Ranjit Chandra Chowdhury Vs. Mohitosh
Mukherjee  INSC 84 (17 March 1969)
17/03/1969 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) RAMASWAMI, V.
CITATION: 1969 AIR 1187 1970 SCR (1) 16 1969
SCC (1) 699
West Bengal Premises Rent Control (Temporary
Provisions) Act (17 of 1950), ss. 12(1) and 14(3)Scope of.
West Bengal Premises Tenancy Act (12 of 1956)
s. 24-If retrospective.
The agreement of tenancy between the landlord
and tenant of certain premises provided that the monthly rent was to be paid on
or before the 7th of each month. For the months of September 1954 to April 1955
the rent was paid beyond the agreed date. In August 1955, a notice determining
the tenancy was given but the landlord accepted rent thereafter thus waiving
the notice. In February 1956, a second notice determining the tenancy was
served and a suit for eviction was filed on March 1, 1956, on the basis that,
since the tenant was paying rents beyond the time fixed by contract he was in
default according to s. 12(1) (1) of the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950 by which the proceedings were governed. The
tenant contended that : (1) As the rent was in fact deposited by him with the
Rent Controller for every month within the prescribed date since February 1956,
the suit for recovery of possession of the premises was liable to be dismissed
under s. 14(3) of the Act, -and that the proviso to s. 14(3) under which a
tenant is not entitled to the protection of s. 14(3) if there was default on
three occasions within a period of 18 months, did not apply to him, because, on
the acceptance of rent in September 1955 there was a waiver of the previous
defaults and a revival of the dead tenancy, and therefore, those defaults
should not be counted against him; and (2) s.
24 of the West Bengal Premises Tenancy Act,
1956, which repealed the 1950-Act provided that the acceptance of rent in
respect of the period of default operated as a waiver of the default and
therefore also,, the earlier defaults should not be counted against him.
HELD : (1) In the case of a statutory tenancy
a landlord accepting rent does not assent to a new contractual tenancy but
continues the old tenancy. In fact, the tenant's attitude in the present case
was that the old tenancy was revived and continued. If that were so, the old
tenancy, with the defaults, continued and the landlord was entitled to rely on
s. 12(1) (1) and the proviso to s. 14(3).
Therefore, the benefit under s. 14(3) was not
available to the tenant. [20 E-0] Ganga Dutt Murarka v. Kartik Chandra Das,
A.I.R. 1961 S.C.
1067, Anand Nivas (P) Ltd. v. Anandji
Kalyanjis Pedhi, A.I.R. 1965 S.C. 414 and Calcutta Credit Corpn. Ltd. v.
Happy Homes (P) Ltd.  2 S.C.R. 20,
(2)Section 24 of the 1956 Act puts an embargo
on any claim based on default in payment of rent when the landlord accepts rent
after default. Therefore, it affects the substantive right of the landlord.
Since the section is not made retrospective either expressly or by necessary
implication it will only operate from the date on which it came into force
(March 31, 1956), and hence, the tenant in the present case could rely on it.
[20 G-H; 21 A-B] 17
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 299 of 1966.
Appeal by special leave from the judgment and
decree dated August 14, 1963 of the Calcutta High Court in Appeal from
Appellate Decree No. 1374 of 1960.
B.K. Bhattacharjee, S. C. Majumdar and S. P.
Mitra, for the appellant.
J. P. Mitter and Sukumar Ghose,for the
respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. In
this appeal, by special leave, the appellant is the tenant of a house No. 120B,
Manoharpukur Road, District 24 Parganas, Calcutta-29 and the respondent is the
landlord. Both the tenant and the landlord died after the institution of the
suit and are represented by their legal representatives. The suit was for
ejectment of the tenant for default in payment of rent as agreed to, between
The suit was dismissed by the Munsif, 1st Court,
Alipur, but on appeal the judgment was reversed by the Subordinate Judge, 8th
Court, Alipur whose decree was confirmed on appeal by the learned Single Judge
in the High Court at Calcutta. This appeal is against the judgment dated August
14, 1965 of the Calcutta High Court.
