1. This is a Reference to a Full Bench by Mitter and Guha JJ. of a question arising under the West 'Bengal Premises Rent Control (Temporary Provisions) Act 1950, on which they found themselves in disagreement with the view taken earlier by another Division Bench. As the question arose in a Civil Revision Case, the entire case has been referred, as required by the Appellate Side Rules.
2. The material facts are as follows. The opposite party, Nagendra Bala Choudhurani, is the owner of premises No. 134 Rash Behari Avenue, Calcutta and the first floor of that building is in the occupation of a body called the South India Club which holds the same as a tenant. On 23-3-1950, Nagendra Bala filed a suit against the Club for ejectment on the ground that she required possession of the premises for the purpose of building a second floor and also on the ground that the members of the Club had made several unauthorised constructions and had also been misusing the premises in various ways. It was not alleged that the rent was in arrear. The Rent Act in force at the time was the Act of 1948 which continued to be in force till 31-3-1950 when it was repealed by the Act of 19S0 and the latter Act itself came into force on the same day. The Club entered appearance in the suit on 24-4-1950 and after obtaining some adjournments, filed its written statement on 21st June. Before that, however, on 8-6-1950, the plaintiff Nagendra Bala had made an application under Section 14 (4) of the Act of 1950, praying for an order on the defendant . to pay the arrears of rent which she alleged had fallen duo since April, 1950 and also to go on paying the rent thereafter month by month. That application was disposed of on 23-8-1950 by a consent order according to which the defendant was to pay the rent month by month within the statutory period, commencing with the rent for August. It appears that the rent for the previous months had already been deposited with the Rent Controller. Thereafter on 7-2-1951, the plaintiff made an application for striking out the defence on the allegation that the defendant had committed default. By an order dated 16-3-1951, the learned 4th Additional Subordinate Judge of Ali-pore held that the Defendant had defaulted more than once and directed the defence to be struck out. Against that order this Court was moved and the present Rule taken out.
3. I may pause here for a moment to point out that although the defendant in the suit is the South India Club and the written statement has been filed by the Club in its own name, the petitioner in the present Rule is one T. S. R. Sarma. It is true that he describes himself as a Joint General Secretary of the Club and purports to be making the petition on the Club's behalf, but it is difficult to see how he could do so consistently with the plea taken in the written statement that the Club was not an incorporated body and therefore could not be, or be treated, as a tenant. As however, a tenant, under the definition contained in the Rent Act, is a 'person' and 'person' as] defined in the Bengal General Clauses Act, includes an 'association or body of individuals, whether incorporated or not', we shall treat the petition as made by the Club itself. On any other view, the petition would be liable to be thrown out at once as a petition made by a stranger to the suit, because there is nothing to show that Sarma is even a member of the Club.
4. It was contended before the Division Bench that the Court below had been wrong in striking out the defence under Section14 (4) of the Act of 1950, because that Act had no application to suits instituted when the Act of 1948 was in force, as the present suit was. The learned Judges accepted that contention as sound. They referred to the ordinary rule that as to all matters of substantive right, a suit was to be tried in 'accordance with the law as it stood at the date of its institution, unless some new law came to apply to it either by virtue of an express provision or by necessary intendment. According to the learned Judges, a defendant's right to be heard in his defence was not a matter of mere procedure, but was a substantive right and they found no express provision or necessary intendment in the Act of 1950 which made it applicable to suits instituted before its commencement. It was further pointed out by the learned Judges that by reason of the provisions of Section 8(c), Bengal General Clauses Act, the repeal of the Act of 1948 could not affect any rights acquired or accrued under it, unless a different intention appeared and since they found no such intention, they held that the accrued right of the defendant to be heard in its defence in the suit brought against it under the Act of 1948 remained unaffected by the repeal of that Act.
Even if the suit was treated as brought under the Transfer of Property Act, the Defendant, the learned Judges thought, could not be deprived of its normal right of being heard in its defence by the provisions of the Act of 1950, enacted during the pendency of the suit, in the absence of an express provision or necessary intendment that those provisions would apply even to pending litigation. While taking the above view, the learned Judges were unable to give effect to it, because the very same point had been decided in a contrary sense by Sen J., and Clmnder J., in Jyotindra Nath v. Sourindra Nath, 55 Cal. W. N.
123. They accordingly referred the following questions for determination by a Full Bench:
(a) Whether Section 14 (4) West Bengal Premises Bent Control (Temporary Provisions) Act, 1950, is applicable to a suit for ejectment, instituted when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 was in force, but which was pending when the Act of 1950 ( i. e. West Bengal Act XVII of 1950) came into force;
(b) Whether the "decision of the above question in Jyotindra Nath v. Sourihdra Nath, 55 Cal. W. N. 123 was correct.
