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Sarat Chandra Dutta And Ors. v. Sm. Ushangini Dassi
Structured Summary of the Opinion (Sen, J.)
Factual and Procedural Background
This is a suit in ejectment. The central factual and procedural points admitted in the record are:
- The Defendant was a monthly tenant of the Plaintiff at a rent of Rs. 40 per month, the tenancy following Bengali calendar months.
- The Plaintiff served the Defendant with a notice to quit terminating the tenancy from the last day of Jaista, 1350 B.S (corresponding to 15th June, 1943).
- On the Defendant's refusal to vacate, the Plaintiff filed this ejectment suit on 26th June, 1943.
- The rent for the months of Baisakh and Jaistha, 1350 B.S (15th April—15th June, 1943) was in arrears. Before suit the Plaintiff appropriated Rs. 80 (out of a Rs. 120 deposit representing three months' rent) towards these arrears.
- After suit, the Defendant tendered Rs. 40 for the month of Asar, but the Plaintiff refused to accept it on the ground that he had terminated the tenancy.
- The legal question raised is whether the Defendant is entitled to the protection of the Calcutta House Rent Control Order, 1943 (specifically paragraph 9), given the appropriation of deposit and the events before and after suit.
Legal Issues Presented
- Whether the Defendant (tenant) is entitled to the protection of paragraph 9 of the Calcutta House Rent Control Order, 1943, given that the Plaintiff had appropriated Rs. 80 from the security deposit before the suit, resulting in no rent being due on the date of suit.
- Whether the Plaintiff's appropriation of part of the security deposit during the continuance of the tenancy constituted a breach of a term of the tenancy (namely the obligation to keep Rs. 120 in deposit) thereby disentitling the Defendant from Rent Control protection.
- Whether a court deciding an ejectment suit may take into account events occurring after the filing of the plaint (specifically non-payment of rent after suit) when determining entitlement to protection under the Rent Control Order.
- How paragraph 9 of the Rent Control Order should be interpreted: whether its present-tense phrasing requires the tenant to have paid rent up to the date of decree or only to have complied up to the date of the filing of the suit.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff conceded that under the law as it stood prior to the Rent Control Order the Defendant would have been liable to eviction, but he argued that even if the appropriation of deposit is treated as payment, the Defendant had breached a term of the tenancy by diminishing the required Rs. 120 deposit and so was not entitled to Rent Control protection.
- The Plaintiff contended that when he appropriated Rs. 80 towards arrears, the tenant was obliged to replenish the deposit immediately to maintain it at Rs. 120; failing which she breached the tenancy term.
- The Plaintiff further argued that, because the Defendant failed to pay rent after the suit was filed, the court should consider subsequent events (up to the time of decree) and refuse the defendant the benefit of the Rent Control Order. In support of taking subsequent events into account to avoid multiplicity of litigation, the Plaintiff relied on several cases.
Defendant's Arguments
- The Defendant contended that she was protected by paragraph 9 of the Rent Control Order because, on the date of the suit, no rent was due: the Plaintiff had already appropriated Rs. 80 from the deposit to meet arrears.
- Counsel for the Defendant admitted there was an agreement that Rs. 120 was to be kept as security deposit but denied any obligation on the tenant to reimburse the landlord for any diminution of the deposit caused by the landlord's appropriation during the tenancy.
- The Defendant relied on the written receipt (the parties' written terms) which, according to her counsel and the text of the receipt, stipulated that the deposit "will be appropriated towards rent or damages in lieu of rent after vacant possession of the said premises would be given back on determination of her tenancy," indicating appropriation was to occur after determination and vacant possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nuri Mian v. Ambica Singh, I.L.R. 44 Cal. 47 (1916) | Cited for the proposition that in some cases to avoid multiplicity of actions subsequent facts may be taken into consideration by the Court. | The Court distinguished this case: it held that Nuri Mian does not support giving a Plaintiff a decree where there was no cause of action at the time of suit merely because a cause of action arose subsequently. The Court emphasized that a plaintiff must have the right both at the time of the suit and at the time of passing the decree if the right is to be enforced. |
| Rai Charan Mandal v. Biswa Nath Mandal, 20 C.L.J. 107 (1914) | Cited by Plaintiff (specific rule not detailed in the opinion text other than that it was relied upon). | The Court observed that this case "in fact adopts a view opposed to that propounded by learned Counsel for the Plaintiff," and thus it did not support the Plaintiff's argument for considering subsequent events as giving retrospective effect to a new cause of action. |
| Priyambada Debee v. Bholanath Basu, I.L.R. 60 Cal. 685 (1932) | Cited for the general statement that a Court should take notice of subsequent events to shorten litigation. | The Court noted this case merely supports taking subsequent events into account to shorten litigation but does not say that a plaintiff who had no cause of action at the time of suit may succeed on a subsequently arisen cause of action which was not the basis of the plaint. |
| Ismail Dada Bhamani v. Bai Zutukhabai, I.L.R. [1944] Bom. 361 at 371 | Cited for the interpretation of the present tense in paragraph 9-type language — that compliance is to be judged with reference to conduct up to the time of filing the suit. | The Court relied on this decision to support its interpretation that paragraph 9's present-tense phrasing refers to conduct entitling a tenant to plead the Rent Control Order at the time the suit was instituted, not to events occurring after institution up to the decree. |
Court's Reasoning and Analysis
The Court's analysis proceeded in distinct steps, each tied closely to the facts and the written terms of the deposit receipt:
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Interpretation of the written receipt and parties' bargain.
