The Judgment of the Court was as follows:

Clough, J.:— This is an application by the Defendant for an order that a consent decree made in this suit on the 27th April, 1945, be set aside. The application is made under paragraph 9, sub-paragraph (3) of the Calcutta House Rent Control Order and is opposed by the Plaintiff who is the owner of premises No. 30B, Jagabandhu Lane; the Defendant was her monthly tenant according to the Bengali Calendar at a rent of Rs. 45 a month.

2. On the 25th January, 1946, the Plaintiff served on the Defendant a notice to quit dated the 22nd January demanding possession at the expiry of the month of Magh, 1351. The Defendant did not vacate.

3. On the 14th February, 1945, this suit was filed claiming possession, arrears of rent and mesne profits.

4. On the 22nd February, 1945, the Defendant entered appearance.

5. On the 1st March, 1945, a summons was taken out by the Plaintiff under Chapter XIIIA of the rules of this Court for summary judgment. That application was opposed: before it was heard, namely, on the 19th March, 1945, the Defendant filed his written statement. When the application came before his Lordship, Mr. Justice Gentle, he allowed the Defendant to defend and made an order for discovery and directed that the suit should appear on the Warning List three weeks thereafter. Ultimately the suit was fixed for hearing on the 27th April, 1945. On the 26th April, 1945, the parties came to terms and on the 27th April a decree was made by consent in accordance with the terms that had been arrived at between them. These terms provided that there would be a decree for ejectment; that there would be a decree for Rs. 526-3 for arrears oi rent from Chaitra, 1350 B.S to Chaitra, 1351 B.S; and that the Plaintiff would be entitled to withdraw from the Controller all rent deposited by the Defendant with him. They further provided that the Defendant would pay to the Plaintiff mesne profits at the rate of Rs. 45 a month from the 1st Bysack, 1352, until possession was given; and finally that the Plaintiff would not execute the decree for ejectment for nine months if the Defendant paid the mesne profits on the 7th of each succeeding month. In default of such payment the Plaintiff would be entitled to execute the decree for ejectment.

6. On the 29th August, 1945, there was introduced by amendment into the Calcutta House; Rent Control Order a new paragraph 9B under which this application is made. The Defendant was still in possession of the premises when this new paragraph came into operation.

7. On the 18th September, 1945, this notice of motion was noted as made. The application is for an order that the decree for recovery oi possession of the house and premises, subject-matter of the suit which was made on 27th April, 1945, be set aside. The contention before me is that the decree made in this case is an instance of the kind of decree mentioned in para. 9B, sub-para, (3) of the House Rent Control Order, namely, a decree for recovery of possession which has been made on the ground that the Defendant is not entitled to the benefit of para. 9 of the House Rent Control Order by reason of his non-compliance with the provisions of the Order as to payment or deposit of rent due by him in respect of the house. Para. 9 of the House Rent Control Order provides as follows:—

“9 (1) No order or decree for the recovery of possession of any house shall be made so long as the tenant pays rent to the full extent allowable by this Order and performs the conditions of the tenancy.”

8. There is a proviso to that sub-paragraph that nothing in it shall apply either (a) where the tenant has done any act contrary to the provisions of certain clauses of Sec. 108 of the Transfer of Property Act, or (b) where the tenant has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers or (c) where, the house is required for the purpose of building or re-building, or for the occupation of the landlord or the occupation of any person for whose benefit the house is held, or, (and this I think is important) where the landlord can show any cause which is deemed satisfactory by the Court.

9. Sub-para. (4) of paragraph 9 is as follows:—

“No tenant shall be entitled to the benefit of this paragraph in respect of any house unless he pays the rent due by him in respect of such house to the full extension allowable toy this Order within the time fixed in the contract with his landlord, or in the absence of such contract, by the 15th day of the month next following that for which rent is payable”.

