Citation Codes

Equivalent Citations

citation codes

Case Number

A.F.O.O No. 78 of 1950

Judges

Harries, C.J
Banerjee, J.

Acts

Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872,
provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.23.
provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.
Sec. 18 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.2.
Sec. 12(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948,
31, 1950, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950,
provisions of sub-sec. (5) of Sec. 18 of the present Act.
provisions of sub-sec. (1) of Sec. 18 of the present Act.
provisions of secs. 11 and 12 of the 1948 Act
sub-sec. (3) of Sec. 12 of the 1948 Act. Suits
Sec. 12 (1)(b) and sub-sec. (2) of the 1948 Act.
Sec. 12 (1)(b) and Sec. 12(2) of the 1948 Act
provisions of Sec. 12 (3) of the 1948 Act,
sub-sec. (3) of Sec. 12 of the 1948 Act
1948, Rent Control Act.

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Smart Summary

Judgment Summary — Harries, C.J. (with Banerjee, J. concurring)

Factual and Procedural Background

This is an appeal from an order of Bachawat, J., dated 9 May 1950, made on an application under Section 18(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The applicant (Defendant-Respondent in the original ejectment suit) sought that a decree for possession passed in an earlier suit between the parties be vacated and that he be allowed to pay arrears of rent within a time to be fixed by the Court.

Facts as set out in the opinion: the Defendant-Respondent had been occupying rooms (a shop and a store room) at No. 114/1, Cotton Street as tenant of the Plaintiff-Appellant. In August 1949 the Plaintiff-Appellant sued for ejectment and recovery of arrears, alleging default in payment of rent for three consecutive months and also alleging forfeiture in respect of one room. Sarkar, J., heard the original suit and held that the Respondent had defaulted for three consecutive months; accordingly, by reason of Section 12(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Respondent's interest had been ipso facto determined and Sarkar, J., made a decree for possession.

The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force on 31 March 1950 and purported to repeal the 1948 Act. Section 18 of the 1950 Act contains provisions for reopening certain decrees for possession previously made under the 1948 Act. The Defendant-Respondent applied to the trial court under Section 18(1) to vacate the ejectment decree; Bachawat, J., allowed that application and gave the Respondent an opportunity to pay arrears as calculated under the 1950 Act. The Plaintiff-Appellant appealed from Bachawat, J.'s order to the Bench that delivered this opinion.

Legal Issues Presented

Whether Section 18(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 applies to a decree for possession obtained against a person whose interest in the premises had been ipso facto determined under Section 12(3) of the 1948 Act (i.e., a decree obtained against a person who had become a trespasser by reason of three months' non-payment of rent).
Whether a decree obtained under those circumstances can properly be characterised as "a decree for recovery of possession ... made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948," as phrased in Section 18(1) of the 1950 Act.
What meaning should be given to the word "tenant" in Section 18(1) of the 1950 Act — whether it can include a person whose statutory interest has been determined under Section 12(3) of the 1948 Act.

Arguments of the Parties

Appellant's Arguments (Mr. A.K. Sen)

Section 18(1) cannot apply to decrees obtained against trespassers; the Respondent ceased to be a tenant before he was sued by operation of Section 12(3) of the 1948 Act.
Once there has been three consecutive months' default the tenant's interest is ipso facto determined; the Respondent was sued as a trespasser and had no defence — there was no statutory provision under the 1948 Act permitting a tenant to save his tenancy by payment once Section 12(3) operated.
Consequently, the decree obtained was an ordinary ejectment decree against a trespasser and not a decree "made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act" within the meaning of Section 18(1) of the 1950 Act.

Respondent's Arguments (Mr. Meyer and reliance on Bachawat, J.)