The Court held that the parties could not go behind the clear written terms of the receipt. The receipt stated that the Rs. 120 security deposit "will be appropriated towards rent or damages in lieu of rent after vacant possession of the said premises would be given back on determination of her tenancy." The Court took the receipt literally: nothing in the receipt imposed on the tenant an obligation to replenish the deposit if the landlord appropriated part of it during the tenancy.
Therefore, if the Plaintiff appropriated part of the deposit towards arrears before vacant possession, he did so contrary to the clear terms and "at his own risk and responsibility." Such an appropriation could not, without further proof of agreement by the tenant, impose on the tenant a duty to replenish the deposit. On this basis the Court found no breach by the Defendant of any deposit-related term of the tenancy and accepted that there were no arrears of rent on the date of the suit, because the landlord had appropriated Rs. 80 before suit.
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Whether subsequent default (after suit) can be considered in deciding this suit.
The Court held that a suit in ejectment must be decided on the cause of action as stated in the plaint — that is, based on the state of facts at the time of filing. If a tenant's subsequent act during the pendency of the suit gives the landlord a fresh cause of action (for example, non-payment after suit), that act may furnish grounds for another suit founded on that later cause of action, but the effect cannot be made to relate back to the date of institution of the earlier suit.
The Court acknowledged that there are recognized exceptions where subsequent facts may be taken into account to avoid multiplicity of litigation, but it distinguished the cases relied on by the Plaintiff and found they did not support granting a decree in a suit where the plaintiff had no cause of action at the time of filing. The Court emphasized the distinction between refusing a decree where a right has been lost during pendency, and granting a decree where no cause of action existed at the outset.
-
Interpretation of paragraph 9 of the Rent Control Order.
The Plaintiff argued that paragraph 9's present-tense phrasing required the tenant to have paid rent up to the date of decree. The Court rejected this, reasoning that reading paragraph 9 as requiring proof of payment up to the date of decree would introduce unmanageable practical difficulties in every suit (uncertainty as to pleadings, discovery, etc.).
Instead, the Court interpreted the present tense in paragraph 9 as describing the conduct of the tenant which entitles him to plead the Rent Control Order — i.e., compliance up to or at the time the suit was filed. The Court found support for this view in Ismail Dada Bhamani v. Bai Zutukhabai. Accordingly, if the tenant complied with paragraph 9 at the time the suit was instituted, the tenant is entitled to protection under that paragraph.
-
Application to the present case and conclusion.
Applying the above reasoning to the admitted facts and to the written receipt, the Court concluded that the Defendant had satisfied the requirements of paragraph 9 at the time of institution because there were no rent arrears on that date (the Plaintiff had appropriated part of the deposit before suit). The Plaintiff's contentions based on an alleged breach of the deposit term and based on post-suit defaults therefore failed.
Holding and Implications
Holding: The Court dismissed the plaintiff's ejectment suit. The opinion states that "the suit must therefore be dismissed with costs including reserved costs."
Implications:
- The direct effect is that the Defendant (tenant) is entitled to the protection of paragraph 9 of the Calcutta House Rent Control Order, 1943, on the facts as they stood at the time the suit was instituted, and the Plaintiff's claim for possession fails.
- The Plaintiff is ordered to pay costs, including reserved costs, as stated in the judgment.
- The Court clarified that for an ejectment suit the relevant facts to determine entitlement under the Rent Control Order are those existing at the time of institution (subject to limited exceptions), and that subsequent events giving rise to a new cause of action cannot be retroactively applied to defeat a tenant's protection in the pending suit. The Court did not purport to lay down a novel or far-reaching precedent beyond the application of these principles to the specific facts of the case.
Solicitors recorded in the opinion: N.C. Mondal & Co. for the Plaintiff; P.L. Mullick & Co. for the Defendant.
Sen, J.:— This is a suit in ejectment and the only question is whether the Defendant is entitled to the benefit of the Calcutta House Rent Control Order, 1943.