The premises were rented out to the original
tenant as far back as May 1944 on monthly rent of Rs. 130. The tenancy was from
month to. month. According to the landlord the rent of the premises had to be
paid on or before the 7th day of each calendar month. According to the tenant
the rent was to be paid as and when the sarkars came to collect it on behalf of
the landlord who employed such agents as he had many other houses rented out to
other tenants. The High Court and the appellate Court below have accepted the
case of the landlord and that is a finding with which we must start. The
monthly rent for eight months between September 1954 to April 1955 was
admittedly collected and paid beyond the period limited by the agreement. On
August 11, 1955 a notice determining the tenancy was served on the original
tenant and he was asked to quit on the expiry of the month of August, 1955 on
pain of being held liable in damages at Rs. 5 per day for wrongful occupation
from the 1st September, 1955. On October 2, 1955, the original landlord
accepted rent upto September, 1955 and thus waived the notice which was given.
It appears also that the landlord accepted rent from November 1, 1955 to
February 1, 1956 and granted receipts for the rent. On February 9, 1956 a
second notice determining the tenancy was served calling upon the original
tenant 18 to deliver possession of the premises on the expiry of February,
1956. The notice this time also added a condition that in case the original
tenant overstayed in the premises beyond February, he would be liable to
damages. The present suit was filed on March 1, 1956 with the result already
In the written statement filed by the
original tenant it was stated that the original landlord had waived the right
of forfeiture for default upto August, 1955 when he accepted rent for
September, 1955 and 'acquiesced' in the continuance of the tenancy by receiving
rent upto January, 1956. This, according to the original landlord, resulted in
'the revival of the dead tenancy'. The High Court has held that the old tenancy
continued between the parties with all its advantages and weaknesses and that
the original landlord was, therefore, able to take advantage of the old
defaults and base the notice on them.
In this appeal it is contended that after the
landlord accepted the rent for September a new tenancy came into existence and
the old defaults could not therefore be made the foundation of the second
notice to quit. This is opposed by the answering respondent, the legal
representative of the original landlord.
The matter is governed by the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950. It came into force on
March 30, 1950. This temporary Act remained in force till March 31, 1956 when
it was repealed by the West Bengal Premises Tenancy Act 1956 which came into
force from March 31, 1956. However, as the suit had already been filed it
continued to be governed by the repealed Act in view of S. 4 of the new Act
which states :
"that notwithstanding the repeal of the
old Act any proceedings pending on the 31st day of March, 1956 would continue
as -if the said Act had been in force." Under the old Act there was a
protection to tenants against eviction and that was enacted in s. 12 of the old
Act. We are concerned with s. 12 (1) (1) and it reads as follows :
"12(1) Notwithstanding anything to the
contrary in any other Act or law, no order or decree for the recovery of
possession of any premises shall be made by any court in favour of the landlord
against a tenant including a tenant whose lease has expired :
Provided that nothing in the sub-section
shall apply to any suit for decree for such recovery of possession (i)Subject
to the provisions of section 14, where the amount of two months' rent legally
payable by the 19 tenant and due from him is in arrears by not having been paid
within the time fixed by contract, or in the absence of such contract by the
fifteenth day of the month next following that for which the rent is payable or
by not having been validly deposited in accordance with section 19."
Section 14 which is referred to her provided as follows "14 (i) If in a
suit for recovery of possession of any premises from the tenant the landlord
would not ,get a decree for possession but for clause (i) of the proviso to
sub-section (1) of section 12, the Court shall determine the amount of rent
legally payable by the tenant and which is in arrears taking into consideration
any order made under sub-section (4) and effect thereof up to the date of the
order mentioned hereafter, as also the amount of interest on such arrears of
rent calculated at the rate of nine and three- eighths per centum per annum
from the day when the rents became arrears up to such date, together with the
amount of such cost of the suit as is fairly allowable to the plaintiff-
landlord and shall make an order on the tenant for paying the aggregate of the
amounts (specifying in the order such aggregate sum) on or before a date fixed
in the order.
(2)Such date fixed for payment shall be the fifteenth
day from the date of the order excluding the day of the order.
(3)If within the time fixed in the order
under subsection (1 ), the tenant deposits in the court the sum specified in
the said order, the suit, so far as it is a suit for recovery of possession of
the premises, shall be dismissed by the court. In default of such payment the
court shall proceed with the hearing of the suit :
Provided that the tenant shall not be
entitled to the benefit of protection against eviction under this section if he
makes default in payment of the rent referred to in clause (1) of the proviso
to sub-section (1) of section 12 on three occasions within a period of eighteen
months." The tenant claims the benefit of s. 14 but the landlord relies
upon the proviso to sub-section (3) quoted above.
