Broja Behari Sen v. Ved Prokash Kumar .

1. This is a suit for the recovery of Rs. 8,436-14-0 on account of arrears of rent for the period from February 1950 to June 1956. Since April 1947 the defendant is the tenant of a portion of No. 26B, Asutosh Mookerjee Road. The agreed rent is Rs. 200/- per month. On 20-12-1949 the defendant applied before the Rent Controller in Calcutta for fixation of standard rent. On 23-3-1950 the Rent Controller fixed the standard rent at Rs. 96-4-0 per month with effect from 1-12-1949. An appeal was filed from this order. On 31-3-1950 the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 came into force. By Section 17 of the Act further proceedings in the rent fixation matter was continued under the new Act. On 13-3-1951 the subordinate Judge, Alipore, dismissed the appeal. Later on in Civil Revision case No. 1303 of 1951 this appeal was remanded for rehearing by the District Judge on the ground that the Subordinate Judge was not competent to hear the appeal. On 3-3-1953 the District Judge set aside the order dated 23-3-1950 and sent the case back on remand to the Rent Controller for determination of the standard rent. On 18-9-1953 the Rent Controller dismissed the application on the ground that the tenant had failed to discharge the onus. The tenant as also the landlord filed two separate appeals from this order. On 30-3-1954 the District Judge sitting in appeal fixed the standard rent at Rs. 233/- per month with effect from 1-1-1950. On 21-3-1956 this Court sitting in revision modified the order dated 30-3-1954 and fixed the standard rent under S. 9(1)(e) of the Act at Rs. 199-10 per month with effect from 1-1-1950. On 3-7-1956 the plaintiff instituted this suit claiming arrears of rent from February 1950 up to June 1956 at the rate of Rs. 199-10-0 per month after giving credit for the deposits made by the defendant during this period at the rate of its 96-4-0 per month. There is also a claim for interest but that claim has been abandoned.

2. Pursuant to an interim order made in this suit certain payments were made by the defendant to the plaintiff's attorney. The only substantial question is the question of limitation. No evidence as to the actual amount due was taken. Learned counsel on both sides stated that the amount if any depended upon the Question of limitation and that the parties would be able to agree as to the amount if any due to the plaintiff on the basis of the judgment of this Court on the question of limitation. The following issues were raised:

1. Is the suit or any part thereof barred by limitation?

2. To what relief, if any?

3. Briefly stated the contention of the plaintiff is:

(1) That the rent under the contract is not ascertained and determined until fixation of the standard rent and therefore the cause of action under the contract to recover the rent arises only on such fixation.

(2) Section 10 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 imposes upon the tenant a statutory obligation to pay the standard rent fixed by the Rent Controller and the cause of action to enforce this statutory obligation arises on the date of the fixation.

4. In my opinion the first contention is unsound and ought to be rejected. It is common case that the arrears of rent from July 1953 onwards are not barred by limitation. The only question is whether the arrears of rent due for the period from February 1950 up to and including June 1953 are barred by limitation. The rent for this period may be classified into two groups:

(1) February/March 1950: and

(2) April 1950 to June 1953.

5. I will firstly deal with the arrears of rent for the period April 1950 to June 1953. During this period the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 was in I operation. The tenant was under a contractual obligation to pay the agreed rent at the end of every month. This contractual obligation was modified by the Act. By Ss. 3 and 17(1) of the Act the portion of the agreed ??? which exceeds the standard rent is irrecoverable from the month of tenancy next after the 31-3-1950, that is to say, in this case from April 1950. The contractual rent continues to fall due at the end of every month though a portion of it may not he legally recoverable. In contemplation of law the standard rent and the portion of the contractual rent which is not legally recoverable have notional existence as from 30-3-1950 before the standard rent is actually determined by the Rent Controller. See S. 2(10) the Act. P.C Mallik v. Bhabatosh Das, 59 CWN 491 (A); and The Corporation of Calcutta v. Sm. Pamda Debi. 61 CWN 129 at p. 151 : ((S) AIR 1957 Cal 466 at P- 471) (B).

6. In view of the order dated 23-3-1950 rent in excess of Rs. 96-4-0 could not be recovered during the period 23-3-1950 and 3-3-1953. That order was set aside on 3-3-1953 and the standard rent was finally fixed at Rs. 199-10-0 on 21-3-1956. The standard rent must now be deemed to have been Rs. 199-10 per month throughout as from 1-1-1950 though it was finally determined and fixed at a much later date. The contractual rent was Rs. 200/- per month and fell due from month to month. But in view of Ss. 3 and 17(1) of the Act read with S. 2(10) of the Act a portion of the contractual rent, namely, 6 annas per month was not recoverable. Rent for the period April 1950 up to June 1953 became due and payable under the contract more than three years before the institution of the suit. The suit so far as it seems to enforce the contractor obligation to pay the rent for the above period is barred by limitation in view of Article 110 of the Limitation Act.

