim. The decision of the learned Subordinate Judge on section 14(3) proviso is, accordingly, reversed and his order of deposit under section 14(1) is set aside.

13. The above, however, must be subject to consideration of the defendant's claim on the question of repair costs. As I have already said, the learned Subordinate Judge and indeed, the learned Munsif also at the time of final hearing of the suit, did not pay any serious attention to or really decide this part of the defence case which though not very elaborately taken in the written defence was specifically urged in the section 14(4) proceeding where it was negatived by the learned Munsif and appears also to have been referred to at least before the learned Subordinate Judge.

14. In the circumstances of this case, I am inclined to allow fresh consideration of this question also by the lower appellate Court to which the case, as already, indicated, will have to go back on a limited remand, and the parties will be entitled to adduce fresh or further evidence before that Court on this question of repair costs only.

15. In the above view of the matter, I allow this appeal, set aside the judgment and decree of the learned Subordinate Judge and send the case back to him for re-hearing according to law on the points indicated above, namely, the questions of reasonable requirement and repair costs, and for final disposal in the light of this judgment.

16. The costs of this appeal will abide the final result.

A.K.D-G.