10. There is no provision in this para. 9 either in sub-para. (I) or in sub-para. (4) for the situation that arises, where the tenant does not pay rent within the time mentioned in sub-para. (4) because the landlord refuses to accept it but deposits the rent with the Controller within the time mentioned in para. 10. In Bithaldas Chamdak v. Lalbehari Dutt(1), Mr. Justice Rankin dealing with the Calcutta Rent Act which was then in force and with provisions which, though they were differently arranged, were similar to paras. 9 and 10 of the Order in force to-day, assumed that where a tenant had deposited within the time limited by Sec. 11 (4) of the Rent Act, he was protected by the provisions of the Act. The question was not directly before the learned Judge in that trial. Similarly in the amendment to the present Order which was promulgated on the 29th August, 1945, it is, I think, assumed that a tenant is protected where although he has not paid rent he has deposited it within the time mentioned in paragraph 10. The provisions of sub-paragraph (3) of paragraph 9B do, I think, plainly imply this. I am not in this case called upon to decide whether the assumption is correct or what is the effect of para. 9B (3) if the position is that, but for its introduction a tenant would not have been protected by a deposit. Before me the substantial question of principle which has been argued is whether a consent decree is within para. 9B (3). Can it be said that a decree made by consent is a decree made on the ground that a tenant is not entitled to the benefit of para. 9 of the Order by reason of non-compliance with the provisions there set out regarding payment of rent? Obviously the fact or belief that the tenant is not entitled to the protection afforded by para. 9 may have been a motive which influenced him in his decision to compromise. It may be it was that circumstance which, so far as the tenant is concerned, induced him to settle; but assuming that it is so, is that consideration which influenced or brought about the Defendant's decision to agree with the Plaintiff and which influenced the Plaintiff's decision to agree with the Defendant and affected the terms conceded—is it the ground on which the decree for possession was made? Are the parties' reasons for agreeing with each other the grounds upon which the consent decree consequent upon the agreement has been made? For myself, I would not have thought so. I would have said that the ground on which the consent decree is made is the fact of consent of the parties coupled with the legal rights of the parties and the duties of the Court which follow upon the consent; that the grounds upon which any decree is made are the matters of fact and law which control and direct the action of the Court, and that in the case of a decree by consent these are quite distinct from the matters of fact and law which impelled the parties to agree with one another. But this question has already been before this Court on three occasions: none of the judgments have yet been reported. They result in a conflict of opinion, and in view of this, I think, it is necessary for me in this judgment to give my reasons for it at a rather greater length than I would have otherwise considered necessary.

11. The new para. 9B introduced by amendment into the Calcutta House Rent Control Order on the 29th August, 1945, provides as follows:— In sub-para, (I)

“that no suit or proceeding by a landlord against a tenant in possession of a house for the eviction of such tenant therefrom in which non-compliance with the provisions of this Order as to payment or deposit of rent by such tenant in respect of house to the full extent allowable by this Order within the time specified in that behalf has been taken as a ground for such eviction shall be entertained by any court or where any such suit or proceeding toy a lnadlord is pending in any court on the 29th August, 1945, no decree or order for the recovery of possession of the house in respect of which such suit or proceeding is pending …………. shall be made by such court on such ground unless the landlord has been permitted by the Controller to institute such suit or proceeding or to prosecute the suit as the ease may be.”

12. Sub-para. (2) refers to the application to the Controller and how the Controller is to act in the circumstances mentioned there. Sub-para. (5) provides as follows:

“Where any decree or order for the recovery of possession of any house has been (made on or before the 29th August, 1945, on the ground that the tenant in possession of such house is not entitled to the benefit of para. 9 toy reason of his non-compliance with the provisions of this Order as to the payment or deposit of rent due by him in respect of such house but the possession of such house has not been recovered from the tenant”.

(b) “the Court by which the decree or order was made shall set aside the decree or order of (i) any application is made in that behalf by the judgment-debtor not later than the said 29th September, 1945,” and if (ii) “the judgment-debtor pays to the decree-holder or deposits in Court within such time as the Court may order the rent in arrears together with the costs of the proceedings as may be determined by the Court.”

