KALU MONDAL Vs. BEGUM FAZILATUN NESSA

JUDGEMENT

(1.) These two appeals were heard analogously and are, being disposed of by this judgment. Facts, in short, are that the respondent instituted two separate suits for ejectment of the appellants from the respective suit premises on the ground that they were defaulters. The suits were instituted after serving notice under section 106 of the Transfer of Property Act. It was alleged that the appellant Kalu Mondal was in arrear in payment of rent from February, 1971 to April 1972, and appellant Naushad Ali was in arrear in payment of rent from April 1971 to August 1972. Both the suits were contested by the tenants by filing separate written statement denying the plaint case of default in payment of rent. The tenant's case is, that due to war of liberation he had to quit the suit premises for fear of life and that they returned after the liberation. His further case is, that the premises concerned was damaged by the Pak Army. He repaired the same but the landlord did not pay the expenditure incurred by him and that he was assured by the landlord that the cost incurred by him would be adjusted against rents payable by him. The premises which is the subject-matter in Civil Appeal No. 171 of 1979 is a small panshop; and the promises which is the subject matter in Civil Appeal No. 76 of 1980 is a small cloth shop. The learned SCC Judge accepted the case of the defendant in both the cases that the suit premises were damaged by the Pak Army and these were repaired by the defendants at their own cost which was not adjusted by the landlord. According to the trial Court, the defendant in both the cases "should get the benefit of the abnormal circumstances of the period in question".

(2.) Leave was grated to consider whether in view of the finding of the trial Court section 18(5) of Premises Rent Control Ordinance should be interpreted in the context of the abnormal conditions prevailing in the year 1971, that is, whether the conditions like war of liberation should be read in the statutory provision as exception clause to the sub-section.

(3.) Mr. Golam Rabbani, the learned Advocate appearing for the appellants, submitted that in view of the undisputed position that the war of liberation intervened and the appellants had to leave the premises out of fear of life, and the premises were damaged by the Pak Army and the same were repaired by the appellants and the expenditures incurred by them were not adjusted against rent dues although the landlord had given the assurance that the expenditures would be adjusted, the trial Court was justified in taking the view that the tenants should get the benefit of the abnormal circumstances of the period in question. In support of this contention the learned Advocate placed his reliance upon the observations made in a decision of this Court in the case of Ramjan Ali Mistry Vs. Hedayetullah, 31 DLR (SC) 183. The said decision shows that in construing the language of sub-section (5) of section 18 of the Ordinance the following observation has been made: