Nanda Lal Roy Judgment-Debtor, In 2Nd Appeal, v. Suresh Chandra Sen Decree-Holder, In 2Nd Appeal, .

The Judgment of the Court was as follows:

1. The Respondent is the owner of a demarcated portion of premises No. 41, Lyall Street in the town of Dacca. He let out the said portion to the Appellant as a monthly tenant at a monthly rent of Rs. 28 some eight or nine years back. Rent was payable according to the Bengali months. Towards the end of Vadra, 1350 B.S he served a notice to quit requiring the Appellant to vacate the demised premises on the expiry of the month of Aswin following. As the Appellant did not comply, he instituted a suit in the Second Court of the Munsif at Dacca in January, 1944, (Title Suit No. 19 of 1944) for ejectment and for arrears of rent up to Aswin, 1350, and thereafter for mesne profits. On the 13th March, 1944, he got an ex parte decree in accordance with the prayers made in his plaint. At the time of the institution of the suit and at the time when the said decree was passed the Bengal House Rent Control Order of 1942 (hereafter called the Ordinance) was in force in Dacca, but without paragraphs 10, 10A, 10B and 10C, which paragraphs were introduced by an amendment dated the 3rd July, 1944, with effect from 6th July, 1944. There was therefore no fetter on the landlord's right to eject a monthly tenant on notice to quit at the time when the said ejectment suit was filed, as also at the time when the decree therein was passed. After the 6th July, 1944, the position became entirely different by reason of the introduction of paragraph 10.

2. On the 13th July, 1944, the Respondent filed in the 2nd Munsif's Court, Dacca, the Court which had passed the decree, an application for execution. On the same date that Court as an executing Court passed an order directing the writ for delivery of possession under Or. 21, r. 35 (1) of the Code of Civil Procedure to be made over to the nazir, with a further direction to the latter to execute the writ. It appears that the nazir could not deliver possession in terms of the writ as he found the outer door of the premises locked up. On a further application by the Respondent that Court on the 21st July, 1944, gave the nazir the authority to break open the lock. In pursuance of the writ the nazir gave the Respondent possession on the 30th July, 1944, by removing the Appellant. When the nazir had gone to the premises to deliver possession the Appellant asked the Court to stay its hands but to no effect. On the 8th August, 1944, he made an application to that Court under paragraphs 10A and 10C of the Ordinance, which had come into force on the 6th July, 1944. In that application he alleged that the orders for delivery of possession dated the 13th and 21st July, 1944, passed in the proceedings for the execution of the ejectment decree were illegal in view of the provisions of paragraphs 10A and 10C of the Ordinance. He prayed for setting aside those orders and for restoration of possession. On the 19th August, 1944, he paid to the Respondent Rs. 187-8 which would cover rent up to the end of Assar, 1351 B.S at the rate of Rs. 28, which he was paying all along according to the contract of tenancy. This sum was accepted by the Respondent. The learned Munsif and the learned Subordinate Judge on appeal have set aside those two orders passed in execution. On second appeal our learned brother, Henderson, J., has reversed both the Courts below and has dismissed the application. This appeal has been filed under cl. 15 of the Letters Patent. We will now state the reasons given by the Courts below and by our learned brother and consider the soundness thereof. Both the Courts below held that the application so far as it was under paragraph 10A of the Ordinance could not lie, because sub-paragraph (1) thereof relates to intended or pending suits and proceedings for ejectment and subparagraph (2) relates to cases where the decree or order for recovery of possession had already been made but possession had not been recovered from the tenant. They held that the applicant could therefore apply only under paragraph 10C, because possession had already been taken by the landlord by executing the decree. They further held that the orders of the executing Court by which possession had been given to the landlord were bad orders as no permission of the Controller of Rent allowing execution had been obtained by the Respondent. The ejectment suit was taken to be one under proviso (c) of paragraph 10 (1), the plaint of the suit having been construed to be one for recovery of possession on the ground that the landlord required the premises for his own use. The substance of the decision of those Courts was that though as a matter of form or procedure relief could be asked by the Appellant on an application made not under paragraph 10A but under 10C, he was entitled to relief on the ground that the executing Court had not complied with sub-paragraph (2) of paragraph 10A, when issuing the writ for possession. Their decisions assumed that the words “order for recovery of possession” occurring in paragraph 10C included an order made by the executing Court directing delivery of possession in pursuance of a decree for delivery of possession.

