Mukherjea, J.:— The facts giving rise to these analogous cases may be shortly stated as follows. The Reliance Jute Mills, Ltd., which is the Petitioner in both these Rules, brought two suits in the Court of the Second Munsif, Barasat, being Title Suits Nos. 31 and 32 of 1939, for recovery of khas possession of certain lands on the allegation that the Defendants who are in occupation of the same were thika tenants whose tenancies had been determined on proper service of demand notices. There were claims also for arrears of rent and mesne profits in both these suits. The suits were decreed by the trial Court and the Plaintiffs were declared entitled to recovery of possession of the lands by evicting the Defendants and also to recover rents and mesne profits as claimed by them.
2. There were two appeals taken against these two decrees by the tenants Defendants but the appeals were dismissed by the lower Appellate Court on the 26th April, 1940. The Plaintiff decree-holder then put these decrees into execution and the Defendants thereupon filed applications before the executing Court, praying that the proceeding for delivery of the lands of the two suits might be stayed under sec. 3 of the Bengal Non-Agricultural (Temporary Provisions) Act, 1940. The Court granted this prayer and the order recorded in the two execution cases reads as follows:—
“The application be allowed in part and the execution case in so far as regards delivery of possession of the disputed land, shall foe stayed according to the provisions of the Non-agricultural Tenancy Act and it shall proceed in respect of the decree for the arrears of rent and cost.”
3. Thereafter the Plaintiff decree-holder presented certain applications for review of this order under Or. 47, r. 1 of the Code of Civil Procedure and also put in fresh applications for obtaining delivery of possession of the properties. All these applications were dismissed by the learned Munsif and it is against these two sets of orders passed in these two cases that the present Rules have been obtained. The substantial point which was raised by the Plaintiff decree-holder in support of their applications for review and which has been re-iterated before us by Mr. Bose is that the Court below, in making the orders for stay of the proceedings for delivery of possession, overlooked the provision of sec. 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. The argument is that as in the present case the tenants were in arrears as regards payment of rents due by them, there could be no stay of any suit or proceeding under sec. 3 of the Bengal Non-Agricultural Tenancy Act. The proceeding for delivery of possession could be stayed only if the entire decretal amount was deposited in Court as prescribed by the proviso to sec. 3 of the Act within 30 days from the date of the decree. There are two other points which have been put forward by Mr. Bose in support of this Rule. The first is that sec. 3 of the Bengal Non-Agricultural Tenancy Act is ultra vires of the Provincial Legislature and the second is that the Defendant in both these two suits does not come within the definition of a non-agricultural tenant as defined in sec. 2 of the Act. We shall take up these points one after another.
4. To appreciate the first point that has been raised by Mr. Bose, it is necessary to examine carefully the provision of sec. 3 of the Bengal Non-Agricultural Tenancy Act. That section reads as follows:
“Notwithstanding anything contained in any other law for the time being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant, other than a suit or proceeding for ejectment on account of the nonpayment of rent by such tenant, shall (be stayed for the period during which this Act continues in force.”
5. There is a proviso attached to it which says that a proceeding for delivery of possession in execution of a decree for ejectment on account of nonpayment of rent by such tenant shall be stayed if, within thirty days from the date of the decree, such tenant deposits into Court the amount of the decree together with the costs of the proceeding.
6. Thus in order to attract the operation of the section, what is necessary is that the suit or proceeding must be one for ejectment of a non-agricultural tenant and the ejectment must be sought for on a ground other than non-payment of rent. The words “on account of non-payment of rent” are somewhat unhappy and it has been pointed out by our learned brother Mr. Justice Mitter in Kumar Purnendu Nath Tagore v. Narendra Nath Samanta(1) that mere non-payment of rent could not be a ground for ejectment of a tenant under the substantive law of this country. Our learned brother was constrained to interpret these words as referring to a suit for ejectment of a tenant whose rents were in arrears although the right to sue was based on grounds other than non-payment of rent. This decision was followed by Mr. Justice Henderson in Nut Behari Das v. Mohamad, Ali(2). With great respect to the learned Judges we are bound to say that the interpretation adopted by them is somewhat farfetched and unnatural. A suit for ejectment of a tenant for non-payment of rent means and implies that the tenant is sought to be ejected on the ground that he has defaulted to pay rent due by him. It is true that mere non-payment of rent is not a ground upon which eviction could be claimed by the landlord but at the same time there may be a condition in the lease under which the lessee would forfeit his tenancy if there is default in the payment of rent for a certain period. Under sec. 111, cl. (g) of the Transfer of Property Act, a forfeiture may arise in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; and non-payment of rent may be a condition on the breach of which a forfeiture would be incurred. It is to this class of cases that the words “a suit for ejectment for non-payment of rent” as used in section 3 of the Act are, in our opinion, referrible. Sec. 114 of the Transfer of Property Act gives the Court power to grant relief in such cases and instead of making a decree for ejectment the Court can make an order relieving the lessee against the forfeiture, provided he pays or tenders to the lessor the rent in arrears together with interest and costs. It may be that it was on account of the provision of Sec. 114 of the Transfer of Property Act that the legislature exempted such cases from the operation of the provision of sec. (3) of the Non-Agricultural Tenancy Act. Even when no decree has been made in conformity with the provision of sec. 114, Transfer of Property Act, and a decree for ejectment has been passed, the proviso to sec. 3 of the Bengal Non-Agricultural Tenancy Act gives a relief to the judgment-debtor, and there will be a stay of the proceeding for delivery of possession, provided the tenant deposits in Court the amount of the decree together with the costs of the proceeding within thirty days from the date of the decree. It may be argued that the view which we are taking may lead to this undesirable result that a suit which has been brought by the landlord for ejectment as well as for recovery of rent may be stayed in its entirety under the provision of sec. 3 of the Bengal Non-Agricultural Tenancy Act and the landlord may have to forego the rent for a certain period of time. We do not think, however, that this was the intention of the Legislature. What the Legislature intended is that only a suit or proceeding for the ejectment of a tenant shall fee stayed and there is nothing in sec. 3 which prevents the Court from proceeding with the suit so far as it relates to recovery of rent. We believe that a perfectly correct order has been made by the Court in the present case by staying the proceeding for the delivery of possession only and allowing the decree-holder to proceed with the execution of the decree so far as it relates to recovery of arrears of rents and costs. The first point must, therefore, fail.