13. It has been argued by Counsel on behalf of the tenant that the reference to a decree in sub-para. (5) does not exclude consent decrees; that a consent decree is only one species of the genus decree and that the section therefore pro-vides for the setting aside of decrees made by consent and that such a decree must be set aside in a case where it is established that the reason which actuated the Defendant when he gave his consent was his default either in payment or deposit which he thought had deprived him of the protection afforded by para. 9 of the Cal cutta House Rent Control Order; in other words, that where the decree has been made by consent the Defendant's motive in giving his consent is the ground on which the decree was made as that phrase is used in para. 9B, sub-para (5).

14. He contends that in this particular case the Defendant's motive was default and that he has established this. That the point of principle is not an easy one will appear at once from the fact that on the 27th November, 1945; in Manick Chandra Pal v. Haripado Roy(2), and again on the 3rd December, in Manindra Nath Baner-jee v. Abul Kassim Fazlul Huq(3), his Lordship Mr. Justice Ormond delivered judgments in which he came to the conclusion that a consent decree is within the contemplation of paragraph 9B (3) and must be set aside if the matters referred to are established as the “grounds” on which it was made. Whereas on the 4th December, 1945, his Lordship Mr. Justice Gentle in Parbati Devi v. S.N Sen(4) came to the conclusion that the provisions of para. 9B, sub-para. (5) referred to a decree passed by a Court, after adjudication, upon the ground specified in the Order and that the amendment does not refer to a decree by consent or to anything other than that which it states, namely, a decree passed on the ground that the tenant had not complied with the terms of his tenancy regarding deposit or payment of rent. I ought to observe that in the case before Mr. Justice Gentle he found that there was nothing in the terms of settlement which bore out the statement made in the petition before him that the agreement was made because of the default which was alleged to have been discovered,— namely, default in respect of rent for a particular month, April, 1944. But as I read his judgment, he decided the question of principle quite independently of his view with regard to the facts. His Lordship Mr. Justice Gentle, when he delivered the judgment in the case that I have mentioned, had not, I believe, the advantage which Counsel has afforded me, namely, of reading the two judgments which had been delivered by Ormond, J. In this, and in regard to the whole case, I am greatly indebted to Counsel for both parties for their assistance. With great respect to Ormond, J. and after careful consideration of the reasons advanced by him and of the arguments of the tenant's Counsel, who asks me to come to the same conclusion and for substantially the same reasons that appealed to his Lordship Mr. Justice Ormond, I am not able to do so. I do agree with the conclusion arrived at by Mr. Justice Gentle that the language used in Sec. 9B (3) makes it plain that its provisions relate to a decree passed by the Court after adjudication upon the grounds specified in the Order and do not relate to a decree by consent. The motive which induced the party to come to terms with his adversary cannot, I think, be described as the grounds on which the consent decree is made. Having regard to the provisions of the House Rent Control Order, default in payment of rent can be described as one of the several facts which added together comprise the ground upon which a decree in invitum is made; the others being the facts establishing that the tenancy has determined: but where a decree is made by consent the grounds upon which it is made are in my opinion the factum of agreement of the parties, not the parties' reasons, and the rights of the parties and the duties of the Court which flow from the fact of agreement. For if the agreement is lawful both the parties or even one party against the will of the other can under Or. 23, r. 3 require that it shall be recorded and a decree made in accordance with its terms so far as they refer to the suit. To describe one of the parties or even both the parties' reasons for agreeing as the Court's reason for making the decree is, in my opinion, inaccurate and a misuse of language. The grounds for making the decree are the matters which I have mentioned, and not the parties' reasons for agreeing between themselves. The conclusion I have expressed finds, I think, some support from para. 9B (3) (ii). As I have already mentioned; this provides that it is a condition of setting aside the decree that the judgment-debtor pays to the decree-holder or deposits in Court within such time as the Court may order the rent in arrear. That will cause no difficulty where the suit has been decided on contest for then the factum and quantum of arrears will necessarily have been an issue which was decided in the suit if default was a part of the alleged cause of action. But the case is otherwise where there is a consent decree. It may be impossible to arrive at a figure: for an agreed term of the settlement, if there is one, that a specific figure shall be paid for arrears of rent even assuming that it proves that there are any arrears at all (which itself is an arguable question) proves no more. For the aggregate of the terms agreed to by one party is the consideration for the terms conceded by the other, and no one term proves the previous existence of the liability which that term itself creates. The position with regard to evidence may well have changed by the time the application for setting aside the decree is heard, and even assuming that it is contemplated that the Court is to take oral evidence on the application, the evidence which previously existed, may well have been lost consequent upon and subsequent to the settlement arrived at. These considerations are not of course conclusive but, I think, they have some relevance. It seems to me fallacious to approach the problem in the piecemeal manner I have been asked by the tenant to adopt; namely, to consider whether the word “decree” taken by itself includes a consent decree and to proceed to argue from the premises that it does. What the para. 9B (5) refersto is not a decree simpliciter but a decree which has been made on the ground mentioned in the paragraph, and the qualification specified excludes, in my opinion, the orders by which the agreement of parties is recorded and decrees made in accordance with them.