Advocated a wide and liberal construction of the phrase "on the ground of default in payment of arrears of rent under the provisions of the 1948 Act."
Contended that a decree against a person whose interest had terminated by reason of Section 12(3) of the 1948 Act was nonetheless a decree made on the ground of default in payment of arrears (the very failure to pay for three consecutive months being the cause of the decree).
Bachawat, J., had accepted this wider construction and granted the Respondent an opportunity to pay arrears under Section 18(1) of the 1950 Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Opinion
Manicklall Dutt v. S. Dabiruddin Ahmed (decision of P.B. Mukharji, J.)	P.B. Mukharji, J., had interpreted Section 18(5) of the 1950 Act and held that a person whose interest had been determined under Section 12(3) of the 1948 Act could not be described as a "tenant" for the purposes of that subsection, and that a decree against such a person was a decree against a trespasser (not a decree "on the ground of default in payment of arrears" under the 1948 Act).	The judgment under review discussed this earlier decision at length as presenting the contrary view. Harries, C.J., summarised P.B. Mukharji's reasoning and then analysed the statutory scheme; he disagreed with that earlier decision on the central point of whether Section 18(1) applies to decrees made against persons whose interest had been determined under Section 12(3) (holding that Section 18(1) does not apply). The earlier decision was therefore considered and rejected for the purposes of this appeal.
Karnani Industrial Bank, Ltd. v. Satya Niranjan Shaw (Privy Council)	Authority cited for giving an extended meaning to the word "tenant" (and specifically a passage of Lord Atkin relied on to support a wide construction of statutory definitions).	Harries, C.J., accepted that the word "tenant" in Section 18(1) of the 1950 Act must be given an extended meaning (and referred to the Privy Council authority). However, he held that even if "tenant" covers a person whose interest had been determined under Section 12(3), that fact does not bring decrees against such persons within Section 18(1) because such decrees are not "made on the ground of default in payment of arrears" under the 1948 Act.

Court's Reasoning and Analysis

The Court's analysis proceeds from a careful reading of the statutory scheme in the 1948 Act (especially Sections 11 and 12) and the remedial provision in Section 18 of the 1950 Act. The reasoning in the opinion can be summarised in the following steps, strictly as set out in the text:

The Court set out Sections 11 and 12 of the 1948 Act and explained their effect: Section 11 generally protected tenants from orders for possession while they paid rent allowable under the Act; Section 12 specified the exceptions and the circumstances in which a tenant would not be entitled to the protection of Section 11.
Section 12(3) of the 1948 Act provides that if a tenant fails for three consecutive months to pay or deposit rent that has become due after commencement of the Act, the tenant's interest in the premises is ipso facto determined and "he shall no longer be deemed to be a tenant." The Court emphasised that this sub-section leaves the tenant no opportunity thereafter to save his interest by payment: the tenant's interest is ended immediately on the specified default.
By contrast, in cases to which Section 12(1)(b) and Section 12(2) apply (arrears falling due before commencement, or arrears incurred after commencement but not amounting to three consecutive months), the Act expressly gives the tenant a limited opportunity to pay arrears or to deposit sums in Court and thereby avoid an immediate decree for possession. Thus, decrees in those cases are tied to a tenant's failure to take advantage of the statutory opportunity to pay.
Section 18(1) of the 1950 Act applies to "any decree for recovery of possession ... made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act" where possession has not been recovered. The Court analysed the legislative phrase "made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act" and asked whether decrees obtained after Section 12(3) had operated fall within that description.
The Court concluded that decrees obtained against persons whose interest had been terminated under Section 12(3) are decrees against trespassers and not decrees "made on the ground of default in payment of arrears" in the sense contemplated by Section 18(1). Although the factual cause of the interest's termination is non-payment for three months, once Section 12(3) has operated the legal basis of the ejectment suit is that the defendant has no interest and is a trespasser — there is thereafter no statutory route by which payment of arrears can save the tenancy.
The Court accepted that the term "tenant" in Section 18(1) must be given an extended meaning (and cited the Privy Council decision in Karnani Industrial Bank v. Shaw to that effect). Nevertheless, even if a person whose interest has been determined is described as a "tenant" for the Act's purposes, that does not make a decree against such a person one "made on the ground of default in payment of arrears" under the 1948 Act because the essential statutory feature of those decrees is that they are issued after the tenant has failed to take advantage of the statutory opportunity to pay arrears.
The Court therefore distinguished decrees which are the consequence of a tenant's failure to avail himself of statutorily provided opportunities to pay arrears (within Sections 12(1)(b), 12(2)) from decrees following operation of Section 12(3). Only the former class of decrees falls within the scope of Section 18(1) of the 1950 Act.
On that basis the Court found that the decree made by Sarkar, J., (which followed his holding that Section 12(3) had operated and the Respondent had become a trespasser) did not fall within Section 18(1) and that the trial court (Bachawat, J.) erred in re-opening that decree under Section 18(1).

