The Judgment of the Court was delivered by

Mukharji, J.:— This is a suit for possession of premises No. 3A, Anukul Mukherjee Road, Calcutta, for arrears of rent for the two months of Jaistha and Ashar, 1354 B.S corresponding to 16th May to 17th July, 1947, amounting to Rs. 202 and for mesne profits and other reliefs. The Plaintiff's case is that she is the owner of the said premises and that the Defendant was a monthly tenant under her at a rent of Rs. 101 per month. The Plaintiff gave a notice of ejectment through her solicitors, Messrs. Mitter and Bural, on the 29th May, 1947, calling upon the Defendant to quit and vacate on the expiry of the month of Ashar, 1354 B.S corresponding to the 17th July, 1947. The Plaintiff alleged that the Defendant sub-let the premises without her consent. This suit was filed on the 21st July, 1947.

2. The Defendant filed his written statement admitting the receipt of notice to quit. He also admits sub-letting but states in his written statement that it was a condition of the tenancy that he should sub-let portions of the premises. The Defendant states also that at the time when he took over the said premises as a tenant there were existing sub-tenants on the premises. He claims protection under the Calcutta Rent Ordinance, 1946, and pleads deposit of all rents with the Rent Controller. On behalf of the Defendant the following Issues were raised:—

(1) Was there any agreement as alleged in paragraph 2 of the written statement?

(2) Has the Defendant sub-let the major portion of the said premises for more than six consecutive months without the Plaintiff's consent? Even if so, if such subletting was not for six months from 1st December 1948, can such sub-letting be a ground of ejectment?

(3) Has the Defendant deposited all rents under the Rent Ordinance/Act up to date?

(4) Is the notice to quit bad in law under the new Rent Act?

(5) To what reliefs, if any, is the Plaintiff entitled?

3. The sub-letting in this case was for more than a period of two years and continued on the day when the Rent Act came into operation and was in existence even on the date of the trial.

Issue No. 2.

4. I hold, therefore, on the evidence that the Defendant sub-let the major portion of the said premises for more than six months, without consent in writing of the Plaintiff.

5. It will be proper at this stage to deal with a point of law raised by Mr. J.C Gupta and which is concerned with the interpretation of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. Mr. Gupta has argued, first, that the words “in writing” qualify the word “authority” only and not the word “contract” in sec. 11, Proviso (b) (i) of the Rent Act. On an anxious consideration of this argument I find I cannot accept this construction. In my judgment any contract to sub-let is a kind of authority given to the tenant by the landlord and the words “contract” and “authority” are to be read as ejusdem generis in this section. That is why the word “other” is used in that part of the statute under consideration. If the words “contract” and “authority” were not to be read ejusdem generis then the word “expressly” in my opinion indicates that the Legislature intended that the contract must be expressed. The word “expressly” qualifies also “in writing.” In other words an authority in writing, from which it might follow by implication a permission of sub-letting, will not protect the tenant. The Legislature, therefore, intended to exclude cases of implied as opposed to express permission of sub-letting. If in the case of even an authority in writing the permission has to be expressly stated and not implied I fail to see why an interpretation should be put upon this section so as to mean that a mere oral or verbal contract to sub-let will protect the tenant. There is no sensible reason in being severe on “authority in writing” as proposed to contract to sub-let. No logical principle or interpretation of statute or commonsense can justify such difference being made between a contract and an authority. The absence of the word “authority” in proviso (b) (ii) of that section does not help Mr. Gupta because in that sub-section a prohibition is dealt with and a prohibition is an interdict and can never be regarded as an authority. If Mr. Gupta's argument were to prevail, then it would have meant that while the prohibition on sub-letting has always to be in writing the permission to sub-let by contract could be oral. I see no justification for making such a difference between prohibition and permission. Mr. Gupta has argued on the policy of the Act, contending that the Act was indulgent to sub-letting on the ground of dearth of accommodation in Calcutta and, therefore, the Act required no writing in the contract to sub-let, but the Act did not favour prohibition on sub-letting on the same ground of dearth of accommodation and, therefore, requires the prohibition to be in writing. The policy of the Act is to be gathered from the language used in the different sections read in the light of the object of the Act as set out in the preamble. On such a consideration I cannot accept Mr. Gupta's unqualified and sweeping suggestion that such policy was indulgent to sub-letting in any and every case because if that were so proviso (b) (i) need not have been enacted at all. In my opinion, therefore, the protection of the tenant can only be claimed in case there is a contract in writing expressly permitting sub-letting. There is in this case no such express contract in writing permitting such sub-letting. The contracts in this case were recorded by, the Defendant in writing dated the 22nd March, 1943, and the 29th May, 1947, and the Defendant has not “expressly” or “in writing” said there that the Defendant can sub-let.