3. Our learned brother took a different view of the plaint. He held that the cause of action was based wholly on the notice to quit. We agree with him on this point. No doubt in paragraph 3 of his plaint, the Respondent made the statement that he required the premises for his own use but that statement was made, as the paragraph itself shows, for explaining why he ultimately served the notice to quit. The main reason on which the Munsif and the Subordinate Judge rested their decisions therefore disappears.

4. Our learned brother further held that the phrase “order for recovery of possession” occurring in paragraph 10C meant an order for possession made by the executing Court. We do not agree with him for the reasons to be stated hereafter.

5. Our learned brother also held that the Appellant could invoke the protection of the Ordinance only by paying to the Respondent the arrears of rent not at the rate he was to pay under contract but twenty per cent more, that is, at the rate of Rs. 28 plus Rs. 5-9-7, and as the payment made by Appellant on the 19th August, 1944, was at the rate of Rs. 28 only he was not entitled to invoke the provision of the Ordinance for resisting ejectment. He held that was the effect of the phrase “to the full extent allowable under the Order” occurring in sub-paragraphs (1) and (4) of paragraph 10 of the Ordinance. Mr. Gupta appearing for the Respondent admits that he cannot support this view of our learned brother. We do not wish to rest our judgment on the concession of Mr. Gupta, but would give our decision as the point is of general importance.

6. Confining ourselves to the case where, as in the case before us, a house had been in occupation of a tenant on the 1st December, 1941, the said date being the prescribed date, the Ordinance provides that the landlord cannot charge rent at a rate higher than twenty per cent of the rent that was being paid by the tenant on the 1st December, 1941 (paragraph 3).

7. Under the general law a landlord can enhance house rent only if the tenant agrees to his higher demand, there being no provision as in the Bengal Tenancy Act by which he can enhance rent by suit; and under the general law the rent could be enhanced to any amount by agreement. The Ordinance has made a change in two respects. It has left the right of the landlord to effect enhancement on the basis of contract with the tenant, but has controlled that right by fixing the maximum. The increase is not to be by an amount which is more than twenty per cent of what was being paid on the 1st December, 1941. It has further given the landlord a new right, namely, the right to get enhancement against the will of the tenant by having recourse to the Rent Controller. Here also there is a limit to enhancement—the same limit of twenty per cent. In our judgment, the phrase “to the full extent allowable by the Order” used in sub-paragraphs (1) and (4) of paragraph 10 of the Ordinance means that the tenant is to pay only the rent which was being paid on the 1st December, 1941, plus twenty per cent and not more, in the case where under a contract between him and the landlord entered into after the 1st December, 1941, he had agreed to pay rent at a rate which exceeds twenty per cent of the rent which was being paid on the 1st December, 1941. Under paragraph 10 he is not required to pay the excess over the said twenty per cent in order to get the statutory protection from eviction. The effect is that the tenant must pay the rent settled by the Rent Controller or the rent which he was to pay according to contract as the case may be, but in the last-mentioned case subject to the qualification that where by a contract entered into after the 1st December, 1941, he had undertaken to pay at a rate which is higher than twenty per cent over the rent that was being paid on the 1st December, 1941, he need not pay what is in excess of the said twenty per cent in order to get the benefit of the Ordinance. As in the case before us there was no contract after the 1st December, 1941, by which rent had been enhanced nor an order of the Rent Controller by which rent had been settled, in order to get the statutory protection for eviction the Appellant had only to pay at the rate which he was paying just before the notice to quit, namely Rs. 28 a month.

8. The word “order” in the phrase “order for recovery of possession” used in paragraph 10C is alternative to the word “decree” and so that paragraph must be read as follows:

“Where any order for recovery of possession or any decree for recovery of possession, of any house has been made but possession of the house has not been recovered before the 6th day of July 1941 by the execution of the order for the recovery of possession or by the execution of the decree for possession “etc.

9. If the paragraph is read in that manner, and it must be so read as a matter of construction, it would at once be - apparent that the phrase “order for recovery of possession” cannot mean the order of the executing Court directing deli-very of possession in execution proceedings. That phrase must mean an original order for recovery of possession—an order in the nature of a decree passed in a suit for ejectment. We will hereafter use the phrase original order to distinguish it from an order passed in execution.

