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  • Suhrawardy
  • Graham, JJ.
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  • Graham, JJ.
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Smart Summary

Structured Summary of the Opinion (Suhrawardy, J.)

Factual and Procedural Background

The appellant (defendant in the original suit) became tenant of premises at 17/2-A, Kundu Lane, Bhowanipur (suburbs of Calcutta) in 1920 at a monthly rent of Rs. 50. The parties applied to the Rent Controller under the Rent Act of 1920 to fix the standard rent, which was fixed at Rs. 39 per month. On 14 March 1925 the plaintiff served notice on the defendant to vacate the premises by the end of March 1925. The defendant did not vacate. The plaintiff instituted a suit for ejectment on 13 May 1925.

The trial Court (Additional District Judge, 24-Parganas) dismissed the plaintiff's suit on 30 July 1926, holding the defendant protected from ejectment under Section 11 of the Rent Act. The plaintiff appealed; the appeal was heard on 29 July 1927 by the learned Third Additional District Judge, 24-Parganas, who allowed the appeal and decreed ejectment (judgment dated 29 July 1927), directing vacatur within one month and awarding damages at Rs. 39 per month from 1 April 1925 until possession.

Between the trial Court's decree and the appellate hearing, the Rent Act had expired (it was in force until 31 March 1927 in respect of premises with rent under Rs. 250), so that at the time the appellate Court delivered judgment the Rent Act was not in operation. The present opinion arises on a further appeal from the appellate Court's decree and a cross-objection by the respondent (plaintiff) on damages.

Legal Issues Presented

  1. Whether, in light of the Rent Act having expired before the hearing of the appeal, the appellate Court could decree ejectment under the general law (Transfer of Property Act) despite the trial Court's finding of protection under Section 11 of the Rent Act.
  2. Whether the defendant's conduct (non-payment or failure to tender rent to the landlord or to deposit it properly with the Rent Controller) precluded protection under sub-section (5) and sub-clause (4) of Section 11 of the Rent Act.
  3. Whether the notice to quit (served 14 March 1925, terminating at the end of March 1925) was valid and sufficient to determine the tenancy and support a decree for ejectment.
  4. What measure of damages the plaintiff (respondent) is entitled to for wrongful possession after determination of tenancy — the standard rent (Rs. 39 fixed by Rent Controller) or the contract rent (Rs. 50 agreed between the parties)?

Arguments of the Parties

Appellant's (Defendant's) Arguments

  • Before passing a decree for ejectment, the validity and sufficiency of the notice to quit should have been determined; an issue on sufficiency of notice had been raised at trial.
  • The learned Judge (appellate) misplaced the onus of proof by effectively requiring the defendant to disprove the validity of the notice, whereas the plaintiff (landlord) bore the onus of proving valid determination of the tenancy.
  • The defendant relied upon protection under Section 11 of the Rent Act as the basis for resisting ejectment (this was the ground on which the trial Court dismissed the suit).