6. The next point argued by Mr. Gupta is that the sub-letting for six consecutive months which disentitles the tenant to the protection given by sec. 11 of the Rent Act, 1948, must be sub-letting under the Rent Act, 1948, and, therefore it must be six months' sub-letting since the 1st December, 1948, when the Act came into operation. According to him, no matter for how long more than six months', the tenant may have sub-let prior to 1st December, 1948, all that period of sub-letting even though for more than six months is of no avail as that was not offensive sub-letting under the Rent Act, 1948. As six months have not elapsed since 1st December, 1948, in this case even now the Plaintiff according to Mr. Gupta cannot avail of proviso (b) (i) of sec. 11 of the Act.

7. This argument requires careful consideration and raises a very important question. There are three decisions on somewhat similar point raised under the Calcutta Rent Ordinance, 1946 (Bengal Ordinance V of 1946). The first decision is of Sen, J., on 1st March, 1948, in Atul v. Ganesh(1). There the learned Judge considered “proviso (b) to sec. 12(1) of the Ordinance, 1946, which also disentitles a tenant to the protection under sec. 12 of the Ordinance if he sub-let the premises without the consent in writing of the landlord. In that case the learned Judge interpreted the Calcutta Rent Ordinance and came to the conclusion that sub-letting prior to the Ordinance was also affected, with the result that the tenant lost the immunity conferred by sec. 12 of the Ordinance even though he sub-let prior to the Ordinance. At page 381 the learned Judge notices the well-known principle that the Act should not be given retrospective effect unless the words of the Act expressly or impliedly indicate that such effect is to be given and the Court should construe an Act as having effect only from the date on which it comes into force unless by express words or by necessary implications it is given a retrospective operation. The learned Judge followed the decision of Purushottam v. Mussamat Hawee Bibi(2).

8. The second decision is of Biswas, J., which came a month later on 9th April, 1948, in Gurupada Haldar v. Arjundas(3). That was also a decision under the Calcutta Rent Ordinance, 1946, and the learned Judge came to the conclusion that the tenant who sublet the premises without the consent of the landlord lost the protection given by sec. 12 (1) of the Ordinance and was hit by cl. (b) of the proviso of that section even though the sub-letting was done before the Ordinance came into force. There the sub-letting continued after the Ordinance came into force. In the other case decided by Sen, J., there also the subletting continued after the Ordinance of 1946 had come into force.

9. The third decision is of Clough, J., on the 24th June, 1947, (earliest in point of time but last to be reported) in Sk. Mohammed Omar v. T.B Timms(4). That also was a decision under the Calcutta Rent Ordinance, 1946, and the learned Judge came to the same conclusion as in the other two decisions I have mentioned. In addition to what was stated by Sen, J. and Biswas, J., the learned Judge in this case decided that the question of construction of that section of the Ordinance was not to be approached as if it was one that deprived persons referred to in it, i.e, tenants of any right. The learned Judge also construed and emphasised the word “has” in the expression “has sub-let.”

10. There is one decision under the Rent Act, 1948 of Banerjee, J., in Sm. Santilata Ghosh v. Sk. Ibrahim(4a) to which my attention has been drawn. The learned Judge there has held following the two decisions of Clough, J., and Biswas, J., which I have quoted above and one other unreported decision that the fact of subletting before the Act makes no difference to the tenant. The learned Judge has given no further reasons.

