A consent decree obtained under Section 18 (1) of the West Bengal Premises Rent Control Act of 1950 is liable to be set aside if it is ascertained from the decree or the proceedings in the suit that the decree was made on the ground of default in payment of arrears of rent.

( 1 ) THIS Rule was obtained by the plaintiff in a proceeding for recovery of possession under Section 41, Presidency Small Cause Courts Act against the order of the Registrar of the Small Cause Court by which he set aside a consent decree obtained by the plaintiff under Section 18 (1), West Bengal Premises Rent Control (Temporary Provisions) Act of 1950.

( 2 ) THE facts which are material for the purposes of this Rule are undisputed and may be stated as follows: The plaintiff started the present proceeding against the opposite party for recovery of possession of a portion of premises No. 59, Ahireetola of which the opposite party was a tenant at a monthly rent of Rs. 23/ -. On 23-5-1949, the said proceeding terminated in a compromise decree made by the Registrar under which the opposite party undertook to vacate the premises. The date of delivery of possession was extended by consent to 24-4-1950. On 31-3-1950, the West Bengal Premises Rent Control Act of 1950 came into operation and on 18-4-1950, the opposite party filed an application for vacating the consent decree under Section 18 (1) of the said Act, and the application was allowed by the Registrar by an order dated 10-6-1950. Against this order the petitioner obtained the present Rule.

( 3 ) MR. Sanyal appearing in support of the Rule has argued that Section 18 (1), West Bengal Premises Rent Control Act of 1950 does not apply to a consent decree which on the face of it does not show that it was obtained on the ground of default in payment of arrears of rent and in support of this contention he has relied upon the decision of this Court in the case of -- 'manik Chandra Pal v. Haripada Roy', 52 Cal WN 230. This was a decision under para. 9b (3), Calcutta House Rent Control Order of 1943 the language of which is somewhat similar to the language of Section 18 (1), West Bengal Premises Rent Control Act of 1950. In that case it was held that if the consent decree for ejectment on the face of it showed that the decree was consented to on the ground that the tenant was not entitled to the protection of the House Rent Control Order on account of default in payment of rent, the consent decree was liable to be set aside under para 9b (3), Calcutta House Rent Control Order, but if there was nothing in the pleadings or in the decree to show that the decree was made on any such ground the consent decree was not liable to be set aside. At p. 235 of the Report Mookerjee J. who delivered the judgment of the Court made the following observations:"it is not however necessary for purposes of the present case to decide as to whether or not para. 9b (3) excludes consent decrees altogether. We will assume for our present purpose that a consent decree does come within the purview of this paragraph. "then his Lordship examines the terms of the compromise and also the proceedings in the suit and comes to the conclusion that there was nothing either in the petition of compromise or in the proceedings to show that the decree was made on the ground of default in payment of arrears of rent and on that finding came to the conclusion that the case did not satisfy the requirements of para. 9b (3) of the Calcutta House Rent Control Order. In the plaint which was filed in the case before us there is a distinct allegation that there was an 'ipso facto' determination of the tenancy as the tenant was in arrears from the 1st Baisakh. The consent decree which was passed on such a plaint may, in our opinion, be held to have been made on the ground of default in payment of arrears of rent. In the case of -- 'md. Ekramal Haque v. Rebati Bhusan', 53 Cal WN 859 Biswas and G. N. Das JJ. held that if the consent decree or the proceeding in the suit showed that the real ground on which the landlord sought eviction was non-payment of rent by the tenant, the consent decree was liable to be set aside under para, 9b (3), Calcutta House Rent Control Order. Mr. Sanyal has argued that there is a di