Respondent's (Plaintiff's) Arguments

  • The respondent's counsel (vakil) supported the appellate Court's decree on a different ground than the appellate Court had originally given: namely, that by the time of the appellate hearing (29 July 1927) the Rent Act had expired and therefore the general law (Transfer of Property Act) applied, allowing ejectment after valid notice.
  • In the cross-objection the respondent contended that damages awarded at Rs. 39 per month (the standard rent fixed under the Rent Act) were insufficient; the respondent claimed the contract rent of Rs. 50 per month should be allowed as damages for wrongful possession from 1 April 1925.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Craies on Statute Law (3rd edn, p. 342) Temporary Acts, unless otherwise provided, cease to have effect after expiry; proceedings taken under them terminate on expiry. Used to support the proposition that the bar to ejectment created by the Rent Act ceased on its expiry (31 March 1927), so subsequent proceedings could be governed by the general law.
Quilter v. Mapleson An appellate Court may grant relief according to the law as it stands at the hearing of the appeal; the Court of Appeal can decide according to the existing state of the law if law changed pending appeal. Relied upon to justify the appellate Court granting ejectment because the law had altered (Rent Act expired) by the time of the appellate hearing.
Kanahayya v. Janardhan Padhi Support for the principle that appellate courts may take notice of events transpiring since institution of the suit and decide on that basis. Listed among cases endorsing the appellate power to consider changed circumstances; used to support applying the general law at the time of appeal.
Muthuswami Ayyar v. Kalyani Animal Same principle as above (appellate notice of subsequent events). Referred to as an instance of the rule allowing appellate relief on altered circumstances.
Ram Ratan v. Bishun Churn Courts of appeal must, in exceptional circumstances, take notice of events since the institution of the suit and afford relief on the basis of changed circumstances. Cited as authority for the appellate Court's taking notice of the Rent Act's expiry and applying the law as it stood at the hearing.
Ramyad Sahu v. Bindeswari Kumar Same appellate principle regarding subsequent events. Grouped with other cases supporting appellate consideration of changed circumstances.
Udit Chobey v. Rashika Prasad Same appellate principle regarding subsequent events. Referred to in support of the appellate Court acting on altered legal circumstances.
Rustomji v. Purshotamdas Same appellate principle regarding subsequent events. Referred to as part of the body of cases supporting appellate relief on changed circumstances.
Dinanath Mahish v. Nabahumar Hazra Same appellate principle regarding subsequent events. Referred to in the list of cases on the point.
Rai Charan Mandal v. Biswa Nath Mandal Consideration and compilation of relevant cases on appellate notice of subsequent events (decisions considered by Mookerjee, J.). Referred to as a comprehensive consideration of the authorities on which the present appellate approach rests.
Reference to Section 106, Transfer of Property Act (statutory provision) Provides the legal standard for sufficiency/form of notice to determine a tenancy-at-will (as applied in the text). The Court observed the notice served appeared to be a good and sufficient notice under Section 106, and that the plaintiff had proved receipt of the notice.

Court's Reasoning and Analysis

(Step‑by‑step account, strictly based on the opinion text.)

  1. The Court recapitulated the material facts: tenancy at Rs. 50, standard rent fixed at Rs. 39 by the Rent Controller, notice to quit served 14 March 1925, suit for ejectment instituted 13 May 1925, trial Court dismissed under Section 11 of the Rent Act.
  2. The appellate Court (29 July 1927) allowed the plaintiff's appeal and decreed ejectment, finding that the defendant had not paid rent regularly nor properly tendered/deposited it so as to avail protection under sub‑section (5) and sub‑clause (4) of Section 11 of the Rent Act. This Court examined those factual findings and stated they could not be supported on the evidence and the trial Court's findings.
  3. However, the respondent's counsel supported the appellate decree on a different and decisive ground: by 29 July 1927 the Rent Act had expired (ceasing to apply to these premises on 31 March 1927), and therefore the general law (Transfer of Property Act) governed the situation. Under general law, a landlord may determine a tenancy by valid notice and seek possession; the temporary protection under the Rent Act had ceased with the Act's expiry.
  4. The Court applied the principles (as explained in Craies and the cases cited) that an appellate Court may take notice of changes in law or circumstances occurring after the trial Court's decision and, where appropriate, grant relief according to the law as it stands at the hearing of the appeal. Quilter v. Mapleson and a line of Indian authorities were cited to support this approach.
  5. On the question of the validity of the notice, the Court reviewed the appellate Judge's finding that notice was served on 14 March 1925 terminating at the end of March, and that the defendant had acknowledged receipt but did not vacate. The appellate Judge found no evidence that the notice was invalid; the Court regarded this as sufficient proof of a valid notice and held that it was unnecessary to remand the matter for further inquiry on sufficiency.
  6. Regarding the contention that the onus of proof was misplaced, the Court reasoned that the plaintiff had discharged any onus by proving receipt of the notice; if the defendant disputed sufficiency he needed to show invalidity. The tenancy was treated as tenancy‑at‑will and the notice appeared to be a proper notice under Section 106 of the Transfer of Property Act.
  7. On damages, the Court noted the appellate Judge had awarded damages at Rs. 39 per month (the standard rent fixed under the Rent Act) from 1 April 1925 until possession. The plaintiff argued for damages at the contract rent of Rs. 50. The Court held that while the plaintiff treated the defendant as a trespasser from 1 April 1925, the Court is to assess damages for wrongful possession; given the Rent Controller had fixed Rs. 39 as fair rent and there was no clear basis to say the assessment was plainly wrong, the Court would not interfere with the appellate Judge's principle of assessment in second appeal.
  8. The Court then modified the decree: ordered that the defendant vacate by 31 March 1928; if he vacated by that date he should pay damages (less amounts deposited with the Rent Controller and any payments made on plaintiff's behalf) at Rs. 39 per month from 1 April 1925 until March 1928. If the defendant failed to vacate by 31 March 1928, he would be liable to pay damages at Rs. 50 per month from 1 April 1927 until delivery of possession. The plaintiff was entitled to the amount deposited to his credit in Rent Act proceedings, and any deposit in excess of the decree could be refunded to the defendant.