15. The argument which commended itself to Ormond, J. and which was put forward by the tenant before me was shortly as follows:— The word “decree” used in para. 9B (3) includes a consent decree: by reason of the para. 9 of the Order, the Court has no jurisdiction to make any decree unless there was default with regard to rent, or there exists one of the other circumstances contemplated in the paragraph which deprives the tenant of protection of the Order. It is argued that if there is no evidence of any of the other circumstances, there must have been default with regard to rent, for it will be presumed that the Court did not act unless it had jurisdiction. When, as here, there is a term in the agreement of compromise for payment of arrears of rent any doubt which might otherwise have existed is dispelled and there is not only the presumption but concrete evidence that default with regard to rent was the ground upon which the decree was made. As a part of this argument it is contended that the agreement between the parties is not itself a lawful agreement unless default regarding rent is admitted and is by consent made the ground of the decree; for the parties cannot by consent give the Court jurisdiction where it otherwise does not exist. In my opinion there are unsound links in this chain of reasoning. I have already expressed my view that the word “decree” must be taken in its context and should not be examined as if it stood alone. It is not right to suggest that there is anything unlawful in the party agreeing with the tenant to deliver up possession either forthwith or at a future date. Nothing in the Order prevents the party from making such an agreement either where there is no suit, or where there is a pending suit; and an agreement if made is not unlawful, though it might by reason of the order be unenforceable if the tenant resiled from it and a separate suit was filed. But being lawful if it is made in a suit the Court is bound to record it and make a decree in accordance with it if the application is made under Or. 23, r. 3.

16. The keystone of the argument of the tenant is the argument addressed to the question of jurisdiction. In support of the argument that the Court has no jurisdiction to make the decree for possession with the consent of parties unless there is in existence one of the several circumstances mentioned in para. 9 great reliance is placed by the tenant on the decision in Barton v. Fincham(5) which was decided by the Court of. Appeal in England having regard to the provisions of the Enhancement of Rent and Mortgage (Restrictions) Act, 1920. The provisions of Sec. 5 (a) and (c) of that Act are as follows:—

“No order or judgment for the recovery of possession of any dwelling house to which this Act applies, or for the ejectment of a tenant therefrom, shall be made or given unless (a) any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under this Act) sol far as the same is consistent with the provisions of this Act has been broken or not performed, or (c) that the tenant has given notice to quit, and in consequence of that notice the landlord has contracted to sell Or let the dwelling-house or has taken any other steps as a result of which he would, in the opinion of the court, be seriously prejudiced if he could not obtain possession”.