7. So far as the second point is concerned, it seems to us that it is concluded by the decision of a Special Bench of this Court in Sukumari Devi v. Rajdhari Pandey(3). It was held there by three Judges of this Court that sec. 3 of the Bengal Non-Agricultural Tenancy Act is a valid piece of legislation which is covered by item No. 2 read with item No. 21 of the Provincial List and is not repugnant to any existing Indian Law which makes it void under sec. 107 of the Government of India Act.
8. The third point raised by Mr. Bose does not appear to us to have any substance. It is true that the Defendants in both the suits were originally subtenants but the case of the landlord Plaintiffs as made in the plaint was that the tenant holding the land immediately under them had surrendered the tenancy and the sub-tenants had become tenants directly under them. It was on this footing that the suits for ejectment were brought, and rents were claimed against them up to the date of the expiry of the period of the notice. Under the circumstances we are unable to say that the Defendants were sued as trespassers and not as tenants.
9. The result, therefore, is that the Rules fail and are discharged without costs.
10. Certificate for leave to appeal to the Federal Court under sec. 205 (1) of the Government of India Act, 1935, is granted in each case.
Sen, J.:— I am also of opinion that the Rules should be discharged. I desire to say a few words regarding the reasons why I am unable to accept the interpretation put upon sec. 3 of the Non-Agricultural Tenancy (Temporary Provisions) Act by my learned brother Mitter, J., in the case of Kumar Purn-endu Nath Tagore v. Narendra Nath Samanta.
11. Sec. 3 is in the following terms:—
“Notwithstanding anything contained in any other law for the time being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant, other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force:
Provided that every proceeding for delivery of possession in execution of a decree for ejectment on account of the non-payment of rent by such tenant shall be stayed if, within thirty days from the date of the decree, such tenant deposits into Court the amount of the decree together with the costs of the proceeding.”
12. What Mitter, J., has said is that a suit for ejectment of a tenant who is in arrears regarding his rent is a suit for ejectment on account of non-payment of rent, although ejectment is claimed on a ground other than that of non-payment of rent.
13. In explanation of this interpretation Mitter, J., remarks that under the law a non-agricultural tenant cannot be ejected for non-payment of rent and that therefore the phrase “ejectment on account of non-payment of rent” appearing in sec. 3 is meaningless, if words are given their ordinary meaning. In order to give the clause some meaning he is constrained to interpret it as stated above. There can be no doubt that if the words of the above-mentioned phrase in the section be given their ordinary meaning, the interpretation of my learned brother cannot be supported. This forced and, if I may say so with great respect, unnatural interpretation is based on the view that a non-agricultural tenant cannot be ejected on account of non-payment of rent. With great respect I am unable to accept this view. It is true that nonpayment of rent is not necessarily a ground for ejectment, but a non-agricultural tenant may in certain circumstances be ejected on account of nonpayment of rent. If the lease contains a condition that it will be forfeited for non-payment of rent, then if the tenant defaults he may be ejected for nonpayment of rent (vide sec. 111G of the Transfer of Property Act). I am not unmindful of the provisions of Sec. 114 of the Transfer of Property Act by which a tenant may obtain relief against forfeiture for non-payment of rent if he complies with certain terms mentioned in the section, but the fact remains that he is liable to be ejected for non-payment of rent if he does not comply with these terms. Thus in my opinion there is no necessity for giving a forced meaning to the phrase “ejectment on account of non-payment of rent.” The section can be made effective by giving the words their natural and ordinary meaning. If that is done, then sec. 3 of the Non-Agricultural Tenancy (Temporary Provisions) Act must be construed as providing that a suit or proceeding against a non-agricultural tenant for ejectment on grounds other than for non-payment of rent must be stayed. The fact that rent is also claimed in such a suit would make no difference to the position, the suit or proceeding would have to be stayed.
14. For these reasons I am of opinion that the order of the Court below staying proceedings for delivery of possession of the property is correct.
P.C