Before taking up the questions referred, it is necessary to clear the ground pi an apparent difficulty in the way of the defendant. It has already been stated that on an application under Section14 (4) made by the plaintiff on 8-6-1950, the defendant submitted to a consent order on 23rd August. That order, besides that it was a consent order, had become final before the present Rule was applied for on 9-4-1951. It is thus clear that if the order of 23-8-1950 could be construed as an order under Section 14 (4), it could not be open to the defendant to contend on 9-4-1951, while moving against a subsequent order under Section14 (4), that the Subsection did not apply to the suit. But it appears that the order of 23-8-1950 did not contain any provision that in case of default in the payment of rent, the defence would be struck out. It cannot therefore be said that by submitting to the consent order, the defendant had accepted the position that Section 14 (4) applied to the suit.
5. In my opinion, the real point for decision is only whether Section 14 (4) of the Act of 1950 applies to a suit for ejectment which was pending at the date when the section came into force. The fact that the suit was instituted when the Act of 1948 was in operation is wholly immaterial. The right of the defendant to file a defence and to have it considered was not given by that Act, but is a right under the general law. If, instead of being brought during the currency of the Act of 1948, the suit had been brought earlier, the position would have been exactly the same and no different considerations would apply. With great respect to the learned referring Judges, it appears to me that in so far as they relied on a right accrued or acquired, under the Act of 1948, left unaffected by the repeal of that Act, they were mistaken.
6 The position, as I see it, is this: At the date when a. 14 (4) came into force, there was a suit already instituted and pending. At the date of the institution of that suit, the law was that the defendant was entitled to file his defence and have that defence considered on the merits and that right was not circumscribed by any such limitations as Section 14 (4) subsequently introduced. The question therefore is whether the section would apply to the pending suit as well so as to alter the defendant's position and impose on his right of defence, conditions not in existence at the time the suit was filed and when the right accrued. There can be no doubt that if the change made by the section was one of mere procedure, it would apply even to pending suits, unless it excluded 1952 Cal/111 & 112 itself from such suits by its own language. On the other hand, if the change affected a substantive right, the section would not apply to pending suit?, unless a clear intention that it should apply appeared from express words or followed from the necessary intendment of the Act or the section.
7. Those principles which have now become commonplaces of the law of retrospective operation of statutes were not disputed at the Bar. The only questions therefore are whether the right of defence is a substantive right and if it is, whether the Legislature has expressed an intention that Section 14 (4) should operate so as to affect and abridge that right even in respect of suits pending at its passing.
8. In my opinion, it is beyond question that the right of the defendant in a suit to have his defence considered by the Court is a substantive right. It is a part of the rule of natural justice that a man shall be heard before an order is made against him and it is protected by the procedural codes except that in certain very special cases, certain limitations are imposed on it. Even in the ease of administrative or domestic tribunals, the superior Courts enforce this right by means of writs. It is now authoritatively established that even a right of appeal is a substantive right. "To deprive a suitor in a pending action,." observed Lord Macnaghten in Colonial Sugar Refining Co. Ltd. v. Irving, (1905) A. C. 369, "of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure." In the view that a right of appeal is a substantive right, the Privy Council held in the case cited that in the absence of clear words or a necessary implication, a new law could not operate on a pending action so as to take away a right of appeal in existence at the time the law was enacted or even to transfer the appeal to a new tribunal.
Conversely, they held in the Delhi Cloth & General Mills Co. Ltd. v. Income-tax Commissioner, Delhi, 54 Ind. App. 421 (P. C.), that in the absence of an intention similarly expressed, a new law creating a right of appeal could not apply to orders passed before the law came into force so as to affect the finality of such orders and the existing right of the successful parties thereunder. The intermediate case of abridging an existing right of appeal by attaching conditions to it is covered by a Full Bench decision of this Court.
In Sadar Ali v. Doliuddin Ostagar, 32 Cal. W. N. 1130 (F. B.), it was held by a Full Bench that the amendment of Clause 15 of the Letters Patent of this Court by which it was enacted that no appeal would lie from a judgment of one Judge of this Court in exercise of the appellate jurisdiction, except with the leave of the Judge, could not apply to appeals arising out of suits instituted before the date when the amendment came into force and could not affect the right of appeal as of right, already accrued and existing. The reason, as given by Rankin C. J., was that "rights of appeal are not matters of procedure" and that a party's right to enter the superior Court at the date of the suit even before the decision of the inferior Court was given. If the right of a party, who has suffered an adverse decision, to have the case re-heard by a Court of appeal is a substantive right, it is, in my view, impossible to contend that the right of a defendant before a Court of first instance to have his defence considered by the Court is a lesser right and a matter of mere procedure.