11. The provisions of the Rent Act are not exactly similar to the provisions of the Calcutta Rent Ordinance, 1946 and they are different in two material particulars. First, there is no provision in that Ordinance that subletting has to be for more than six months as under the Rent Act of 1948. Secondly, there was also no provision in Rent Ordinance of 1946, similar to that contained in sec. 13 of the Rent Act. The question, therefore, for determination is whether these two special provisions make any difference and whether the principles laid down in three cases decided by Biswas, J., Sen, J. and Clough, J., under the Calcutta Rent Ordinance, 1946, are applicable to the Rent Act of 1948.

12. Mr. D.K Dey who followed Mr. Gupta in argument on this point has submitted that these two factors do make a difference. According to him, as no period of sub-letting was specified under the Rent Ordinance, 1946, if the sub-letting continued a day after the Ordinance came into force, that was enough to throw out the tenant from the protection of sec. 12 of the Ordinance. He has drawn my particular attention to the observation of Biswas, J., in Gurupada v. Arjundas which are in these terms:—

“It may be that at the inception of the tenancy there was no question of obtaining the consent of the landlord in writing before the tenant could sub-let. All the same the tenancy subsisted at the date of the Ordinance and continued during its currency.”

13. On that ground Mr. Dey distinguished the decisions of Biswas, J., Sen, J. and of Clough J., who held that sub-letting prior to the Ordinance was sufficient to disentitle the tenant to the protection offered by sec. 12 of the Ordinance.

14. In my judgment sec. 11 (1) of the Rent Act should be construed as a whole. Sub-sec. (1) of that section should be construed and read along with the proviso that follows. While sub-sec. (1) says that no order or decree for recovery of possession should be made it also says in the same instance by way of a proviso that this embargo on the making of a decree will not operate in the case where the tenant “has sub-let” for more than six consecutive months without the landlord's consent. In Jennings v. Kelly(5) the House of Lords says that there is no rule that the first or enacting part is to be construed without reference to the proviso. The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest. Viscount Maugham in his speech at p. 219 says: “The principle is equally applicable in the case of different parts of a single section and nonetheless that the latter part is introduced by the words ‘provided that’ or like words. There can, I think be no doubt that the view expressed in Kent's Commentaries on American Law (Cited with approval in Maxwell, 8th Edn., p. 140) is correct. The true principle undoubtedly is, that the sound interpretation and meaning of the statute on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail.

15. The point of time is the time when the decree is going to be made and at that point of time the words “has sub-let” have to be given a meaning. The only consistent, possible and natural meaning will be to look to a period anterior to the point of time when the decree is being made and when once that construction is followed any prior period of six months will necessarily come in. No question of disturbing or affecting vested rights is involved by adopting this interpretation. Prior to the Rent Act, 1948, the tenant had no vested or any right to resist a suit for ejectment after notice to quit under the general law of the Transfer of Property Act on the ground that he has not sub-let for more than six months. Indeed, under the law previous to the Rent Act, 1948, even a day's sub-letting without permission was enough to turn out the tenant of protection under the Ordinance of 1946. Therefore, the consideration of the principle that a statute should not be given a retrospective effect so as to affect vested right (Maxwell Interpretation of Statutes, 9th Edn., pp. 222-23) is inappropriate in such context. In fact the construction which I put on this section and which affects sub-letting prior to 1st December, 1948, does not disturb vested rights and instead of doing violence to the rights of the subject under the general law is in consonance therewith.