2. The following facts are now admitted. The Defendant is a monthly tenant under the Plaintiff at a rental of Rs. 40 per month, the tenancy being in accordance with the Bengali calendar months. The Plaintiff served her with a notice to quit terminating the tenancy from the last day of Jaista, 1350 B.S (corresponding to 15th June, 1943) and on her refusing to comply with the terms of the notice he filed this suit on June 26th, 1943. The rent for the months of Baisack and Jaistha, 1350 B.S (corresponding to 15th April—15th June, 1943) was in arrears and the Plaintiff before suit appropriated the sum of Rs. 80 towards the rent for these months out of a deposit of Rs. 120 representing three month's rent which the Defendant had kept with the Plaintiff. After suit the Defendant tendered the Plaintiff the sum of Rs. 40 representing the rent for the month of Asar but the Plaintiff refused to accept it as he had terminated the tenancy.
3. Under the law as it stood before the Rent Control Order there can be no doubt that the Defendant was liable to eviction. This is now conceded; but the Defendant contends that she is protected by paragraph 9 of the Rent Control Order as no rent was due from her on the date of suit, the Plaintiff having appropriated Rs. 80 for the rent of Baisakh and Jaistha before suit.
4. On behalf of the Plaintiff it is contended that it such appropriation be equivalent to payment of rent the Defendant would still be liable to eviction because she has not carried out one of the terms of the tenancy, viz., that she would keep in deposit with the Plaintiff Rs. 120 until vacant possession was given on the termination of the tenancy. By the appropriation the deposit was diminished to Rs. 40 and the term was therefore broken. The next defence taken is that after suit the Defendant did not pay any rent and therefore she cannot claim the benefit of the Rent Control Order. The argument was that in disposing of a suit for ejectment the Court was bound to enquire whether on the date of passing the order all rent due till that date had been paid or deposited with the Rent Controller and that if this had not been done the Court should refuse to give the tenant the benefit of the Rent Control Order. The Court in deciding such a suit was not restricted to a consideration of the state of facts existing at the time of the filing of the plaint but was required to go into facts which occurred after that date.
5. In disposing of the first line of argument what must be ascertained are the terms of the deposit. The Plaintiff has examined himself and he says that the agreement was that 3 month's rent was always to be in deposit till the relationship of landlord and tenant was determined. The contention on his behalf is that if any amount of the deposit was appropriated for arrears of rent it was incumbent on the Defendant immediately to pay back that sum and to keep the deposit up to the amount of Rs. 120.
6. The Defendant has not examined any witness. Counsel on her behalf admits that there was an agreement that Rs. 120 was to be kept in deposit, but he denies any obligation on the part of his client to reimburse the Plaintiff if he appropriated any part of the deposit towards arrears of rent. He refers to an affidavit sworn by the Plaintiff in other proceedings in connection with this suit. There the Plaintiff, in giving the terms of the tenancy, referred to the deposit and said that the terms were that “a sum equivalent to three month's rent would be kept with the Plaintiffs as security deposit for the due fulfilment of the [Defendant's obligations as tenant.”
7. Learned Counsel points out that nothing was said there about any obligation on the part of the tenant to make up the deficiency in the deposit caused by any appropriation made by the landlord towards arrears of rent.
8. The terms regarding the deposit were reduced to writing in a receipt granted by the Plaintiff to the Defendant. The receipt is as follows:
“Received from Sreemutty Ushangini Dassi the sum of Rs. 120 (Rupees One hundred and twenty only) as a security deposit for letting out to her premises No. 135, Manicktola Street, Calcutta, at a rental of Rs. 40 (Rupees Forty only) per month with effect (from Baisakh 1343 B.S The said security deposit will be appropriated towards rent or damages in lieu of rent after vacant possession of the said premises would foe given back on determination of her tenancy.
Sd. Sarat Chandra Dutt.
Sd. Satish Chandra Dutt.
Sd. Probodh Chandra Dutt.
Dated 13th April, 1936.
34, Fakir Chakravarty Lane, Calcutta.
One anna.”
9. I am of opinion that the parties cannot go behind the terms mentioned in the receipt. Nothing is said here about any obligation on the part of the Defendant to pay back as deposit any diminution caused by appropriation by the landlord. The receipt nowhere says that the landlord may appropriate any portion of the deposit during the continuance of the tenancy for arrears of rent and that the tenant would have to replenish the deposit; it says that the appropriation for arrears was to be made after vacant possession was given after the determination of the tenancy. The terms are somewhat curious but nevertheless the parties are bound by them. If, therefore, the Plaintiff appropriated a portion of the deposit towards arrears of rent prior to vacant possession being given he did it at his own risk and responsibility and cannot be heard to say that the tenant was bound to reimburse him unless he proves that the tenant agreed to do so at some time or other. If rent fell into arrears the landlord could have sued for it or he could have terminated the tenancy and sued for possession and after obtaining possession he could have appropriated the deposit or a sufficient part of it towards arrears of rent. In the present case he did not proceed in accordance with the terms of the deposit. He appropriated part of the deposit towards arrears of rent during the continuance of the tenancy. By this action he could not impose a liability upon the Defendant to replenish the deposit—a liability which was not imposed by the terms of the tenancy or by any subsequent agreement. There has, therefore, been no breach on the part of the Defendant of any term of the ten ancy regarding the deposit. There was also no arrears of rent due on the date of the suit as before that date the landlord appropriated part of the deposit towards the arrears of rent. The first line of the Plaintiff's argument therefore fails.