Holding and Implications

Holding: The appeal is allowed. The order of Bachawat, J., dated 9 May 1950 is set aside and the Respondent's application under Section 18(1) of the 1950 Act is dismissed.

Consequences and immediate effects (as stated in the opinion):

The decree for possession made by Sarkar, J., remains unaffected by Section 18(1) of the 1950 Act because that decree was made after the Respondent's interest had been ipso facto determined under Section 12(3) of the 1948 Act and was therefore not a decree "made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act."
The application under Section 18(1) that had been allowed by Bachawat, J., is dismissed; the Appellant (the plaintiff in the original suit) is entitled to costs in this Court; the judgment is certified for two Counsel.
The Bench expressly recorded a resolution of the conflict of opinion that had existed between the earlier decision of P.B. Mukharji, J., and the decision of Bachawat, J.; the Court preferred the reasoning set out above and refused to extend Section 18(1) to decrees following operation of Section 12(3) of the 1948 Act.

The judgment rests on statutory construction and a distinction drawn by the Court between (a) decrees made after operation of Section 12(3) (where the tenant has become a trespasser and has no statutory opportunity to save the tenancy) and (b) decrees made in circumstances where the tenant had an opportunity under Sections 12(1)(b) and 12(2) to pay or deposit arrears and thereby avoid a decree. The Court held that Section 18(1) of the 1950 Act applies to the latter category and not to the former.

Order: Appeal allowed; the order of Bachawat, J., is set aside; the application under Section 18(1) is dismissed; appellant awarded costs in this Court; judgment certified for two Counsel. Banerjee, J., concurred.

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Sm Nandorani Dassi v. Satya Narain Habit .

Harries, C.J:— This is an appeal from an order of Bachawat, J., dated May 9, 1950, on an application under Sec. 18 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

2. The application prayed that a decree for possession passed in a suit between the parties should be vacated, and that the Petitioner should be granted leave to pay the arrears of rent due from him to the Plaintiff-Appellant within a time to be fixed by the Court. The Defendant-Respondent was a tenant of the Plaintiff-Appellant in respect of rooms occupied as a shop and store room in premises known as No. 114/1, Cotton Street in this dry. In August of 1949, the Plaintiff-Appellant instituted a suit for ejectment of the tenant from these rooms and for recovery of arrears of rent, taxes, electricity Charges, etc. In the plaint the Appellant alleged that the Respondent had defaulted in the payment of rent for three consecutive months and, therefore, that the tenancy had ipso facto determined. There was a further allegation that the tenancy with regard to one room had been forfeited on account of certain breaches of covenant.

3. In due course the suit came for hearing before Sarkar, J., who held that the Respondent had defaulted in the payment of rent for three consecutive months and, therefore, by reason of Sec. 12(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Respondent's interest in the premises had been ipso facto determined. He further held that no relief could be granted on the basis of forfeiture, but with that finding we are no longer concerned. He accordingly made a decree for possession of the said premises.

4. On March 31, 1950, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which for the purposes of convenience I shall refer to as the present Act, came into force. It purported to repeal the earlier Act of 1948.

5. In the present Act provision is made for re-opening decrees for possession made in certain circumstances under the 1948, Rent Control Act. The section which is relevant in this case is Sec. 18 of the present Act, sub-sec. (1) of which is in these terms:

“Where any decree for recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this sub-section till the application has been dismissed under sub-sec. (4).”

6. Sub-sec. (2) of this section provides:—

“The Court shall, as early as may be, serve notice of the application on the landlord and after hearing the parties if the landlord appears, determine the amount of rent which would have been payable by the tenant and would be in arrears if the tenancy continued unbroken up to and including the month in which the order stated hereafter is to be made, and order the tenant to pay the said amount as also the amount of interest on such arrears of rent calculated at the rate of nine and three-eighths per centum per annum together with such costs, if any, as may be adjudged to the landlord, within such time, not later than forty days from the date of the order, as the Court may fix.”

7. It is then provided by sub-secs. (3) and (4) that if the tenant pays the sum calculated in the manner aforesaid within the time fixed the decree for ejectment shall be vacated and the tenancy is to continue as if it had never been terminated. On the other hand, if the tenant fails to make the payment within the time allowed the application is to be dismissed.