10. The further ground on which we rely for our aforesaid conclusion is as follows: It is a well-established principle of construction that the same word or phrase used in one part of a statute must have the same meaning in every other part of the same statute, unless the subject or context implies otherwise. In this light the meaning of that phrase must also be considered. That phrase occurs in paragraphs 10A (z) and 10A (2) which deal with the stage before execution. The word “order” in that phrase occurring therein must therefore mean an original order—an order in an original proceeding—a proceeding analogous to a suit.

11. The learned Advocate for the Appellant, however, contends that this interpretation is hot acceptable. He develops his argument in the following manner:

The draftsman of the Ordinance must be taken to know the distinction between a decree and an order, a distinction which depends upon the form in which litigation is started. The final adjudication of the rights of the parties would be termed a decree or order (original order to adopt our phraseology) according as the litigation had started on a plaint or on an application. But as a litigation to eject a tenant can only be started on a plaint there would be no sense in having the phrase “order for recovery of possession” in paragraph 10C if the word “order” was used to mean “an original” order only. But that phrase cannot be ignored, and on the principle of construction that no word or phrase used by the legislature can ordinarily be cut out we have no other alternative but to take the word “order” used in that phrase to mean an order passed by the executing Court in the absence of a satisfactory explanation. This argument requires careful consideration.

12. In the Presidency towns ejectment proceedings can be started on an application by reason of the provisions of sec. 41 of the Presidency Small Cause Courts Act. A suit is not necessary. So in Calcutta the Small Causes Court, as the trial Court, can make at the instance of the landlord an original order for recovery of possession.

13. On the law of procedure as it was existing in Calcutta when the Calcutta House Rent Control Order, 1943, was promulgated there was nothing unhappy in having the phrase “order for recovery of possession” in paragraphs 9A (1), 9A (2) and 11 thereof, for there could be an original “order for recovery of possession,” an order corresponding to a decree passed in a suit for ejectment. In the Muffasil, however, a tenant can be ejected under the existing procedure only through a suit, and therefore there cannot at present be an original “order for recovery of possession” of the demised premises. Those paragraphs of the Calcutta House Rent Control Order, 1943, were bodily incorporated in the Bengal House Rent Control Order, 1942, by the amendment of the 3rd July, 1944, the date regarding delivery of possession being only altered. That furnishes the explanation as to why the word “order” was left side by side with the word “decree” in that phrase in paragraphs 10A (1), 10A (2) and 10C of the Bengal House Rent Control Ordinance, 1942. As a matter of construction, however, as we have already noticed the phrase “order for recovery of possession” used in paragraph 10C, cannot include an order directing delivery of possession made by the executing Court in execution of a decree for possession. The orders of the executing Court dated the 13th and 21st July, 1944, by which the nasir was enjoined to deliver possession cannot therefore be set aside by the direct invocation of; paragraph 10C. Those orders would fall through only if the decree for possession can be set aside by taking the aid of paragraph 10C. As the Appellants' prayer in the application which he made on the 8th August, 1944, was for setting aside those two orders passed by the executing Court but not the ex parte decree, he cannot strictly ask for any relief in these proceedings, But as the Court to which the application under 10C was made was also the Court which had passed the decree, we think that it would, be proper to proceed on the footing as if that application had been made to the Court which had passed the decree with a prayer for rescinding the decree. If that decree had been subsequently adopted in the lower Court, it would only have required an amendment of the application, which would have been allowed, to avoid multiplicity of proceedings.

14. A decree for ejectment can, however, be rescinded or varied only if the Court comes to the conclusion that it would not have been made at all or made in that form if paragraph 10 of the Ordinance had been in force at the time when the decree was passed. This is what has been laid down in paragraph 10C.

15. At the time when the Respondent instituted his suit for ejectment against the Appellant who was a mere monthly tenant it was not necessary for him to found the cause of action on any of the matters mentioned in the three provisos to paragraph 10 (1). In fact none of the causes mentioned in those provisos would have then given him a cause of action for ejectment—not even the breach of provisions of cls. (m), (o) or (p) of sec. 108 of the Transfer of Property Act, for these breaches would then have furnished a cause of action for damages “only. A notice to quit could be at that time the only available cause of action for ejectment. It would therefore be unreasonable to tie him down to his plaint in an enquiry to be made by the Court under paragraph 10C. We think that in that enquiry he can show that conditions mentioned in any one of three provisos were in fact present, though he had not pleaded them in his plaint, because at the time when the suit for ejectment was instituted none of those pleas would have been relevant. The language employed in the concluding portion of paragraph 10C is wide enough to enable him to raise the pleas mentioned in the provisos and as justice requires that he should be offered the opportunity to raise any one of those pleas mentioned in the provisos to paragraph-10 (I) and to substantiate them by evidence, we do not think that we should give that narrow construction to paragraph 10C, which would have the effect of adding the words “on the case as made in the plaint” after the words “if it is of opinion.” In this view of the matter there must be a remand to the Court of first instance so that the Respondent may say on which proviso to paragraph 10 (I) or which part of provisos (a) and (c), if he relies oh them, he places his case and the parties may lead evidence.