10. I am of opinion that the second line must likewise fail. On the date of this suit, on the facts stated in the plaint, the landlord was not entitled to get possession of the premises. It is argued that as the tenant failed to pay rent after suit she was liable to be ejected. I am unable to accept this argument. A suit in ejectment like any other suit must be decided on the cause of action stated in the plaint. If a subsequent act on the part of the tenant gives the landlord a right to eject such act would furnish grounds for another suit based on a fresh cause of action arising on the date of the act. The effect of the act cannot relate back to the date of the institution of a suit which was not based on the cause of action arising from such act.
11. Learned Counsel for the Plaintiff argued that though, as a general rule, a suit must be decided on the state of facts existing at the time of the filing of the suit, nevertheless, there are exceptions to the rule and that to prevent multiplicity of litigation subsequent facts may be taken into consideration. The present case he argued is of such a nature. He referred to the case of Nuri Mian v. Ambica Singh . I.L.R 44 Cal. 47 1916. in support of his view. In my opinion this case is clearly distinguishable. Here the Plaintiff sued to enforce his right of pre-emption. It was held that if at the time of passing the decree this right had ceased to exist the suit should be dismissed because the Plaintiff has to establish not only that the right existed at the time of the suit but also at the time of the passing of the decree. Mookerjee, J., at p. 55 of the report makes certain observations to the effect that in certain cases to avoid multiplicity of actions subsequent facts must be taken notice of by the Court. He has nowhere said, however, that when a right sought to be established by a Plaintiff does not exist at the time of his suit he can get a decree enforcing such right by reason of subsequent events. On the contrary it is expressly stated that the Plaintiff in order to succeed must show that he had the right at the time of suit and also at the time that the decree was about to be passed. It is one thing to say that a decree may be refused to a Plaintiff who has lost his right during the pendency of a suit but quite another to say that a Plaintiff who had no cause of action at the time he instituted his suit should be given a decree in that suit because subsequent facts have given rise to a cause of action. The case of Rai Charan Mandal v. Biswa Nath Mandal . 20 C.L.J 107 1914. was also relied on. This case in fact adopts a view opposed to that propounded by learned Counsel for the Plaintiff. Another case relied on by learned Counsel is Priyambada Debee… v. Bholanath Basu…Opposite Party. . I.L.R 60 Cal. 685 1932.. This case says no more than this, viz., that a Court should take notice of subsequent events to shorten litigation but it nowhere says that if no cause of action exists at the time of suit the Plaintiff may nevertheless succeed on a cause of action which has arisen subsequently and which was not the basis of the suit as framed in the plaint. There is in my opinion no substance in this argument urged on behalf of the Plaintiff.
12. Next it was argued that the phraseology of paragraph 9 of the Rent Control Order indicates that if after the suit rent fell into arrears a decree for ejectment would be granted even if there were no arrears at the time of suit. Paragraph 9 is as follows:
“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 etc”
13. Mr. Banerjee for the Plaintiff contends that the tenant in order to save himself from ejectment must show that he has paid rent up to the date on which the decree is about to be passed. He bases his argument on the use of the present tense in describing the duties of the tenant. I cannot accept this view. To do so would be to introduce serious difficulties in the trial of every suit. How is the Court to know what the cases of the parties are without pleadings of any sort? How is the Defendant to know what case the Plaintiff is going to make regarding default in payment? When are documents to be discovered if such be the law? In my opinion the present tense in this paragraph is used not to describe anything that the tenant does or may do at the time when the Court's order is made but to describe the conduct of the tenant which entitles him to plead the Rent Control Order, i.e, the conduct of the tenant up to or at the time the suit was filed. I am supported in this view by the decision in Ismail Dada Bhamani v. Bai Zutukhabai . I.L.R [1944] Bom. 361 at 371.. In my opinion if the tenant can show that he has complied with the requirements of paragraph 9 at the time when the suit was instituted he is entitled to its protection.
14. In the present case the tenant has shown this and the suit must therefore be dismissed with costs including reserved costs.
Solicitors: N.C Mondal & Co. for the Plaintiff; P.L Mullick & Co. for the Defendant.
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