8. Bachawat, J., in the absence of Sarkar, J., allowed the application of the Respondent in this case and gave him an opportunity of paying the amount of the arrears of rent which had been calculated within a certain time. It is from that order that the present appeal has been preferred.

9. It had been contended before Bachawat, J., in the Court below that Sec. 18 (1) of the present Act could have no application to the decree which the Plaintiff had obtained. It was urged that Sec. 18 (1) did not apply to decrees obtained against trespassers. It was urged that the Respondent could not possibly be described as a tenant as that term is used in Sec. 18 (1) of the present Act. It was said that by reason of sub-sec. (3) of Sec. 12 of the 1948 Act the Respondent had ceased to be a tenant before he had been sued and that he was nothing more than a trespasser against whom a suit for ejectment was brought. The decree, therefore, was an ordinary decree for the ejectment of a trespasser and the Respondent could in no way be described as a tenant, no matter how wide a meaning is given to that word in sub-sec. (1) of Sec. 18 of the present Act. It was further contended before Bachawat, J., that in any event the decree for possession obtained in this case could not be re-opened under Sec. 18 (1) of the present Act because it was not a decree for recovery of possession of the premises made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. The contention was that the decree was made on the basis that the Respondent was a trespasser, and it could never be said that the decree was made on the ground that the Respondent had defaulted in the payment of arrears of rent due from him.

10. When this case was argued before Bachawat, J., a previous case had been decided by P.B Mukharji, J. That was the case of Manicklall Dutt v. S. Dabiruddin Ahmed(1). In that case P.B Mukharji, J., had to deal with Sec. 18 (5) of the present Act where somewhat similar word's are used. It would perhaps be convenient to set out the terms of that sub-section which reads as follows:—

“If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Court or in Court of first or second appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Court shall exercise the powers of granting relief against ejectment given by Sec. 14 of this Act following the provisions and procedure of that section as far as may be necessary, and for the said purpose shall make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just.”

11. It will be seen that in this sub-section the word “tenant” appears and so do the words “a decree passed on the ground of default in payment of arrears of rent under the provisions of the 1948 Act.” It may be that the word “tenant” in sub-sec. (5) can have a different meaning from that to be given to the word “tenant” in sub-sec. (1). But P.B Mukharji, J., was of opinion that the Respondent in the present appeal could not be described as a tenant coming within the provisions of sub-sec. (5) of Sec. 18 of the present Act. He was further of opinion that a decree made against a person whose interest had been determined by reason of sub-sec. (3) of Sec. 12 of the 1948 Act could never be described as a decree for ejectment of a tenant on the ground of default of payment of arrears of rent under the provisions of the 1948 Act. In the view of P.B Mukharji, J., it was a decree against a trespasser and, therefore, such a decree did not fall within the provisions of sub-sec. (5) of Sec. 18 of the present Act.

12. In the case now before us on appeal Bachawat, J., had to consider the provisions of sub-sec. (1) of Sec. 18 of the present Act. The earlier decision of P.B Mukharji, J., was cited to him, but Bachawat, J., could not agree with the view expressed by P.B Mukharji, J. In the view of Bachawat, J., a decree obtained against a tenant whose interest had been terminated by reason of sub-sec. (3) of Sec. 12 of the 1948 Act could be properly described as a decree for ejectment obtained against a tenant and obtained on the ground of default in payment of arrears of rent. There is, therefore, a sharp conflict of judicial opinion upon the construction to be given to Sec. 18. Normally, I should have reserved my judgment in this case, but as it is of the greatest importance that this conflict should be immediately resolved, we have decided to deliver judgment immediately.

13. Mr. A.K Sen who has appeared on behalf of the Appellant has contended that we should follow the views expressed by P.B Mukharji, J. He has urged that the Respondent in this case can never be described as a tenant against whom a decree was made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act. His argument is that the Respondent before he was sued had become a trespasser. He was sued as a trespasser and no question of default in payment of arrears of rent could ever arise in the case. He had no defence whatsoever to the suit and the 1948 Act did not provide for any relief if the rent was paid at any time either before the suit was filed or during the pendency of the suit. Mr. Sen has stressed the fact that the moment there had been three consecutive months' default in payment of rent the Respondent ceased to have any interest whatsoever in the premises and was liable to be ejected forthwith. Further, Mr. Sen has pointed out that by the very terms of Sec. 12 (3) of the 1948 Act the Respondent was not to be regarded as a tenant for the purposes of that Act after the date of the default for the third consecutive month.

