LAWS(CAL)-1950-2-26

B.K. BISWAS Vs. PHANINDRA NATH BAGCHI

Decided On February 28, 1950
B.K. Biswas Appellant
V/S
Phanindra Nath Bagchi Respondents

JUDGEMENT

(1.) THIS is a rule against an order passed on the 14 -12 -1948 by a Munsif of Alipur rescinding on certain conditions a decree passed on the 23 -11 -1948 under the Calcutta Rent Ordinance. (Bengal Ordinance No. 5 of 1948 (sic)). The judgment in the suit under the Ordinance shows clearly that it was found that at the date of the suit and at the date of the decree there were no actual arrears of rent. The suit was brought on the 11 -4 -1947 when the provisions of the Ordinance were in force. It was found by the trial Ct, however, that there had been a default in payment of rent on some month that could not fairly clearly be fixed in the sense that the payment had not been made by the 15th of the month. The matter arose out of a question whether the tenant had deposited the rent for March 1946 in due time. It was found that eventually the whole amount of rent had been deposited as shown by the various receipts he produced showing the deposit of rent with the Rent Controller. But the evidence was also sufficient for the Ct to be able to say that at any rate in respect of some month, one month or more, there had been a failure to deposit the rent in due time under the terms of the Ordinance. Accordingly, the tenant was held not to be protected by the terms of the Ordinance and the decree was passed on the 23 -11 -1948. Within a few days of this, the West Bengal Premises Rent Control Act came into force and the tenant applied to take advantage of the provisions of that Act whereupon on the 14th December the learned Munsif rescinded the decree allowing the tenant to deposit the decretal cost and Rs. 3/ - consolidated interest on the arrears by the 17th December. On the 17th December, the amount required was paid and the decree was accordingly rescinded.

(2.) IT will be seen that the learned Munsif treated the provisions of Section 18 as meaning that the decree of the 23rd November was to be treated as passed after the new Act came into force on the 1st December, and accordingly, as there were no arrears to be paid, allowed the tenant to comply with the latter part of Section 12 (1) (b) of the Act which requires that where arrears are already the subject matter of a suit or proceeding, interest should be paid and such costs as the Ct might award. It is arguable of course, on the learned Munsif's own determination, that as there were no arrears, it was not necessary in any view of the matter for him to stipulate for any payment of interest. It would seem that the Rs. 3/ - consolidated interest was taken to be the interest accruing for the delay that may have occurred in paying the rent of some months of the period in question, although it was found that, in fact, by the date of the decree no actual arrears were outstanding.

(3.) IN so far as Section 12 (1) (b) requires payment of interest and costs of the decree, admittedly this provision makes sense in a case of decrees passed before the Act came into force if we apply the theory on which the learned Munsif based his order but if the strict terms of Section 18 are followed as has been done in the cases cited, then the provisions of Section 12 (1) (b) requiring deposit of costs and payment of interest are of course quite meaningless. If we are to assume that the Act was in force by being ante -dated before the date of the decree then there could be by hypothesis no costs or interest under the decree required to be paid by Section 12 (1) (b). There can be no costs of a decree that has not been passed.