16. Mr. Gupta who is appearing for the Respondent, however, submits that even on this view of paragraph 10C a remand is not necessary, for the Appellant cannot invoke the statutory protection from eviction, as he cannot be taken to have observed the conditions laid down in paragraph 10 of the Ordinance, if it be deemed to have been in force on the 3rd March, 1944, when the decree for ejectment was passed. His argument is that as the Ordinance is to be deemed to be in force on the 3rd March, 1943, though in fact it was not in force then, some adaptation has to be made to paragraph 10 and that the only possible adaptation which the nature of the case demands is to read sub-paragraph (4) without the last sentence which gives the tenant the three months' time to pay up all arrears leaving sub-paragraph (I) as it is. To support his contention he relies upon the decision in Radharani Debt v. Sanat Kumar Chatterjee(1). That decision being of a single Judge Bench has only recommendatory force. The reason given in that judgment for the necessity of an adaptation of sub-paragraph (4) and for the adaptation in that manner is that the tenant would get a much longer time than three months to pay up arrears of rent, if that sub-paragraph be taken as it exists. We are not impressed by that reason. The policy of the Ordinance as expressed is to give to the tenant who is in arrears a period of grace. If an ejectment suit brought against a tenant, who was also in arrears, on a notice to quit had been fixed for final hearing and on that very date the Ordinance had come into operation in fact, the Court could not have passed a decree for ejectment on that date, but would have been bound to postpone the hearing date so as to give the tenant chance to pay up arrears. It is the opportunity to be afforded to pay, and not the time within which to pay, that is of the essence in a case to be considered under paragraph 10C. In the case before us the decree could not have been passed on the 3rd March, 1944, if paragraph 10 had been in force on that date, for though the tenant was in arrears at that date he could not have been deprived of the opportunity to pay them up. In any case if any adaptation is necessary that can be done by substituting the words “commencement of the order” in place of the words “sixth day of July, 1944,” because the 6th day of July, 1944, was in fact the date of the commencement of paragraph 10 of the Ordinance, and to take the phrase “if the provisions of paragraph 10 of this Order had been in operation at the date of ……… the decree,” used in paragraph 10C, as it can be done without straining the language unduly, as equivalent to the phrase “if the provisions of paragraph 10 ………….. had come into operation at the date of the………. decree.” This would avoid the mutilation of paragraph 10 (4) and so, would accord with the fundamental principle of construction of “statutes, that that interpretation is to be preferred which avoids additions to or omissions of words or phrases from a statute. We cannot therefore accept the decision on this point in Radharani Debi's case or Mr. Gupta's argument on this point. The net effect of sec. 10C is that the Court would look only into the question as to whether facts justifying the application of any one of the provisos to paragraph 10 (I) were in existence at the time when the decree in question was made.

17. The result is that this appeal is allowed.

18. The judgments of the Courts below and of this Court in the second appeal are set aside. The case is remanded to the learned Munsif. On receipt of the record he will cause written notices of the arrival of the records to be served on the pleaders of both parties as soon as possible. The Respondent must within ten days of the service pf the said notice on his pleader state to Court in writing on which of the provisos to paragraph 10 (I) of the Ordinance and on which parts thereof he relies, and he must also give such particulars in that statement as is required in plaints. The learned Munsif would give to the parties opportunity to lead evidence—the Respondent in support of his statement, and the Appellant in rebuttal. The learned Munsif is requested to decide the case as expeditiously as possible, and if possible before the Court closes for the next long vacation. The costs before us and of the second appeal as also of the final hearing after remand would abide the result. The parties would bear their respective costs of the past hearings before the learned Munsif and the Subordinate Judge.

19. Let the records be sent down without delay.