1. The Defendant Appellant was let into occupation of the upper flat of premises No. 23/3, Ray Street as a monthly tenant of the Plaintiff-Respondent at a rent of Rs. 90 per month. There was no contract regulating the time or the manner of payment of rent.
2. On the 15th April, 1943, the Plaintiff served on him a notice to quit requiring him to vacate the flat on the expiry of the month of April, 1943. On his refusal to do so, this suit for ejectment was filed on the 18th June, 1943. The Defendant had already paid the rent for April, 1943, and on the 15th June, 1943, sent to the Plaintiff a cheque for Rs. 90 on the statement that it represented rent for May, 1943. The cheque was refused.
3. On the 28th June, 1943, the Calcutta House Rent Control Order came into force. The Defendant, who filed his written statement after that date pleaded paragraph 9 of that Order (hereafter called the Ordinance) as an answer to the Plaintiff's claim for ejectment. He did not deposit with the Controller of Rent the amount that would have been payable for May, 1943, in respect of which his cheque has been refused, within three months of the date on which the said Ordinance came into force, nor pay or tender to the Plaintiff rent month after month within the fifteenth of the succeeding month, nor deposit the same with the Rent Controller. On the 26th April, 1944, he deposited in a lump Rs. 1,080 in Court. That amount equals what would have been payable for the period May, 1943, to April, 1944.
4. The trial Court, the learned District Judge on First Appeal and our learned brother, Henderson, J., in Second Appeal held that the Defendant was not protected from ejectment as he had not complied with sub-paragraph (4) of paragraph 9 of the Ordinance. On leave being granted the Defendant has filed this appeal under clause 15 of the Letters Patent.
5. So far as ejectment is concerned, the Ordinance does not create an additional cause of action in favour of the landlord. The effect of paragraph 9 is to restrict the right which a landlord has under the general law to eject a tenant, but only if certain conditions are fulfilled by the tenant. If those conditions are fulfilled by the tenant, the landlord would still have the right to eject, if he can bring his case within any of the three provisos to sub-paragraph (7) of paragraph 9.
6. The grounds mentioned in the first and second provisos and in the first part of the third proviso are crystallised ones, but the last part of the third proviso gives a discretion to the Court; any cause which may be adjudged by the Court to be satisfactory would sustain ejectment. Subparagraph (2) of sec. 9 limits the word “satis-factory” in proviso (c) by enacting what cannot be deemed to be satisfactory by the Court. Mere readiness or willingness of the tenant to pay arrears of rent or current rent as it accrues due is not enough to protect a tenant from ejectment, because the conditions which give the tenant protection from eviction under the general law are defined not by sub-paragraph (2) but by sub-paragraphs (I) and (4). He must actually pay or deposit with the Controller of Rent, where the landlord has refused to accept his tender.
7. The word “tenant” has been used in the Ordinance in a special sense. Even apart from the definition of the word “tenant,” which was introduced by an amendment on the 19th May, 1944, a person whose tenancy had expired by efflux of time, or whose tenancy had been determined by notice to quit or on forfeiture would still be regarded as a tenant within the meaning of the Ordinance. The word “rent” used in sub-paragraphs (I) and (4) of paragraph 9 and in paragraph 10 has therefore a special meaning. It refers to the amount which would have been payable periodically—by the month, quarter or year—as if the tenancy was still continuing.