16. In my opinion, the question is as to the ambit and scope of the Rent Act and not as to the date from which the new law as enacted by the Act is to be taken to have been the law. Similar considerations and arguments were considered in West v. Gwynne(6) where the question was if sec. 3 of the Conveyancing and Law of Property Act, 1892, engrafting a proviso on all leases containing a covenant against sub-letting without consent of the landlord to the effect that no sum of money shall be payable in respect of such consent, was applicable to leases before the Act. The question arose whether such a provision would apply to a lease executed before the Act came into operation but continued during the currency of the Act when the Act did not use any express language of retrospective operation. At pp. 11 and 12 of that Report Buckley, L.J, says:—

“During the argument the words “retrospective” and “retroactive” have been repeatedly used and the question has been stated whether sec 3 of the Conveyacing Act 1892 is retrospective. To my mind the word “restrospective” is inappropriate and the question is not whether the section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date” the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and, not as to the date from which the new Law as enacted by the Act is to be taken to have been the Law”.

17. If this were not the construction then it will mean suspending the operation of this particular statutory provision for six months from 1st December, 1948, in respect of the ground of sub-letting although the Act says it shall come into operation under sec. 1 (2) of the Act on such date as the Provincial Government may by notification appoint, and the date so appointed is 1st December, 1948. Reading, therefore, sec. 11 (1) of the Rent Act with the provisos that follow and with a view to give effect to the entire section along with the proviso and with a view to avoid suspending operation of the statute and making it applicable in different parts to different points of time, a result which is always, whenever possible, to be avoided, the proper construction in my opinion is to give a meaning to the words “has sub-let” as capable of affecting a period of time anterior to the operation of the Act.

18. The next consideration is whether sec. 13 of the Rent Act makes any difference. It is argued on the basis of this section that the Legislature has made the special provision that where a tenant has sub-let in whole or in part any premises let to him for a period of not less than seven years and such period expires on or after the 1st day of October, 1946, the tenant shall not be entitled to the benefit of sec. 11 of the Act. The date 1st October, 1946, was the date on which the Rent Ordinance of 1946 came into operation. The argument, therefore, is that where the Legislature thought fit to affect sub-letting anterior to the date when the Act came into operation, i.e, 1st December, 1948, it has said so expressly and the only anterior sub-letting which is affected by the Act is, therefore, that class of sub-tenancy which lasted for at least seven years expiring on or after 1st October, 1946, and not any other subletting prior to the Act for a period less than seven years. If a sub-letting for more than six consecutive months prior to the date of coming into operation of the Act was to come within Proviso (b) (i) of sec. 11 then it is argued sec. 13 of the Act is redundant.

19. On a careful consideration of this argument I am unable to accept it. I do not consider that sec. 13 of the Act will be redundant if by Proviso (b) (i) of sec. 11 sub-letting for more than six months prior to 1st December, 1948, is hit. The purpose of sec. 13 is clear enough from the words “notwithstanding any thing contained in this Act.” This, according to my interpretation means that even where the tenant has express permission in writing for sub-letting from his landlord that is no protection for him if he has sub-let for a period not less than seven years expiring on or after 1st October, 1946.

20. The purpose of sec. 13 of the Act is to make a special provision where the sub-tenancy is for not less than seven years and the legislature has thought fit that in such a case a tenant does not need to retain his tenancy and he is deprived of the protection under sec. 11 of the Act. In that case, therefore, the further provision is made which follows from the words of sec. 13 that the sub-tenants with such long duration of not less than seven years will be deemed to be tenants directly under the landlord.

21. In my judgment on a proper construction of sec. 11 and sec. 13 of the Act I am of the opinion that under Proviso (b) (i) of sec. 11 of the Rent Act any period of sub-letting prior to and continuing on or after 1st December, 1948, disentitles a tenant from any protection under sec. 11 (1) of the Act if such sub-letting has been for more than six consecutive months for the whole or a major portion of the premises without a contract in writing expressly permitting such sub-letting.

22. Accordingly, I answer the Issue No. 2 in the affirmative.

Issue No. 5.

23. It follows from my findings on the other Issues that the Plaintiff is entitled to the reliefs he has claimed in the plaint.

24. There will accordingly be judgment for the Plaintiff for possession, for arrears of rent amounting to Rs. 202, for mesne profits as claimed in prayers (a), (b) and (c) of the plaint. The Defendant will pay the costs of the suit to the Plaintiff. Certified for two Counsel. No order is asked for and I make no order in respect of the subtenants.