17. In that case the facts' were that the landlord, anxious to sell the premises, had agreed with the tenant that she would give him notice to quit and would in fact vacate at Michaelmas 1920. The landlord on his part agreed to pay £20 and did so. The tenant gave the notice; but when the date came she refused to vacate and the landlord brought a suit for possession. He relied on the agreement which I have mentioned. There was in that case no question of a consent decree. The suit was contested to the end. The question was whether, where there was a contest before the Court, the Court could in the face of Sec. 5 make a decree in a case where the conditions insisted upon by the section did not exist. They did not in fact exist, for the landlord had failed to give any evidence that he had con-tracted to sell the house or had as a consequence of the notice to quit taken any steps which would seriously prejudice him if he could not obtain possession. It was held in that case that the Court could not, having regard to the provisions of the section, give effect to the agreement of the parties made prior to suit and make a decree; the jurisdiction of the Court to make a decree on contest was what was being considered and it was held that the previous cori-sent could not affect it. Bankes, L.J, does not discuss at all the position which would arise if the parties consented in Court to the decree being made. Scrutton, L.J, expressed an opi-nion at page 298 of the report that if there was a consent in the Court he could see no reason why the Court should not make a decree for possession. His words are:

“If the tenant is willing to go out I do not see any reason why the court on being satisfied that ft tenant is then ready to go out (not that he was once willing but has changed his mind) should not make an order for possession”.

18. As I read them, the observation of Atkin, L.J, at page 299 relied on by the Counsel for the tenant relates to the case before him and when he mentions the powers of the Court in the face of a compromise he is referring to a compromise arrived at between the parties prior to suit and not to a compromise arrived at in the suit. But the language used is capable of two interpretations. What he says at page 299 is:

“Parties cannot by agreement give the courts jurisdiction which the Legislature has enacted they are not to have. The section appears to me to limit definitely the jurisdiction of the courts in making ejectment orders in the case of premises to which the Act applies. The court cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have. If the parties before the court admit that one of the events has happened which gives the court jurisdiction, and there is no reason to) doubt the bona fides of the admission, the court is under no obligation to make further enquiry as to the question of fact: but apart from such an admission the court cannot give effect to an agreement, whether by way of compromise or otherwise, inconsistent with the provisions of the Act.”

19. If Atkin, L.J, was referring to a compromise arrived at in the course of the suit the observations were not strictly necessary for the purpose of deciding the suit then before him. In any event, in my opinion, the decision in Barton v. Fincham has reference to the words of the English Act; it appears to me that the phraseology throughout paragraph 9 indicates an indention that the fetter ton the Courts' jurisdiction exists only in a case when the Court is asked to adjudicate, and where there is a contest between the parties when the time arrives for making a decree or order: But in any event there is proviso (c) in paragraph 9 of the Indian Order. In the English Act of 1920 there was nothing in its Sec. 5 or in any other section which corresponds with the last paragraph of proviso (c), para. 9 of the Indian Order. There had been such a provision in Sec. 1 (3) of the English Increase of Rent and Mortgage Interest Act, 1913, but by 1920 this Act had been re-pealed. If it is indeed correct that under the English Act of 1920 the Court was not competent to make the decree by consent in a suit where the conditions described in Sec. 5 of that Act do not exist I do not think that there is any similar bar to the jurisdiction of the Court in India, for in my view consent itself is sufficient to give jurisdiction. In para. 9 (I) there are four sub-paragraphs which disclose circumstances in which nothing in sub-para. (I) of para. 9 shall apply. Included in proviso (c) is “which the landlord can show any cause which is deemed satisfactory by the Court”. If the landlord can show that the tenant has agreed to go out and has agreed to a decree for possession and is still agreeing, that seems to me to be a cause which the Court would be bound to consider as satisfactory and one which resulted in the provisions of paragraph 9 (J) of the Order being inapplicable. Having regard to the opening words of para. 9 I do not think that it is essential that this particular “cause,” i.e, consent, should have been in existence when the suit was filed. It is sufficient if it is there when the time comes for the Court to exercise its jurisdiction and make a decree or order for possession and in my judgment paragraph 9 A (I) of the Order has no application to that case. As I read paragraph 9, the intention of the promulgating authority when framing that paragraph and giving protection to a tenant, was to give him protection from his landlord and not from himself. When the paragraph says that no decree or order for pos-session may be made, it does not mean that it cannot be made if the parties agree that it shall be made. For myself, I can see no cause for making a decree for possession more satisfactory than that the parties, including the tenant, should have agreed that the tenant shall go out, and that a Court order shall be made to that effect.