Further the tenant also relies upon s. 24 of
the repealing Act which is to the following effect :
"24. When there is no proceeding pending
in Court for the recovery of possession of the premises, the 20 acceptance of
rent in respect of the period of default in payment of rent by the landlord
from the tenant shall operate as a waiver of such default." Therefore it
is contended that the acceptance of rent in respect of the period of default in
payment of rent under S. 12(1) (1) in September operates as a waiver of the
default under S. 24.
Mr. Bhattacharji on behalf of the tenant
contends that the old tenancy was dead after the notice and on acceptance of
rent a new tenancy came into existence. The other side contends that by the
acceptance of rent, the old tenancy on the old terms continued. Each side has
cited a number of rulings. We do not consider it necessary to refer to these
rulings or to discuss the question. In Ganga Dutt Murarka v. Kartik Chandra Das
and Another(1) and in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and
Others(2) (particularly the first at page 1069) it was held in connection with
a statutory tenancy that a landlord accepting rent does not assent to a new
contractual tenancy but continues the old tenancy. In the Calcutta Credit
Corporation Ltd. & Anr. v. Happy Homes (P) Ltd. (3) , the subject has been
discussed in &-tail. Under s. 113 of the Transfer of Property Act a notice
is waived, by an act on the part of the person giving it showing an intention
to treat the lease as subsisting, provided there is the express or implied
consent of the person to whom it is given. Here the difficulty is solved by the
attitude the tenant took in this case. His case was that the old tenancy
revived and continued. According to him, the landlord acquiesced in having the
old tenancy continued. If we go by the tenant's own case it is obvious that the
old tenancy with the default continued and the landlord was thus able to use
the provisions of s. 12 (1) (i) against the tenant as also the proviso to
sub-s. (3) of s. 14 of the repealed Act. There were two consecutive defaults
and in the period of 18 months there were more than three defaults. The benefit
of s. 14 sub-s. (1) of the repealed Act is not available to the tenant because
of the operation of the proviso to sub-s. (3). Further s. 24 of the new Act can
hardly assist the tenant. That section is not retrospective and will operate
from the date on which it came into force. Mr. Bhattacharji claimed that it may
be taken as a rule of decision or laying down a rule of evidence but we think
it impinges upon the substantive rights of landlord and tenants which can only
be claimed after the commencement of the Act and not before.
The section puts an embargo on any claim based
on default in payment of rent when the landlord accepts rent after default and
therefore it affects the substantive right of the landlords. According to the
accepted can- (1) A. I. R. 1961 S. C. 1067.
(2) A. 1. R. 1965 S. C. 414.
(3)  2 S. C. R. 20.
21 ons of interpretation of statutes, a
substantive right cannot be taken away retrospectively unless the law expressly
so states or there is a clear intendment. There are no express words in the
statute making s. 24 retrospective and we fail to see any intendment in it to
apply to cases pending on March 31, 1956 when the new Act came into force, and
this suit was then pending. If it had been merely a matter of procedure or
creating a rule of decision we might have held that the provisions applied to
the suit, but that is not the case here. As we said the section creates a
change in the substantive rights and therefore must be held to be prospective
in operation and not retrospective unless we can gather retrospectively from
the language of the statute or by clear implication in it.
There is no question in this case that the
tenant was in de- fault according to s. 12 (1) (1) because he had been paying
rents beyond the period limited by the agreement or by the section. These
defaults were also more than three and therefore the proviso to s. 14(3)
deprived the tenant of the benefit of s. 14(1). On the whole, therefore, the
decision of the High Court was correct and we see no reason to differ from it.
The appeal therefore fails and is dismissed
but in view of the fact that the rent of the premises has been paid upto the
date of hearing and the previous defaults were only so far that the rent was
not paid before the date fixed for payment, we are of opinion that the parties
in this case should be left to bear their own costs throughout. The tenant is
further granted six months' time from the date of this judgment to vacate the
premises. The tenant further undertakes to deposit the rent as and when it
V.P.S. Appeal dismissed.