14. To appreciate the point at issue it will be necessary to set out the provisions of secs. 11 and 12 of the 1948 Act in so far as they are material. Sec. 11 (1) provides:

“Notwithstanding anything contained in the Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays to the full extent the rent allowable by this Act and performs the conditions of the tenancy.

Provided that nothing in this sub-section shall apply….”

15. Then follow cases where the tenant may be ejected. Sec. 12 is in these terms:

“(1) No tenant shall be entitled to the benefit of Sec. 11 in respect of any premises unless—

(a) he pays the rent allowable by this Act and due by him in respect of such premises to the full extent within the time fixed in the contract with his landlord or, in the absence of such contract, by the fifteenth day of the month next following that for which the rent is payable, and

(b) in the case where any rent has accrued due before the commencement of this Act, he also pays within one month after the date of such commencement all arrears of rent allowable by this Act and due by him in respect of such premises, to the full extent together with, where the arrears are already the subject-matter of a suit or proceeding before a Court or of any decree or order of Court, interest thereon at the rate of six and a quarter per cent. per annum and such costs as the Court may award, and

(c) in the case where the Controller has, in fixing the standard rent, allowed any increase in the rate of rent payable in respect of such premises with effect from any date earlier than the date of the order, he pays also the amount that has become payable by him on account of such increase, for any period preceding the date of such order, to the full extent and within the time specified in this behalf by the Controller or, in the absence of any such specification, within one month of the date of such order, or

where the landlord refuses to accept any rent referred to in cl. (a), cl. (b) or cl. (c), or where there is a bona fide doubt or dispute as to the person who is entitled to receive such rent, unless the tenant deposits such rent and all subsequent rent allowable by this Act which becomes due in respect of such premises as provided in Sec. 19 together with, in the case mentioned in cl. (b) of sub-sec. (1) of that section, the cost of transmission referred to in that clause within the time specified in that Sec….

(2) Subject to the provisions of sub-sec. (3), no suit or proceeding instituted against a tenant after the commencement of this Act for the recovery of possession of any premises on the ground of default in making any payment or deposit referred to in sub-sec. (1) shall be further proceeded with if, within one month from the date of service of process on the tenant, he pays through the Court all arrears of rent allowable by this Act up to date together with interest thereon at the rate of six and a quarter per cent. per annum and such costs as the Court may award.

(3) Notwithstanding anything contained in this Act or in any other law for the time being in force, if a tenant fails for three consecutive months to pay or deposit in accordance with the provisions of this Act any rent payable by him in respect of any premises which has accrued due after the commencement of this Act, the interest of the tenant in such premises shall on such failure be ipso facto determined and he shall no longer be deemed to be a tenant.”

16. It will be seen from these provisions that as long as the tenant paid to the full extent the rent allowed by the Act and performed the conditions of his tenancy no decree for possession could be made against him except on the grounds mentioned in the provisos (a) to (f) of sub-sec. (1) of Sec. 11. Mere non-payment of rent was not in itself a ground for ejectment. It is, however, provided by sub-sec. (3) of Sec. 12 of the 1948 Act that if a tenant fails to pay the rent for three consecutive months or to deposit the same in accordance with the provisions of the Act the interest of the tenant in such premises shall on such failure be ipso facto determined. This sub-section applies not only to statutory tenancies, that is, the right to possession protected by the Rent Acts, but also to contractual tenancies where the tenancies have not been determined. Failure to pay rent for three consecutive months brings immediately the tenant's interest in the premises to an end. It is to be observed that the words are that the “interest of the tenant shall be ipso facto determined,” not that the tenancy shall be ipso facto determined. It follows that when there has been a failure to pay rent for three consecutive months the tenant not only ceases to be a tenant, but he ceases to have any interest whatsoever in the premises, and the sub-section goes on to say “and he shall no longer be deemed to be a tenant.” These latter words I think were necessary by reason of the definition of the word “tenant” given in Sec. 2 (11) of the 1948 Act. By that sub-section an extended meaning was given to the word “tenant” and the term included “a person continuing in possession after the termination of a tenancy in his favour.” But for the words “he shall no longer be deemed to be a tenant” in the sub-section, it could have been argued that the tenant could still be regarded as a tenant under the Act though his interest in the premises had ceased. It might be said that the definition only contemplated cases where a tenant's interest in the tenancy had ceased, whereas by reason of sub-sec. (3) of Sec. 12 the tenancy not only ceased, but the tenant ceased to have any interest whatsoever in the premises.

