A decree for recovery of possession of premises cannot be passed against a tenant who has not made default in payment of rent.

( 1 ) THIS is an appeal by the landlord from an order made by Bachawat J. on May 24, 1950, allowing an application under Section 18 (1) of the West Bengal Premises Rent Control Act, 1950 made by the tenant who is the respondent in this appeal. That section is as follows:"where any decree for recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, but the possession of such ? premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this subsection till the application has been dismissed under sub section (4 ). "

( 2 ) THE facts of the case shortly are these: The plaintiff (landlord) filed a suit for possession of certain rooms in premises No. 21b Canning Street, Calcutta. It was filed on May 13, 1948. The tenant held the rooms as a monthly tenant at a rent of Rs. 34/- per month. In the plaint the plaintiff alleged that the defendant had made default in payment of rent from July 1946 to December 1947 and that on or about November 28, 1946, he filed a suit (being suit No. 4309 of 1946) in the Court of Small Causes, Calcutta, against the tenant for recovery of arrears of rent from July to October, 1946 : the defendant deposited Rs. 136/- in that Court and satisfied the plaintiff's claim in that suit and he also had deposited Rs. 204/- on different dates in the office of the Rent Controller on account of rent from November 1946 to April 1947: that at the date of the institution of the suit there was due by the tenant to the plaintiff on account of rent Rs. 272/- (May 1947 to December 1947 ). He further alleged in the plaint that a notice to quit had been duly served on the defendant on December 13, 1947 and the tenancy had been determined. On these allegations he asked for the reliefs I have stated.

( 3 ) THE tenant filed a written statement on 2nd August, 1948. The West Bengal Premises Rent Control Act of 1948 came into force on December, 1, 1948. At the hearing of the suit which took place on January 30, 1950, Counsel on behalf of the defendant said that the only defence he took was that as he had paid all arrears of rent as contemplated by Section 12 (1) (b) of that Act, no decree could be passed against the tenant. There was no dispute in the case that interest and costs as contemplated by that section of the Act of 1948 had not been paid. The defendant's counsel's argument at the hearing was that only the rent had to be paid within the month, but not interest or costs. He said that costs at the time of the hearing were not assessed or ascertained. So he contended that if the arrears of rent were paid within the time mentioned in Section 12 (1) (b), his client would be entitled to pay interest and costs at any other time and yet would be entitled to get relief. This contention was not accepted by the Court and a decree for possession and mesne profits was made on January 30, 1950. I set out below the following portion from the judgment delivered on that occasion :"in my view the position is shortly this. The tenant must pay all arrears of rent plus interest and costs within the month in terms of Section 12 sub-section 1 (b) or sub-section (2) as the case may be. If the landlord refuses to accept the rent the tenant must deposit the rent as contemplated in sub-section (c) ('sic') or pay it through the Court as provided in Sub-section (2 ). If the tenant does that he will get the protection under the Act. But if he does not, it will be no defence to a suit for ejectment that the tenant has paid the rent within the month but not the interest and the costs. "

( 4 ) A decree was drawn up pursuant to the