Holding and Implications

APPEAL DISMISSED WITH MODIFICATION

Core ruling: The appellate Court's decree for ejectment was upheld on the ground that the Rent Act had expired before the appellate hearing and therefore the general law (Transfer of Property Act) applied; the tenancy was held to have been validly determined by notice and the defendant was liable to be ejected.

Direct consequences and orders as stated in the opinion:

  • The defendant must vacate the premises on or before 31 March 1928.
  • If the defendant vacates by 31 March 1928, he must pay damages to the plaintiff at Rs. 39 per month from 1 April 1925 until March 1928, less amounts deposited by him with the Rent Controller and any sums paid for or on behalf of the plaintiff.
  • If the defendant fails to vacate by 31 March 1928, he will be liable to pay damages at Rs. 50 per month from 1 April 1927 until delivery of possession to the plaintiff.
  • The plaintiff is entitled to the amount credited to him from the defendant's deposit under proceedings under the Rent Act; any amount deposited in excess of what is decreed may be refunded to the defendant.
  • The appeal and the cross-objection are dismissed subject to the modifications above; no separate order as to the costs of the cross-objection was made.

Implications for precedent and broader law: The decision applies established principles (cited authorities) that an appellate Court may consider and apply the law as it exists at the time of the appellate hearing where circumstances or the law have changed since the trial. The opinion does not purport to lay down a new legal principle; it applies existing authority to the facts before the Court.

Note: This summary is confined to and directly reflects the statements, findings and authorities as they appear in the provided opinion of Suhrawardy, J., as reproduced in the source text.

Show full summary ...

    Suresh Chandra Chatterjee v. Kanti Chandra Bhattacharjee .

    Suhrawardy, J.:— This is an appeal from the decree of the Additional District Judge of 24-Parganas in a suit in ejectment. The appellant became the tenant under the plaintiff in respect of premises, 17/2-A, Kundu Lane, Bhowanipur, in the suburbs of Calcutta, at a monthly rent of Rs. 50, in 1920. Subsequently the parties went to the Rent Controller to fix the standard rent of the premises under the Rent Act of 1920 which was then in force. The rent was fixed by the Rent Controller at Rs. 39 a month. On 14th March 1925 the plaintiff gave a notice to the defendant asking him to vacate the premises by the end of March 1925. The defendant not having vacated within the time allowed to him, the present suit was instituted on 13th May 1925 for ejectment against the defendant. The trial Court dismissed the plaintiff's suit on the ground that the defendant was protected from ejectment under the provisions of Section 11 of the Rent Act. This order was pronounced on 30th July 1926. There was an appeal by the plaintiff against the decree of the trial Court. The appeal came on for hearing on 29th July 1927. In the meantime the Rent Act expired and ceased to exist. The Rent Act was originally passed in 1920 in respect of all premises in and about Calcutta and came into operation from 5th May 1920. The Act was originally enacted for three years but by subsequent enactment it was extended up to 31st March 1924. Before it expired another Act was introduced and the Rent Act got a fresh lease-of life till 31st March 1927, but only in respect of premises of which the rent was below Rs. 250 a month so that so far as the premises in question are concerned the Rent Act must be taken to have affected them till it expired on 31st March 1927.