17. The Respondent was a tenant whose interest had been determined by reason of default in the payment of rent for three consecutive months. Sarkar, J., held, and indeed he was bound to hold, that though no notice to quit had been served, the Respondent had ceased to have any interest in the premises and was nothing better than a trespasser.

18. As I have said earlier, no decree for possession under the 1948 Act could be made merely on the ground that rent had not been paid as provided in the contract. If a landlord had terminated a tenancy by notice he could bring a suit for ejectment and if he could establish that the rent had not been paid as provided by the contract, the tenant would cease to have the protection given by the Act. However, the landlord was not entitled to an immediate decree on showing a failure to pay rent unless it was a failure to pay rent for three consecutive months, thus bringing the case under sub-sec. (3) of Sec. 12 of that Act.

19. Where rent was in arrear but no rent for three consecutive months was in arrear the Court would only give the landlord a decree for ejectment if the tenant failed to avail himself of provisions in the Act giving him a right to pay the arrears of rent due from him. If these arrears had accrued due before the 1948 Act applied then the relevant provision is Sec. 12 (1)(b) of the Act. The tenant could prevent a suit by paying these arrears within one month of the date of the Act coming into force, that is within one month of December 1, 1948. However, if a suit had already been brought then no decree would be passed if the tenant paid up the arrears of rent within that period together with interest at the rate of six and a quarter per cent. and such costs as the Court might order.

20. If the tenant went into arrears after the 1948 Act was passed and was sued for possession no decree for recovery of possession could be passed if within one month from the date of service of process on the tenant be paid through the Court all arrears of rent allowable by the Act up to the suit together with interest at six and a quarter per cent. and costs.

21. It will be observed that sub-sec. (3) of Sec. 12 gives a tenant no opportunity at all of paying the arrears of rent once there has been default in the payment of rent for three consecutive months. Such failure ipso facto determines the tenant's interest in the premises and no tender by him of the rent thereafter can affect the position. Of course if the rent was tendered and accepted by the landlord a new tenancy might be created. But it is clear that the landlord could refuse any rent tendered after the interest of the tenant had been determined and could bring a suit to eject his late tenant as a trespasser. Further there is no provision whereby the tenant could avoid a decree by paying the arrears with interest and costs into Court. In short, there is no defence at all to a suit for ejectment of a person whose interest was determined under sub-sec. (3) of Sec. 12 of the 1948 Act. Suits under that section, therefore, were on an entirely different footing from suits for ejectment brought against tenants in which allegations were made of non-payment of rent, but not of non-payment of rent for three consecutive months. In cases of suits brought where arrears of rent were claimed, but where there had been no default for three consecutive months the tenant could avoid a decree by depositing in Court within a certain time the arrears of rent due. Further the tenants could prevent a suit being brought by payment of the arrears before the institution of such a suit. However, if the tenant allowed rent to fall into arrears for three consecutive months he could do nothing to prevent a decree for ejectment being made against him. The landlord could refuse to accept the arrears if tendered and the tenant could not avoid a decree by paying the arrears into Court in any manner whatsoever.

22. Mr. A.K Sen has contended that Sec. 18 (1) only applies to decrees made against tenants where the tenants had an opportunity of paying the arrears of rent which had become due and had failed to do so. His argument is that Sec. 18 (1) of the present Act applies to suits which are governed by Sec. 12 (1)(b) and sub-sec. (2) of the 1948 Act. On the other hand, he has urged that where the interest of the tenant has been determined under sub-sec. (3) the suit against the tenant was a simple suit in ejectment on the ground that the tenant had become a trespasser. He has contended, however, that the suit against a tenant whose interest had not been determined under sub-sec. (3) of Sec. 12 was of a different nature. Where rent was in arrear that would be alleged in the suit and claimed. But proof of arrears of rent other than arrears for three consecutive months would give the landlord no right to an immediate decree. Under Sec. 12 (1)(b) and Sec. 12 (2) the arrears could be paid into Court within a certain time and if that was done no decree could be passed. If a case came before a Court before the expiry of the period within which the arrears could be deposited in Court no decree could be properly made. A decree for possession could only be made in such cases when no payment of the arrears had been made and no deposit of the amount due made in Court within the prescribed time after the suit had been instituted. Where however the amount of arrears were not deposited within the time provided, a decree for possession could be made against the tenant. Mr. Sen has contended that only decrees made in these circumstances can be truly described as decrees made on the ground of default of payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.