7. With regard to the arrears of rent for February and March 1950, it should be remembered that during this period, the West Bengal Premises Rent Control (Temporary Provisions) 1948 Act was in force. The relevant Sections of that Act appear to Ire Ss. 2(10) and 3. Ss. 12 & 14 of that Act may also be looked at. The argument before me proceeded upon the assumption that there is no substantial difference between the rent for the two periods. My conclusion is that the contractual rent during this period also fell due at the end of every month. In view of the order dated 21-3-1956 only the sum of Rs. 199/10/- per month is recoverable. The suit so far as the plaintiff seeks to enforce the contractual obligation to payment for this period also is barred by limitation.

8. In my opinion, however, the second contention of the plaintiff sought to succeed. In my opinion. Section 10 of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 imposes a statutory obligation on the tenant to pay standard rent as from the date specified in the order fixing the standard rent and the cause of Action to enforce this statutory obligation arose on the making of the order. Mv reasons for this conclusion may be briefly stated as follows:

(1) This conclusion flows from a literal construction of S. 10. The relevant portion of S. 10 is as follows:

“10(1) When in fixing the standard rent under S. 9 the rent which was being paid at the time of the application is—

(1) decreased by the Controller, the standard rent fixed shall be payable from the month next after the date of application, unless for reasons to be recorded by the Controller he decides that such rent should operate from any earlier or later date.

(2) Where the standard rent is fixed,—

(a) under Cl. (e) of the said sub-section it shall be payable from the month next after the date of the application.

(3) In fixing the standard rent the Controller shall, in every instance, specify in his order the time from which the rent so fixed shall become payable.”

9. By Ss. 10(1) and 10(2) standard rent fixed under S. 9 shall be payable from a specified date. By S. 10(3) the order fixing the standard rent has to specify the time from which the standard rent shall become payable. The Act imposes a present obligation upon the tenant to Pay standard rent fixed under S. 9 as from a specified anterior date. The obligation springs Into existence when the standard rent is so fixed.

10. (2) Where standard rent fixed by order under S. 9 is in excess of the contractual rent, beyond dispute, a new cause of action for the recovery of the excess arises on the making of the order. In view of Section 11 of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950, the landlord becomes entitled to recover the excess only on fixation of the standard rent by an order under S. 9. S. 10 therefore creates a statutory obligation to pay standard rent. The statutory obligation extends to the whole of the standard rent and is not in terms limited to the excess only.

11. (3) Even where the standard rent fixed under S. 9 is less than the contractual rent. S. 10 on its true construction takes effect by way of creating a statutory obligation to pay standard rent and not by way of cutting down the contractual rent. Contractual rent is cut down by Sections 3 and 17(1) whereas Section 10 creates a statutory obligation to pay standard rent. Under Ss. 3 and 17(1) contractual rent is cut down as from April 1950 whereas by S. 10 standard rent is payable as from the date specified in the order fixing the standard rent. The fact that the two dates may or may not coincide, emphasises the conclusion that the two sets of Sections have different functions.

12. These are the reasons for my conclusion. I will note one more argument though I do not adopt it as part of the reasons for my conclusion. The landlord may be often compelled to refrain from either demanding of money for the contractual rent until the standard rent is fixed under S. 9. He may not know until then if any rent legally recoverable by him is in arrears and whether he will be justified at all in Instituting; a suit for recovery of rent. He may be punishable with fine under S. 33(1)(a) if he demands and receives the contractual rent knowing that it is in excess of the hypothetical standard rent. As a suit to enforce the contractual obligation may be barred by limitation during the pendency of the rent fixation proceedings the Court should lean in favour of the construction that S. 10 imposes a new obligation and gives a fresh starting point of limitation.

13. The statutory obligation to pay the arrears of standard rent in this case came into existence on 21-3-1956 when the standard rent was finally fixed and the cause of action to enforce this statutory obligation arose on that date. Whether Article 110 or Article 120 applies to this claim, the suit in so far as it seeks to enforce this statutory obligation is not barred by limitation.

14. To prevent any possible misconception Section may point out that the provisions of the West Bengal Premises Tenancy Act 1956 do not apply to this case. Similar questions arising under that Act wall have to be decided on a constructions of the provisions of that Act and in particular of Ss. 4 and 12 thereof.

15. I, therefore, adjudge and declare that the rent for the entirety of the period February 1950 up to and including June 1953 is not barred by the law of limitation.

16. Without prejudice to the defendant's right to appeal from this judgment, the parties are agreed that on the basis of this judgment a sum of Rs. 4,623/6/- is payable to the plaintiff from the defendant.

17. In the event of there being an appeal and in the event of this judgment being set aside or modified on appeal, the parties are agreed that the amount of rent due to the plaintiff on the basis of any further appellate judgment will be adjusted by agreement and failing such agreement, there will be a Reference to enquire as to the amount of rent due to the plaintiff on the basis of the appellate judgment, if any.

18. I pass the following decree.

19. There will be a decree in favour of the plaintiff for the sum of Rs. 4,623/6/-, interim interest at the rate of 6 per cent, per annum, interest on the decretal sum of Rs. 4,623/6/- at the rate of 6 per cent, per annum and costs.

20. A sum of Rs. 1,278/8/- deposited on behalf of the defendant is lying with the plaintiff's Attorney.

21. The plaintiff's Attorney is directed to pay the aforesaid sum to the plaintiff and the plaintiff is directed to appropriate the sum in pro tanto satisfaction of the plaintiff's dues.

V.B.B

22. Suit decreed.