20. For these reasons, I think there is nothing in the decision in Barton v. Fincham which should induce me to come to a conclusion other than that which I have arrived at and already mentioned. Gentle, J., came to a conclusion on the issue which is the same as that which I have arrived at and that was after considering Barton v. Fincham. He had, in fact, previously considered not only that case but two other cases also, Rossiter v. Langley(6) and Welles-ley v. White(7), and their application directly on the question of jurisdiction, in a suit Julie Sen v. Surendra Mohan Roy(8), but the facts in that case made it unnecessary for him to express an opinion on the point of law, and he did not do so; nor did the Court of Appeal. In Rossiter v. Langley the Defendant had consented to judgment and it was held under Sec. 5 (2) of the English Rent and Mortgage Interest (Restrictions) Act, 1920 to 1925, that the Court had jurisdiction to vary the order even if made by consent. I would notice that it does not appear from the report that there was there any evidence at all, other than the fact of agreement which mentioned no reason, that any events described in Sec. 5 (I) had happened. The judgment-does not, however, suggest that the County Court Judge was wrong in making the consent decree. Beyond this fact, I do not think that this decision is of any great assistance because the decision was with regard to the words of Sec. 5 (2) of the English Act and the words there used are not parallel to those in the Indian paragraph which has to be considered.

21. Wellesley v. White is a decision on words used in Sec. 5 (3) of the English Act. The consent judgment which was a feature of that case, had been made before the passing of the Act and in my opinion that decision does not really materially advance the argument in this case.

22. For the reasons which I have already expressed, I am of opinion that the decree in this case being by consent, does not and cannot come within the words used in paragraph 9 (B) (3).

23. In the circumstances, the decree made in this suit cannot be set aside and this application must be dismissed. If I am wrong in this conclusion and have to discover the motive of the parties in agreeing and if that motive is the ground upon which the decree is made, then I say this that it seems to me to be established that the Defendant was in default with regard to the tender of rent for the month of Bhadra, 1351 and that there is no evidence of any other fact which attracts any other of the provisos of (a), (b) and (c) of paragraph 9 (I) of the Order, other than that I have already mentioned, namely, that the agreement of the parties was a satisfactory cause within paragraph 9 (I), proviso (c).

24. I hold, further, that if it is necessary to find a “statutory “ground other than consent which gave the Court jurisdiction to make the decree, then default in payment of the rent, and no other, was a statutory ground which existed. I do, however, think that there was a giving and taking between the parties which was an element though a very small one in their settling their differences.

25. For the thirteen months in respect of which the consent decree for rent was made, the amount agreed upon was some Rs. 58-13 less than the rent actually payable for thirteen months at Rs. 45 a month. It is urged that at least Rs. 49-1 of this sum which appears to be a concession made by the landlord, can be accounted for by a deposit of Rs. 20 made by the tenant and certain payments of taxes made by her, and it is suggested also that the small balance of Rs. 9-12 also represents taxes; but as regards this I do not find there is any evidence. In any event, if it were necessary to do so, I would hold that this small consideration of Rs. 58-13 though it discloses some amount of mutual give and take, was not really the ground on which the Defendant consented to a decree being made. In view of the conclusions I have already expressed, it is not, I think, necessary for me to go into this matter in any detail. In the circumstances, this application is dismissed with costs.

26. There will be a stay of execution of the decree so far as it relates to costs, for one month, in order to give the tenant an opportunity of taking such further steps as he may be advised. The stay which I have allowed does not interfere with the Plaintiff's right to execute the decree for costs.

27. There will be a direction that this decree be drawn up with such expedition as is possible.

Solicitors: Be & Saha for the Applicant; B.N Mitra for the Respondent.