KESHAB CHANDRA SARKAR Vs. HEMENLAL GUPTA

JUDGEMENT

(1.) THIS is a defendant's appeal in a suit for ejectment instituted by the landlord on service of a notice to quit and on the allegation that the defendant was not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. because he had committed three defaults of two months each within a period of eighteen months. The default alleged in the plaint was from the month of July 1947. In the plaint, the plaintiff did not state the exact period of default upon which he relied but based his claim upon an allegation that the default started from the month of July 1947. 'the tenancy was held by the appellant at a monthly rent of Rs. 14/ -.

(2.) THE defence set up by the defendant was that he was entitled to deduct a certain amount which he had spent for repairs of the holding under an agreement with the landlord. This defence has not been believed by the court of appeal below and Mr. Das Gupta, appearing for the appellant, has not also challenged the finding on that point. The appellate court, however, has found that the default which disentitled the defendant from claiming any relief under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1960, is default in payment of rent from the month of July 1947 upto the month of January 1948. The suit was instituted on the 11th September 1950. The West Bengal Premises Rent Control Temporary Provisions) Act, 1950, came into operation on the 30th of March, 1950. The entire period of default, therefore, is before the Act of 1950 came into operation and the question that has been argued before us is whether the landlord is entitled to rely upon a pre -Act default for the purpose of invoking the aid of section 12 (1) (i) read with section 14 (3) proviso of the Act of 1950.

(3.) THERE is no dispute between the [parties that the suit having been instituted on September 11, 1950, is to be governed by the provisions of the Rent Control Act of 1950 which was in force on that date and both the courts below have decided the case on that footing. The question, therefore, is whether the tenant has lost the protection of that Act on the ground of default under section 12 (1) (i) read with the proviso to section 14 (3 ). The learned Munsif who tried the suit held in favour of the tenant on a strange ground. He held that whatever might have been the position with regard to payment of rent prior to March, 1950, there was no doubt that the tenant made valid deposits in the office of the Rent Controller from March, 1950 and the landlord must be deemed to have accepted those deposits and to have waived his right to eject the defendant on the ground of his previous default. This view has been rightly reversed by the lower appellate court, according to which, however, the default in payment of rent for seven months from July, 1947 to January, 1948 attracts the operation of the proviso to section 14 (3) of the Act of 1950 and precludes the tenant from claiming the protection of the Act of 1950. It is the legality of this view that is challenged before us.