23. It appears to me that there is considerable force in this contention. Where the suit is a suit for ejectment of a tenant whose interest has determined by reason of Sec. 12(3) of the 1948 Act, no question of payment of the arrears can ever arise to save the tenant's interest. On the failure to pay the rent for three successive months the tenant's interest has for ever determined and he cannot save it by tendering the arrears or paying the same into Court after a suit has been instituted. The decree is made against the late tenant because he has lost all interest in the premises and has become a trespasser. The decree cannot be said to have been made against him on the ground that he had failed to pay the arrears of rent. Once the rent for three consecutive months had not been paid the tenant could never save his interest thereafter by tendering payment or depositing the some in Court. On the other hand, where the interest of the tenant had not been determined under Sec. 12(3) a decree for possession if passed could well be described as a decree made on the ground of default in payment of arrears of rent. When a tenant who is in arrear with his rent is served with a notice to quit, his tenancy expires on the determination of that notice. But though there are arrears, if not arrears for three consecutive months, the tenant would still be entitled to remain in possession until ordered by a Court to vacate. A suit for ejectment brought against him alleging the arrears of rent would not, as I have already said, be immediately decreed. The sections, which I have already referred to, gave the tenant a last opportunity to pay the arrears and if he paid them or deposited the amounts in Court no decree could be made. Decrees would only be made when default had occurred in the payment of the arrears, or in other words, if the arrears had not been paid within the period specified in Sec. 12 (1)(b) and sub-sec. (2). In these cases, therefore, the immediate cause of the decree was the failure of the tenant to avail himself of the opportunity given to him by these sub-sections of paying the arrears and thus saving his interest. The decree could properly be said to be passed because of the tenant's default in the payment of these arrears under the provisions of the 1948 Act. As no question of the payment of arrears to save the tenant's interest could ever arise where a suit had been instituted under the provisions of Sec. 12 (3) of the 1948 Act, the decree in that suit could not in my view be reasonably said to have been made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act.

24. Mr. Meyer on behalf of the Respondent has urged that we should give a wide and liberal construction to the words “on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.” He has asked us to hold as Bachawat, J., held that a decree made against a person whose interest in premises had terminated by reason of Sec. 12(3) of the 1948 Act, was a decree made on the ground of default in payment of arrears of rent. He has urged, as Bachawat, J., had held, that the reason for the decree is the failure to pay rent for three consecutive months. That is so. What made the tenant into a trespasser was this failure to pay rent for three consecutive months. But I cannot overlook the fact that the tenant is then sued as a trespasser and no question of making good the arrears of rent to save the tenancy can ever arise. The decree in a case falling within Sec. 12(3) of the Act is a decree made on the ground that the tenant's interest in the premises had wholly determined and that he had no right whatsoever to remain on the premises. Though the cause of such determination is the failure to pay rent for three successive months, the decree itself is not based on such a failure. It is based on the fact that the tenant has ceased to have any interest whatsoever in the premises and is not to be regarded as a tenant within the meaning of the 1948 Act. On the other hand, where there are arrears of rent the case does not fall within Sec. 12(3) of the 1948 Act and the tenant cannot be said to have lost all interest in the property merely because the rent is in arrear. The arrears do not give the landlord an immediate right to eject the tenant. If those arrears gave the landlord an immediate right to eject the tenant then the tenant could not possibly avoid a decree by making a deposit in Court after the suit was instituted. However, the law provides that a tenant can avoid a decree and retain his interest in the property by paying the arrears in the manner indicated in the sections I have referred to. It is only when the tenant fails to pay these arrears that a decree for ejectment is made. It appears to me that in such a case the ground upon which the decree is made is the failure to pay the arrears within the time allowed by law. Mr. Meyer has contended that the decree is based on the ground of the original failure to pay the rent, but as I have said already that is not so. If the original failure to pay the rent was the ground for the decree then no opportunity could be given to the tenant to pay the arrears even after a suit had been instituted. Normally, the cause of action must be complete when the suit is instituted, but the mere existence of the arrears will not do. There must be a failure to take advantage of the time given by the law to pay the arrears and it is only when failure to take such advantage occurs that a decree is made. In short it can be said that the decree is made because of the default and that appears to me to be the type of decree which the legislature had in mind when enacting sub-sec. (1) of Sec. 18.

