1950 Supreme(Cal) 174

HIGH COURT OF CALCUTTA
Harries, Banerjee
SREENARAIN MANSINGKA - Appellant
Versus
AMARNATH MISHRA - Respondent
A. F. O. D.  85  Of  1950
Decided On : SEPTEMBER 6, 1950

The interpretation of the provisions of the West Bengal Premises Rent Control Act, 1948 and the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and their application to the facts of the case.

Headnote:

RENT CONTROL - Sub-letting - Major portion - Deposit - Stay of suit - Relief under Section 18 (5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

Fact of the Case:

The defendant was a monthly tenant under the plaintiff in respect of premises No. 50, Brutal Street Calcutta at a rent of Rs. 240/- per month. The defendant made default in payment of rent from 24th Magh, 1354 B. Section (7th February, 1948) to the end of Baisakh 1355 B. Section (14th May, 1948) amounting to Rs. 766/- for which the plaintiff filed a suit on 19th May, 1948 in the Court of Small Causes, Calcutta being Suit No. 4018 of 1948; the total sum including costs claimed was Rs. 901/9/-. The defendant also failed to pay rent for the months of Jaistha to Aswin, 1355 B. S. (15th May to 17th October, 1948) amounting to Rs. 1,200/-. The West Bengal Premises Rent Control Act of 1948 came into force on December 1, 1949, and it is not disputed that by reason of the increase allowed by the Act, the rent pay-able by the tenant to the landlord from 1st December 1948 (15th Agrahayan 1355 B. Section)' became Rs. 285/- per month. The tenancy was determined by a notice to quit expiring with the month of Chaitra, 1355 B. S. The defendant took out a notice of motion in this suit for moving the Court on June, 20, 1949, for making 'payment through Court' in terms of Section 12 (2) of the Act of 1948. This application was moved ex parte on June 11, 1949, and on that day, ah order was made by this Court without prejudice to the contentions of the plaintiff giving leave to defendant to deposit with the Registrar of this Court (Original Side), the sum of Rs. 2,150/- for arrears of rent with interest thereon and a further sum of Rs. 350/- towards costs in terms of Section 12 (2) of the Act. The defendant filed his written statement on 16th June and on 20th June, 1949, informed the plaintiff's attorney that the deposit had been made.

Finding of the Court:

The learned Judge found issues Nos. l and 2 against the defendant (tenant ). As to issue No. 3, he said that the onus to prove that a major portion of the premises had been sub let was on the plaintiff and he, on the evidence before him, was unable to say that the plaintiff had satisfactorily discharged the onus. On his findings on issues 1 and 2, the learned Judge refused to stay the suit and passed the decree for possession. It is against this decree that this appeal has been preferred.

Issues: 1. Should the suit be stayed under the provisions of Section 12 (2) of the West Bengal Premises Rent Control Act 1948? 2. Is the defendant a defaulter in payment of rent as alleged in paragraphs 6 and 7 of the plaint or at all? 3. Has the defendant without the consent or authority in writing of the plaintiff, sublet a major portion of the premises for more than six consecutive months? 4. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: 1. The Court held that the tenant had sub-let a major portion of the premises within the meaning of the Act and was not entitled to its protection. The Court took into consideration the fact that out of 48 rooms, the tenant had retained only 11 and the rest had been sub-let, and that the sub-tenants had the use of the courtyard, passages, gangways and the terrace in the several floors. 2. The Court held that the deposit made by the tenant was not sufficient to save him from eviction as it did not cover the interest on the amount which the tenant deposited in the Court of Small Causes, Calcutta and which the landlord withdrew. The Court held that the landlord was entitled to interest under sub-section (2) of Section 12 of the Act of 1948 as compensation for his having had to file a suit to recover his legitimate dues. 3. The Court held that the word 'pays' in the expression 'pays through the Court' in sub-section (2) of Section 12 of the Act of 1948 does not mean 'deposits' simpliciter, in Court. The Court held that the tenant is entitled to the protection of the Act if he deposits the amount with the requisite interest and costs which the Court has awarded, and that sum is deposited in Court by the tenant on notice to the landlord within a month from the service of the writ of summons. 4. The Court held that the tenant was not entitled to relief under Section 18 (5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 as he had not complied with the provisions of the Act of 1950 which enables him to ask for the relief to be given and which confers jurisdiction on the Court to grant the relief.

Final Decision: The appeal was dismissed and the decree of the learned Judge was upheld. The respondent was entitled to full costs here and in the Court below.