    2. The appeal was heard by the learned Third Additional District Judge, 24-Parganas and allowed.

    3. The learned Judge decreed that the defendant should vacate the premises in suit within one month from the date of judgment which was 29th July 1927 and he was further directed to pay damages at the rate of Rs. 39 a month from 1st April 1925 till possession was delivered. The learned Judge took a different view of the facts-relied upon by the trial Court and he found that the defendant did not pay the rent regularly to the plaintiff or deposit it in the Rent Controller's Court and was therefore not protected from ejectment by virtue of the provision of sub-S. 5 of S. 11 of the Act. He was also of opinion that the evidence in the case went to show that there was no preliminary tender of rent to the landlord before it was deposited is the Rent Controller's office and hence it was not a proper payment of rent within sub-Cl. 4, Section 11 of the Rent Act. We have examined these clauses in the light of the evidence in the case and the findings of the first Court and we do not think that they can be supported. But the learned vakil for the respondent has supported the decree passed by the appellate Court upon a different ground, namely, that on 29th July 1927 there was no Rent Act in operation and the defendant's tenancy having been terminated by a valid notice he was liable to be ejected and hence the decree of the lower appellate Court is correct. This seems to be the correct position to take. Under the general law a landlord is entitled to determine the tenancy of a tenant under him by a valid notice and he is further entitled to recover possession of the property let out to the tenant on the termination of the tenancy. This right of the landlord for a certain period became interrupted by the Rent Act which laid don;n certain circumstances in which recovery of possession of land could not be obtained by the landlord. That bar ceased to exist on 31st March 1927. On the day on which the learned Judge delivered his judgment the law which is the general law under the Transfer of Property Act was in operation and he having found that the tenancy was validly determined he had authority to pass a decree ordering ejectment of the defendant. The effect of a temporary Act running out and ceasing to have any further operation has been considered in many cases. The principle is thus laid down in Craies on Statute Law, 3rd edn, at p. 342:

    As a general rule and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can he taken upon it and it ceases to have any further effect…… As soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.

    4. In Quilter v. Mapleson (1) it was held that the Court of appeal could grant to a party relief to which he was entitled according to the law as it stood at the hearing of the appeal. In his judgment Bowen, L.J observed:

    The rules were intended to enable the Court of appeal to do complete justice. If the law has been altered pending the appeal, it seems to me to be pressing rules of procedure too far to say that the Court of appeal cannot decide according to the existing state of the law.

    5. The same view has been taken in several cases in this country of which reference may be made to Kanahayya v. Janardhan Padhi (2), Muthuswami Ayyar v. Kalyani Animal (3). This principle is based upon another principle that a Court of appeal must in certain exceptional circumstances take notice of events which have happened since the institution of the suit and afford relief to a party on the basis of the altered circumstances: Ram Ratan v. Bishun Churn (4), Ramyad Sahu v. Bindeswari Kumar (5); Udit Chobey v. Rashika Prasad (6); Rustomji v. Purshotamdas (7); and Dinanath Mahish v. Nabahumar Hazra (8). All the relevant cases on this point have been considered by Mookerjee, J., in Rai Charan Mandal v. Biswa Nath Mandal (9). It is true that an appellate Court has to decide a case as it was presented before the trial Court and on a consideration of which the original judgment is based. But if the right claimed is one which has either ceased to exist or been modified by certain events which have transpired since the decree of the trial Court the Court is bound to take notice of it in order to give just and proper relief to the parties to the appeal before it. Upon these and similar considerations R. 33, O. 41 of the CPC, was introduced for the first time by the Act of 1908. A Court of appeal is empowered thereby to make such a decree or order as the case may require. I am accordingly of opinion that the decree passed by the learned Judge was correct on the findings arrived at by him namely that the defendant was tenant-at-will whose tenancy was determined by a valid notice and he was liable to be ejected, though not on the grounds on which the lower appellate Court has relied in support of its decree.

