PULIN BEHARY SHAW Vs. LILA DEY

JUDGEMENT

(1.) The appellant Pulin Behari Shaw, was a monthly tenant under one Amulya Ranjan Dey, brother of the plaintiff respondent, in respect of a shoproom on the groundfloor of premises No. 66/4 (formerly 48) Strand Bank Road at a monthly rent of Rs. 130/3/6. The plaintiff sued the appellant for ejectment on the allegation that she had purchased the interest of her brother and served a notice of attornment and had determined the defendant's tenancy by a notice to quit dated 2-1-1952 17th Pous. 1358 requiring the defendant to vacate on the expiry of the month of Magh. According to the plaintiff the defendant is not entitled to the protection of the Rent Control Act of 1950, because the plaintiff reasonably required the room for her own occupation and also for building a stair ease; she further alleged that the defendant was a defaulter from Chaitra, 1356 up to Kartik, 1357 which disentitled him to the protection under the Act of 1950. The plaintiff's case of reasonable requirement has been disbelieved by all the courts and does not arise for consideration. The only question is whether the defendant was a defaulter an three occasions of two months each within a period of eighteen months. On this point the defence is that the tenancy stood in the name of the plaintiff's brother Amulya Ranjan Dey who had been prosecuting Rent Appeal No. 132 of 1950 in respect of the tenancy in suit as landlord in the court of the Third Judge of the Small Cause Court till the 21-9-1950 when the said appeal was withdrawn by him; consequently the defendant deposited the rent for the entire period in the office of the Rent Controller in the name of the plaintiff's brother Amulya in the bona fide belief that he was entitled to the rent of the said period. The defendant also pleaded that the plaintiff obtained a decree against the defendant for rent for the same period in Rent Suit No. 6592 of 1950 of the Court of the Sixth Judge on 11-12-51 and on 13-12-51 the defendant again deposited the entire amount of rent decreed against him together with all costs. The defence also contained a denial of the receipt of the notice of attornment but on this point the finding is against the defendant.

(2.) The trial court dismissed the suit upon the findings that the defendant was not a defaulter within the meaning of the proviso to Section 14(3) read with Section 12(1) Proviso (i), that the notice to quit had not been proved and that at any rate the plaintiff had waived the notice to quit by accepting rent from Falgun 1358 up to Chaitra 1359 which had been sent by money order by the defendant to the plaintiff. This decision of the trial court was reversed on appeal by a Special Bench of the Court OF Small Causes and the decision of the Special Bench has been affirmed on second appeal by P. N. Mookerjee, J. and against the judgment of P. N. Mookerjee, J. the tenant has brought this appeal under clause 15 of the Letters Patent.

(3.) It is admitted by both sides that the tenant deposited the entire rent from Chaitra 1356 to Kartik 1357 in the office of the Rent Controller; but that deposit has been held to be invalid both by the Special Bench and also by P. N. Mookerjee, J. because the deposit was not in the name of the plaintiff but in the name of her brother, Amulya Ranjan who had sold his interest to the plaintiff and who had also sent a notice of attornment to the tenant. It has been held that after the receipt of the notice of attornment the tenant should have deposited the rent in the name of the assignee and not in the name of the original lessor who is the brother of the assignee and consequently the deposit in the name of the brother was invalid. It is also an admitted fact that on 16-9-50 the plantiff instituted Suit No. 6592 of 1950 of the Court of the 6th Judge of the Court of Small Causes for recovery of arrears of rent from Chaitra 1356 to Aswin 1357 and that suit was decreed on 11-2-51 and the tenant deposited the entire decretal dues with costs on 13-2-51 which were withdrawn by the plaintiff. After depositing the decretal dues the tenant applied to the Rent Controller for withdrawing his deposit when he found that the deposit with the Rent Controller had been withdrawn by the plaintiff's brother Amulya Ranjan De. Mr. Roy appearing for the plaintiff respondent has pointed cut that the finding of the trial court to the effect that Amulya Ranjan had withdrawn the entire deposit with the Rent Controller is not correct. It is pointed out that what appears from the evidence of D. W. 2 Ganesh Ranjan Chowdhury, a clerk of the Rent Control Office is that on 6-2-1952 Amulya Ranjan De withdrew the rents deposited for the months of Bhadra. Aswin and Kartik 1357 in spite of an order of the Registrar dated 20-12-51 to the effect that the rents for those three nonths were not to be withdrawn by Amulya Ranjan. The position therefore is this: the tenant paid the entire rent from Chaitra 1356 to Aswin, 1357 to the assignee under the decree in Suit No. 6592/1960 and he again paid the rents for Bhadra, Aswin and Kartik to the assignor through the Rent Controller"; and in spite of that he is denud to be a defaulter within the meaning of Section 12(1) (i) read with the proviso to Section 14(3). With regard to the deposit under the decree there can be no question that the deposit was beyond time and would not protect the tenant. With regard to the deposit in the office of the Rent Controller it is said to be invalid because it was made in name of a wrong person.