Back
1951 Supreme(Cal) 212
HIGH COURT OF CALCUTTA
Harries, G. N. Das, Banerjee
JUGAL KISHORE - Appellant
Versus
SUBH KARAN - Respondent
Civil Rule 1590 Of 1950
Decided On : JULY 30, 1951
C.S.SEN, JAJNESWAR MAJUMDAR, PRAMATHA NATH MITRA, PRATAP CHANDRA CHOUDHARY, Samarendra Krishna Deb, T.K.GHOSH
Rent does not accrue from day to day for the purposes of section 12 (3) of the 1948 Act, and the material date is when rent became payable.
Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT - CHAPTER VII - SECTION 12 (1) (A), 12 (3) - WEST BENGAL PREMISES RENT CONTROL (TEMPORARY PROVISIONS) ACT, 1950 - SECTION 18 (5) - RENT ACCRUES FROM DAY TO DAY - IPSO FACTO DETERMINATION OF TENANCY - RELIEF TO TENANT - SUMMARY OF THE ACT AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT.
Fact of the Case:
The landlord filed a suit for eviction of the tenant under Chapter VII of the Presidency Small Cause Courts Act, alleging that the tenancy had ipso facto determined due to non-payment of rent for 3 consecutive months. The trial court held that the tenancy had determined, but the Special Bench on appeal set aside the judgment and dismissed the suit.
Finding of the Court:
The court held that rent does not accrue from day to day for the purposes of section 12 (3) of the 1948 Act, and the material date is when rent became payable. Therefore, there was default in payment of rent for 3 consecutive months before the demand for possession, and the tenancy had ipso facto determined under section 12 (3) of the 1948 Act.
Issues: 1. Whether rent accrues from day to day for the purposes of section 12 (3) of the 1948 Act? 2. Whether the tenancy had ipso facto determined under section 12 (3) of the 1948 Act?
Ratio Decidendi: 1. The court interpreted section 3 (2) of the 1948 Act, which states that "for the purposes of sub-section (1) the rent shall be deemed to have accrued from day to day," as negating the view that rent will accrue from day to day for other purposes contemplated by the Act. 2. The court also considered the Transfer of Property Act 1882, which lays down that rent is deemed to accrue from day to day only in case of transfer inter vivos and in case of apportionment of liabilities only. 3. The court further referred to English law, which recognized apportionment only in case of interest and not in other cases, and the Apportionment Act 1870, which laid down a general rule of apportionment of liabilities as well as of rights. 4. The court concluded that the expression "any rent which has accrued due after the commencement of the Act" refers to such rent, the payment of which has fallen due, either by agreement of parties or under section 12 (1) (a) of the 1948 Act, after the commencement of the Act.
Final Decision: The court set aside the order of the Special Bench and remitted the case to the trial judge for giving relief to the tenant as provided in section 18 (5) of the 1950 Act, as amended.
( 1 ) THIS Rule was obtained by the landlord (plaintiff) against orders of the Special Bench of the Court of Small Causes, Calcutta dated 29-11-1949 and 28-12-1949.
( 2 ) THE facts may be stated thus: the opposite party was a tenant of a portion of premises No. 203, Chittaranjan Avenue, Calcutta at a rent of Rs. 127/- per month. After service of notice to quit on the opposite party the petitioner instituted proceedings under Chapter VII of the Presidency Small Cause Courts Act for eviction of the opposite party on the allegation that the tenancy had ipso facto determined on account of the latter's failure to pay rent for 3 consecutive months viz. , Mangsir 2005 Sambat year to Magh 2005 Sambat year (corresponding to 17-11-1948 to 13-2-1949 ). The opposite party filed a written statement to the effect that rent was not due for 3 consecutive months and that notice to quit had not been served.
( 3 ) THE suit was heard by Sri B. P. Buxi, learned Judge, 4th Bench. By his preliminary judgment dated 29-11-1949 the learned Judge held that the rent for Mangsir 2005 fell due in Pous 2005 i. e. after the commencement of the 1948 Act and as such the tenant was in default for a period of 3 consecutive months and the tenancy had accordingly ipso facto determined. By his final judgment dated 23. 12. 1949 the learned Judge held that the notice to quit was duly served. In the result the suit was decreed.
( 4 ) THE opposite party filed an appeal, being Appeal No. 217 of 1949.
( 5 ) THE Special Bench which heard the appeal was of opinion that the notice to quit was properly served but there was no default in payment of rent for 3 consecutive months, which had accrued due after the coming into operation of the 1948 Act and as such there was no ipso facto determination of the tenancy.
( 6 ) THE order of the Special Bench dated 16-8-1950 runs as follows:"the appeal be allowed on contest, the judgment of the learned trial Judge be set aside and the appeal be adjourned to 23-8-1950 for determination of the amount payable by the defendant in view of the provisions of section 18 (5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. "
( 7 ) ON the adjournment date, the petitioner who was the respondent in the said appeal did not appear. , The case was taken up on 6-9-1950 by the Special Bench and on the same day an ex parte order was made accepting a deposit made by the opposite party as sufficient and directing that "the appeal be allowed ex parte, the judgment of the trial court be set aside and the suit be dismissed on full satisfaction. "
( 8 ) IT is the propriety of the said orders of the Special Bench passed on appeal which is challenged in this rule.
( 9 ) THE question whether the Rent Control Acts are void of the Constitution and the question whether the expression 'decree for recovery of possession' in section 18 of the 1950 Act includes an order for possession under Chapter VII of the Presidency Small Cause Courts Act, have been decided in 'iswari PRASAD v. N. R. SEN', Civil Revn. Nos. 1369 and 1370 of 1950 (Cal), the judgment wherein was just now delivered.
( 10 ) MR. Ghose learned Counsel for the petitioner has first contended that the view of the Special Bench that there was no ipso facto determination of the tenancy is erroneous in law.
( 11 ) THE proceedings for ejectment were initiated on 8-4-1949.
( 12 ) ADMITTEDLY there was no special agreement as to the date of payment of the monthly rent, as such the rent would be payable by the 15th of the month next following under Section 12 (1) (a) of the 1948 Act, i. e. W. B. Act 38 of 1948.
( 13 ) RENT for the month of Mangsir 2005 would thus be payable by the 15th of Pous 2005 i. e. by 1-1-1950, similarly rent for Pous 2005 would be payable by the 15th of Magh 2005 and the rent for Magh 2005 would be payable by the 15th of Falgoon 2005 i. e. 28-2-1949.
( 14 ) ON the above facts the courts below have differed on the question whether the tenancy