    6. The learned advocate for the appellant has argued that before a decree could be passed against his client for ejectment the validity of the notice should have been determined. In the trial Court an issue was raised with regard to the sufficiency and validity of the notice of ejectment. But that Court having found in favour of the defendant on the law did not enter into a discussion of it. In the appellate Court this question was raised and the learned Judge observed that notice was served on 14th March requiring the defendant to vacate at the termination of the month of March. The defendant signed an acknowledgment of the receipt of the notice but did not vacate the premises. The learned Judge further observes that the defendant admits the receipt of the notice to quit and no evidence has been given to show that the notice is not valid:

    There can be no doubt, therefore, that were it not for the Beat Act the defendant could not resist ejectment.

    7. It is also contended that the learned Judge has misplaced the onus of proving the validity of the notice upon the defendant whereas it being the basis of cause of action in the suit the plaintiff ought to prove that he had validly determined the tenancy. None of these contentions ought to prevail. The learned Judge has dealt with the question of the proof of notice and he has come to the conclusion that it was valid inasmuch as it was not shown that the notice was invalid. This is really not a question of misplacing the onus. It was a tenancy-at-will. The notice was served on 14th March 1925 ending with the last day of the month. Apparently it was a good and sufficient notice under Section 106 of the Transfer of Property Act. The plaintiff, if there was any onus on him, had discharged it by proving the receipt of the notice; and if the defendant contended that it was not a sufficient and valid notice it was for him to show that it was so. I am, therefore, of opinion that it is not necessary to remand the case to the lower appellate Court for a further finding with regard to the sufficiency of the notice. The appeal accordingly fails and is dismissed with costs.

    8. There is a cross-objection on behalf of the respondent, that the amount of damages fixed by the lower appellate Court is insufficient. The learned Judge has decreed damages from 1st April 1925 till possession is given at the rate of Rs. 39 a month that being the standard rent fixed under the Rent Act. The contract between the parties was Rs. 50 a month and this the plaintiff-respondent claims should have been allowed to him by way of damages. It is the plaintiff's case that he terminated the defendant's tenancy by a notice from 1st April 1925 and from that date the defendant was a, trespasser in occupation of the premises. He cannot, therefore, claim as a matter of right that damages must be in the shape of rent which was stipulated between the parties. But it is open to the Court to assess damages which the plaintiff is entitled to get from a trespasser in wrongful possession of the premises. The Bent Controller has found that Rs. 39 was the fair rent of the premises and we cannot say that the principle upon which the learned Judge has assessed damages is so obviously wrong as to entitle us to interfere in second appeal. The cross-objection must accordingly fail. But the decree of this Court will be that the defendant will vacate the premises on 31st March 1928 and in the event of his doing so he will pay damages to the plaintiff (less the money deposited by him in the Rent Controller's office and any amount paid by him for or on behalf of the plaintiff) at the rate of Rs. 39 a month from 1st April 1925 till March 1928. If the defendant fails to vacate the premises on or before 31st March 1928 he will be liable to pay damages to the plaintiff at the rate of Rs. 50 a month from 1st April 1927 till the date of delivery of possession to the plaintiff. We make no order as to costs of the cross-objection. The plaintiff is entitled to the amount that has been deposited to his credit by the defendant in the proceedings under the Rent Act.

    9. Any amount in excess of what is decreed by this order and deposited by the defendant may be refunded to him.

    10. The appeal and cross-objection are dismissed with the modification stated above.

    Graham, J.:— I agree.

    11. Decree modified.

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    Comments

    Suresh Chandra Chatterjee v. Kanti Chandra Bhattacharjee .
    (Feb 29, 1928)