HARIPROSAD ROY Vs. BABULAL CHAUKHANI

JUDGEMENT

(1.) The petitioner is the owner of a house being No. 24A, Deshpriya Park Road. The opposite party became a monthly tenant of the said house from 1-9-1938. The original rent was Rs. 130 per month, which was subsequently reduced to Rs. 120 per month. It is admitted by the petitioner that the opposite party paid rent at that rate up to December 1941. Thereafter he stopped payment on the plea that he was liable to pay at the rate of Rs. 60 per month as the petitioner had agreed to reduce the rent to that figure with effect from January 1942. The petitioner did not admit that there was such an agreement and claimed rent at the rate of Rs. 120 per month. He sued the opposite party for rent at the rate of Rs. 120 per month for the months of January a February, 1942 in the Court of Small Causes and got a decree. In spite of the fact that the plea of the opposite party that the rent had been reduced from Rs. 120 to Rs. 60 was found to be false plea he did not pay rent for the subsequent months. On 22-8- 1942 the petitioner served on him a notice, to quit purporting to terminate his tenancy as from 1-10-1942. Thereafter he filed his suit for ejectment in the Court of the Munsiff at Alipore on 5-10-1942. That suit included a claim for arrears of rent up to the month of September 1942 and for mesne profits thereafter. At that time the Calcutta House Rent Control Order had not been promulgated. It was promulgated later and came into force in June 1943, when the suit was still pending in the Court of the Munsif. Paragraph 9 of the said order prevented the landlord from ejecting his tenant, so long as the latter paid rent to full extent allowable by the said Order and performed the conditions of his tenancy except on three grounds specified in that paragraph. As the ejectment suit was not based on any one of those specified exceptions, the petitioner made the case that the opposite party could not claim to be protected from ejectment by reason of para. 9 of the said Order as he had neither paid rent to the petitioner as it fell due nor had he deposited the same with the Rent Controller in terms of para. 10 of the said Order. This contention of the petitioner prevailed and the Munsiff passed a decree for ejectment, for arrears of rent and for mesne profits on the rental basis on 23-4-1945. Against that decree the opposite party filed an appeal to the Court of the District Judge, Alipore, which was ultimately transferred to the Court of the Second Additional Subordinate Judge of that place. Shortly after the appeal had been filed the Calcutta Rent Control Order was amended by the addition of a paragraph numbered as pata. 9B. This amendment came into force on 29.8.1945. Sub-para. (3) of the said paragraph gave the tenant, against whom a decree for ejectment had been made before 29-8-1945 on the ground that he had not paid or deposited rent in due time, the right to apply on or before 29-9-1945 to the Court which had passed the decree for vacating the decree and directing the Court to set it aside, if the judgment debtor pays into Court within such time as the Court may order the rent in arrears.

(2.) The opposite party accordingly filed an application on 28-9-1945 before the Muusif who had passed the decree for ejectment for vacating his decree. The appeal against that decree was then pending in the Court of the Second Additional Subordinate Judge. The application under para. 9B of the said Order, however, could not be disposed of by the Munsif before the appeal was heard, because in spite of repeated requisitions by him the records which had been sent up in connection with the appeal were lying in the appellate Court and were not sent up to him. The appeal was dismissed by the learned Sub-ordinate Judge on 13-2-1946. Thereafter, the records arrived before the Munsif who by his order dated 23-4-1946 allowed the application made to him under para. 9B. The decree for ejectment passed by him on 23-4- 1948 was vacated by that order as by that time the opposite party had deposited in Court all the arrears and was still in possession. The decree for costs as made in that decree in favour of the petitioner was varied by disallowing him half the amount of additional court-fees that he had put in respect of the amount decreed for mesne profits. This rule which has been obtained by the plaintiff is directed against the said order. Three points have been urged in support of the rule. They are: (1) that after the appellate Court had passed the decree the Munsif had no jurisdiction to deal with the application made by opposite party under para. 9B of the Rent Control Order; (2) that as the only decree in existence after the appeal had been decided was the decree of the appellate Court, the learned Munsif has set aside what in law did not exist; and (3) that even if the Munsiff's jurisdiction to entertain the application made under para. 9B had continued to exist after the decree of the appellate Court and his decree be taken to be in existence for the purpose of para. 9B of the said Order, the Munsiff had no jurisdiction to set aside the decree so far as it related to costs. At any rate that part of his order is a wrong one. The first two contentions are inter-related and so we would take them up together.

(3.) We have already stated that the decree for ejectment was passed by the Munsif before 29-8-1945 on the ground that the defendant was in arrears when the suit was filed. Sub-para. (3) of para. 9B of the Order has conferred on the tenant judgment-debtor the right to apply for setting aside the decree for ejectment passed against him on or before 29-8-1945 on that ground. It necessarily follows from the language of Clause (b) of that sub-paragraph that the application is to be made to that Court which had passed the decree sought to be set aside. Simply because the appeal by the opposite party (tenant judgment-debtor) had been pending on the date of his application or on 29-9-1945, that being last date for making such an application under that paragraph, it cannot be contended that the opposite party ought to have filed his application in the appellate Court. The appellate Court had not then passed its decree. The only decree in the field at the date of application and which remained in the field up to 29-9-1945 was the decree of the Munsiff and as that decree which was passed before 29-8-1945 was sought to be set aside, the only Court which had the jurisdiction to entertain the application was the Court of the Munsif, and for the same reason the Munsif would have had jurisdiction at least right up to the time when the appellate Court passed its decree. The petitioner's advocate however, contends that even if the jurisdiction of the Munsif continued up to that time, his jurisdiction ceased the moment the appellate Court passed its decree, on the ground the decree of the Munsif would no longer have any existence, it having merged in the appellate Court's decree. For supporting this contention he relied upon a number of decisions of this Court which laid down that general proposition: Chandra Kant V/s. Lakshman Chandra 4 A.I.R. 1917 Cal. 417 and other cases. This contention is sought to be met by the opposite party's advocate in two ways. He firstly submits that in view of Clause (1) of para. 9B of the Order the appellate Court had no jurisdiction to proceed with the appeal after the introduction of that paragraph by the amendment of August 1945. Secondly he submits that having regard to the scope and object of the Order the principle of merger of the decree of the Court of first instance into the decree of the appellate Court is not applicable, and the principle relating to dependent decrees ought to be applied. His second contention is that as soon as the Munsif had set aside his decree for ejectment under para. 9B (3) of the Order the decree of the appellate Court automatically vanished. The first contention of the advocate of the opposite party hinges upon the construction to be put upon the sentence "no decree or order for possession of the house in respect of which such suit or proceeding is pending shall be made by such Court unless," etc occurring in Clause (1) of para. 9B.