8. The main enactment contained in sub-paragraph (I) must be read along with sub-paragraph (4). The effect is that not only the tenant must pay rent but pay in the manner and within the time indicated in sub-paragraph (4). There cannot be any doubt so far. The point is whethen payment of rent would also have to be made in terms of that sub-paragraph during the pendency of the suit for ejectment and up to the date of the hearing. On this point there is a diversity of judicial opinion. Our learned brother Sen, J., has answered the question in the negative [Sarat Chandra Dutta v. Ushangini Dassi . 49 C.W.N 430 1945.]. He has held that the tenant is protected from eviction if he had paid up all the arrears that had fallen due in terms of sub-paragraph (4) before the institution of the suit, though he had failed to pay in terms of that subparagraph while the ejectment suit was pending. Our brothers Gentle, J. and Ormond, J., have, however, taken the opposite view. [Kanto Mohan Mullick v. Jyotish Chandra Mukherjee . 49 C.W.N 433 1945. and Narendra K. Chakravarty v. Jugal Kishore Gupta* . 48 C.W.N 711 1944.]. We may observe in passing that it does not appear from the report that the attention of our brother Sen, J., was drawn to the said sub-paragraph (4) or to cases decided on the Calcutta Rent Act, III of 1920, sec. 11 whereof was enacted in exactly the same terms as paragraphs 9 and 10 of the Ordinance. Sub-paragraph (I) of paragraph 9 of the Ordinance forbids the passing a decree for possession so long as the tenants pay rent. The phrase “so long as” indicates continuity of payment and the opening words of that sub-paragraph indicate the terminus of that continuity. The payment must continue up to that stage of the ejectment suit when the passing of the decree comes up for consideration, that is, up to the date of final hearing of the suit. In view of sub-paragraph (4) that payment must be in accordance with contract, or where there is no contract, month by month within the 15th of the succeeding month up to the date of final hearing, in order that the tenant may have protection from eviction under the general law. The view we are taking is the view expressed in Bithaldas Chandak v. Lalbehary Dutt & Sons . 25 C.W.N 967 1921. on sec. 11 of the Calcutta Rent Act, III of 1920, which is in exactly the same terms as paragraphs 9 and 10 of the Ordinance. The facts of that case were also exactly of the same type as the facts of the case which we have before us. There also that special Act (the Calcutta Rent Act) came into force while the suit for ejectment of a monthly tenant on notice to quit was pending. The tenant did not pay or deposit the arrears of rent within three months of the Act coming into force and also did not pay or deposit month by month within the 15th day of the succeeding month during the period when the ejectment suit was pending, there being no contract regulating the manner of payment Rankin, J., as he then was, held that there was double default on the part of the tenant for non-compliance of both the parts of sub-sec. (5), of sec. 11 of the Act, which corresponds to sub-paragraph (4) of the Ordinance and so he was not protected from eviction. In the case before us the arrears for May, 1933, which was not validly tendered was not paid or deposited within three months of the 28th June, 1933, when the Ordinance came into force and the rents of the succeeding months were not paid or deposited month by month within the 15th of the succeeding month. The deposit by the Defen-dant in a lump on the 26th April, 1944, is accordingly not a compliance with sub-paragraph (4). The decision in Mathuradas Maganlal v. Nathubhai Vithaldas . I.L.R 47 Bom. 756 1922. cited by the Appellant's Advocate is not helpful. That was a case under the Bombay Rent (War Restrictions) Act of 1918. Sec. 9 of that Act is materially different from sec. 11 of the Calcutta Rent Act of 1920 and paragraph 9 of the Ordinance. The tenant is to be protected from eviction under the Bombay Act so long as “he pays or is ready or willing to pay rent.” There was no provision corresponding to sub-paragraphs (I) and (4)of the Ordinance. That is the first distinction. In that case the tenant did not pay rent before the institution of the suit for ejectment and fail-ed to substantiate his plea that he was ready and ‘willing to pay rent which fell due before the suit. He however deposited all that was due up to the time of the filing of his written statement. It was contended on his behalf that there was locus pocnitentiae, and so the conditions laid down in the Act would be taken to be complied with even if the payment of arrears was made before the decree. That contention was overruled. The landlord contended that the Act required the arrears that were payable before the institution of the suit to be paid before the institution of the suit and not thereafter. That view was accepted. The question before us was not considered as the facts in that case on the basis of which the arguments of the respective parties were advanced and the manner in which those arguments were advanced did not require its consideration.
9. We accordingly uphold the judgment appealed against and dismiss this appeal with costs.
10. In view of the fact that it is very difficult now to find suitable accommodation in Calcutta, we direct that the decree for possession is not to be executed before the 30th September, 1945, if the Defendant pays to the learned Advocate for the Respondent or deposits into this Court Rs. 99 month by month within the 15th of succeeding month towards what would be payable for use and occupation of the premises up to that date. He would be at liberty, if he likes to pay in the like manner or deposit in a lump within the 15th August next, the amount, that would be payable for use and occupation of the premises up to the 30th September, 1945 at the rate of Rs. 99 a month. The Plaintiff-Respondent would be entitled to withdraw the sums of money that are in deposit in this Court and also those that may be deposited hereafter.
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