25. It must be remembered that under Sec. 12 (1)(b) and Sec. 12(2) of the 1948 Act the tenant had been given an opportunity of saving his interest at the last moment. It seems the legislature might have thought that where a tenant who had already been given an opportunity had failed to avail himself of that opportunity it might be reasonable to give him a little more time to pay up the arrears. However the legislature may well have thought that where the 1948 Act gave the tenant no right whatsoever to save his interest by paying the arrears a decree made in such circumstances ought never to be re-opened.

26. It was contended before P.B Mukharji, J., that the word “tenant” as used in Sec. 18(1) could never cover the present Respondent who could only be described as a trespasser. P.B Mukharji, J., appears to have been of the view that the present Respondent could never be described as a tenant as defined in either the 1948 or the present Act. Bachawat, J., however, was of opinion that the word “tenant” when it appears in the present Act must be given an extended meaning and he relied upon a decision of their Lordships of the Privy Council in Karnani Industrial Bank, Ltd. v. Satya Niranjan Shaw(2). It seems to me clear that the word “tenant” in sub-sec. (1) of Sec. 18 of the present Act must be given an extended meaning because the word is used with regard to a person against whom a decree for possession has been made and obviously a person against whom a decree for possession has been made can no longer be a tenant as that word is ordinarily defined. He is merely a person who has been a tenant and whose interest is determined. Tenant in the present Act is defined in Sec. 2(11) as follows:—

“‘Tenant’ means any person by whom rent is, or but for a special contract should be, payable for any premises, and includes any person who is liable to be sued by the landlord for rent.”

27. Bachawat, J., was of the opinion that the word “tenant” must be given a very wide meaning and giving it such a meaning it would include a person who had been ejected by reason of the provisions of Sec. 12(3) of the Act. It does appear to me that the word “tenant” appearing in sub-sec. (1) of Sec. 18 of the present Act must be given a very wide meaning as it undoubtedly covers a person against whom a decree for ejectment has been made though such a decree has not been executed. Obviously, a person against whom a decree for ejectment has been made has no longer any contractual or statutory interest in the tenancy. Nevertheless he is described as a tenant. The word “tenant” is, therefore, used to describe a person whose interest in the premises has ceased and, therefore, the word as used in the sub-section could cover the case of a person whose interest in the premises has ipso facto been determined under Sec. 12(3). That, however, cannot help the present Respondent because the decree passed against such person, though he may be described as a tenant, as the word is used in Sec. 18(1) of the present Act, is not a decree made on the ground of default in payment of arrears. Further, as pointed out by Lord Atkin in the case of Karnani Industrial Bank, Ltd. v. Satya Niranjan Shaw, the definition could strictly be said to cover the Respondent who certainly owed rent for three consecutive months which could be recovered from him.

28. For the reasons which I have given I hold that Sec. 18(1) of the present Act has no application to the decree made by Sarkar, J., and, therefore, the application should in my opinion have been dismissed.

29. The appeal must, therefore, be allowed.

30. The order of Bachawat, J., is set aside and the application will be dismissed. The Appellant is entitled to her costs in this Court. Certified for two Counsel.

31. Before concluding I should like to express my appreciation of the very full and able argument of Mr. Sen and Mr. Meyer in this case.

32. Solicitors: J.K Bose for the Appellant; B.M Bagaria for the Respondents.

Banerjee, J.:— I agree.

N.D.R

Sm Nandorani Dassi v. Satya Narain Habit .

Judgment Summary — Harries, C.J. (with Banerjee, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Mr. A.K. Sen)

Respondent's Arguments (Mr. Meyer and reliance on Bachawat, J.)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sm Nandorani Dassi v. Satya Narain Habit .

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