Sm. Parbati Debi v. Dr. S.N Sen

The Judgment of the Court was as follows:

Gentle, J.:— The Plaintiff, who is the Respondent in the present application, is the owner of premises No. 66, Cornwallis St., Calcutta. The Defendant was the Plaintiff's tenant and is still in occupation of the premises. The rent reserved was Rs. 200 monthly. On the 11th January, 1945, the Plaintiff commenced a suit for ejectment against the Defendant after termination of notice to quit which had been given previously on the 17th November. In the plaint it is alleged that the Defendant was in default with regard to monthly rent in respect of the months of October, November and December, 1944. In the written statement this default is denied by the Defendant.

2. On the 28th August, 1945, the parties settled the disputes arising out of the suit and a decree was passed by consent in terms of the agreement. The terms of settlement provided that there would be a decree for vacant possession together with mesne profits at the rate of Rs. 200 a month from the 1st January, 1945. The Defendant undertook to vacate the premises and make over vacant possession, on or before 31st January, 1946, and to pay each month mesne profits at the rate specified above and there are other provisions regarding withdrawal by or payment to the Plaintiff of monies in respect of rent for the months of October, November and December, 1944 and other monies.

3. In his petition the Defendant states that during the progress of the suit it appeared from some documents that the rent in respect of the month of April, 1944, was not paid at the due time, and in consequence the Defendant was not entitled to the benefit of the Calcutta House Rent Control Order, 1943, as he had not complied with the conditions of his tenancy and had to consent to a decree being passed against him in accordance with the terms of settlement. This is an application which is made pursuant to the recent amendment of the Calcutta House Rent Control Order. It is convenient to refer to the relevant provisions of the Order together with its amendment. Paragraph 9 (I) provides that no order or decree for recovery of possession of any house shall be made so long as the tenant pays rent, to the full extent allowable by the Order and performs the conditions of the tenancy; the paragraph proceeds to provide that it shall not be applicable in three other instances, which are specified and to which it is not necessary to refer. The amendment was made by notification dated 28th August, 1945, published in the Calcutta Gazette on the 29th August, the next day, and it provides that there shall be parar graph 9 (B) (3) to the Order which is to the following effect:— “Where any decree or order for the recovery of possession of any house has been made on or before the 29th August, 1945, on the ground that the tenant in possession of the said house is not entitled to the benefit of paragraph 9 by reason of his non-compliance with the provisions of this Order as to payment or deposit of rent due by him in respect of such house, but possession of such house has not been recovered from the tenant, …(b) the Court by which the decree or order was made shall set aside the decree or order” upon terms which are set out and which it is unnecessary to quote.

4. The Defendant's contention is that the consent decree which was passed pursuant to the terms of settlement of the 29th August, the same date as the notification was published in the Calcutta Gazette, comes within the amendment, in that it was a decree for possession passed on the ground that the tenant in possession of the house was not entitled to the benefit of paragraph 9 of the Order.

5. My attention has been drawn during the argument to the provisions of the English Increase of Mortgage Interest and Rent (Restrictions) Act, 1920, Sec. 5. That section, so fat-as it enacts that the Court shall not make an order for possession, substantially corresponds with paragraph 9 of the Calcutta House Rent Control Order and my attention has been drawn to some English decisions, the effect of which is that even when there is an order made by consent, nevertheless the provisions of the section apply. Sub-sec. (2) of Sec. 5 of the English Act contains a provision which is not included in the Calcutta Order. It is as follows: “At the time of the application for or the making or giving of any order or judgment for the re covery of possession of any dwelling-house or in the case of any such order or judgment which has been made or given, whether before or after the passing of this Act, and not executed at any subsequent date, the Court may suspend execution of any such order or judgment or postpone the date of possession for such period or periods as it thinks fit.”

6. With respect to that sub-section it was held in Rossiter v. Langley(1) where an order for possession was made by consent, that nevertheless the tenant was entitled to apply to the Court for suspension of execution or for postponement of the date upon which possession should be, given. In Barton v. Fincham(2) the landlord desired to sell a house which he had rented to a tenant and he arranged that the tenant should pay a certain sum of money in return for which the tenant was to give notice to quit, and he did so, but at the termination of the notice to quit the tenant did not vacate, and the landlord claimed possession. There is a further provision in the English Act that when a tenant has given notice to quit and in consequence of such notice the landlord has contracted to sell or let the dwelling-house or has taken any step as the result of which, in the opinion of the Court, he would be seriously prejudiced if he could not obtain possession, the Court can order possession. It is to be noticed that in that case there was no selling or letting of the premises by the landlord in consequence of the notice to quit which the tenant gave and it was merely a notice to quit given by reason of an arrangement or agreement with the landlord; although the tenant did not vacate, it was held that he was not obliged to do so, but the other provisions of Sec. 5, to which I have referred previously, applied to him and the landlord was not entitled to an order for possession.

7. The substance of the two decisions is that the English Act contains a prohibition upon the Court from making an order for possession except upon specified conditions and that, whenever an order is made, whether by consent or after adjudication, the tenant always can apply to the Court for postponement of execution or date of delivery of possession.

8. In my view the decisions which have been cited to me and which I have quoted are decisions upon the wording of the provisions of the English Statute and I cannot see that they assist in the present proceeding. It is not a bad thing to examine legislation and to read it in order to ascertain what it says and what it means. This is what the amendment to the Calcutta House Rent Control Order does provide: when a decree or order for recovery of possession of a house has been made before the specified date on the ground that the tenant in possession of the house is not entitled to the benefit of paragraph 9 by reason of his non-compliance with regard to payment or deposit of rent, the tenant or judgment-debtor can come to Court with an application to set aside the decree. What are the facts in the present case? The decree was passed by consent. It was not a decree of this Court, to my mind, which was passed on the ground that the tenant was in default. The decree was passed because there was an agreement between the parties that it should be passed upon the terms set out in the settlement. If one examines the terms, there was the usual giving and taking by both parties. I find nothing in any term which bears out the statement in the petition that the agreement was made because it was discovered that the Defendant was in default in respect of the rent for April, 1944. That was not alleged in the plaint; the default period was said to be October to December, 1944, which the Respondent denies in the written statement. Looking at the provisions of the amendment, in my view, the present application does not come within their purview. It seems to me that the provisions relate to a decree passed by a Court after adjudication upon the ground specified in the Order. There is no reference in the amendment to a decree by consent or to anything other than that which it states, namely, a decree passed on the ground that the tenant had not complied with the provisions of his tenancy regarding payment or deposit of rent. There is no provision corresponding to see. 5 (2) of the English Act.

9. In those circumstances this application must fail and be dismissed with costs.

Solicitors: S.K Sen Gupta for the Applicant; Messrs, A.K Rudra & Co. for the Respondent.