9. On behalf of the plaintiff it was contended by Mr. Roy Choudhury that the right to be heard in defence could not be a substantive right, because it was not absolute seeing that the Legislature could attach conditions to is, as is done in the case of suits on negotiable instruments by Order 37, Rule 2 (2) of the Civil Procedure Code and in the ease of rent suits in respect of agricultural lands, by Section 148 (i), Bengal Tenancy Act. In the former case, the defendant cannot appear or defend without leave of the Court and in the latter case he cannot file a written statement without such leave. It was also contended by Mr. Roy Choudhury that even if the defendant did not file a written statement, he could still require the plaintiff to prove his case and the formal filing of a written statement was therefore mere procedure.
10. The first argument of Mr. Roy Choudhury is obviously based on a misconception because, in the first place, the fact that the legislature can curtail a certain right does not establish that the right is not a substantive one and, in the second place, the question is not whether the legislature could curtail the right of defence at all, but whether it was done so in the present case with retrospective effect. Within its own legislative sphere, a legislature can create, curtail or abolish any right, whether substantive or procedural and both prospectively and retrospectively. Whether a particular right is substantive or not, cannot therefore be judged by whether the legislature can curtail it. In the case of the two provisions referred to by Mr. Roy Choudhury, the legislature has abridged the right of defence and in any suit brought after the enactment of those provisions, the defendant's right of defence will be a right so abridged, because before the suit was brought, the law as to the right of defence had already been modified and it stood at what those provisions provided. But where at the date of the institution of the suit the right of defence was unqualified and limitations were imposed on it only during the pendency of the suit, the question whether the change would apply to the defendant in that suit so as to affect his right, already in existence at the date of the change, is a different question altogether and must be determined by the principles I have already mentioned. The first argument of Mr. Roy Choudhury is therefore pointless.
Nor is the second argument of any greater-merit, because it is impossible for a defendant, who has a defence, to put his whole case before the Court in the course of requiring the plaintiff to prove his own. If, for example, the defendant. in a suit for enactment wished to raise a plea that the notice served on him was not legally valid or sufficient or was not the notice proved or that the suit was not properly constituted or that there had been a special contract between the plaintiff and himself, such pleas could not possibly be raised, at least fully and satisfactorily, by merely putting the plaintiff to proof of his case. The reason given by Mr. Roy Choudhury in support of his contention that the filing of a defence is mere procedure is thus unsubstantial.
11. The next question is whether Section 14 (4) of the Act of 1950 is retrospective, either by reason of an express provision to that effect or by necessary intendment. The question of express provision may be taken up first.
12. Relevant to that question, there are two provisions one in the principal Act of 1950, as amended, and another in the Amendment Act, to which the attention of the learned referring Judges was apparently not called and the second of which was not referred to even in the course of the argument before us. Although neither of the provisions applies to the present suit, it is necessary to refer to them and consider their effect, because the first question has been framed in general terms. The provision contained in the principal Act itself is Section 18 (s) which provides that if at the date when the Act comes into force, a suit for ejectment is pending, whether in a Court of first instance or in appeal, and the suit is such that no decree for ejectment would be passed in it "except on the ground that the interest of the tenant has been ipso facto determined under the provisions of Sub-Section (3) of Section 12" of the Act of 1948.
"The Court shall exercise the powers of granting relief against ejectment given by 8. 14 of this Act, following the provisions and procedure of that section as far as may be necessary."
The provision contained in the amending Act (42 of 1950) is Section 5 which reads as follows :
"5. In all applications made under Sub-Section (1) of Section 18 of the said Act, which are pending at the commencement of this Act and in all suits referred to in Sub-Section (5) of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied."
13. The 'said Act' referred to in Section 5 quoted above is the principal Act of 1950. As has been seen, Section 18 (5) of that Act deals with pending suits for ejectment, but not all such suits, the section being limited to suits in which no decree for ejectment would be passed but for the reason that the interest of the tenant had been ipso facto determined under Section 12 (3) of the Act of 1948, that is to say, but for the reason that the tenant had defaulted in the payment of rent for three consecutive months. Section 5 of the Amendment Act mentions only suits referred to in Section 18 (5), principal Act and is therefore similarly limited.
Prima facie, it would seem that as respects suits the former section adds something to the latter, because unless it did, there would seem to be no reason for enacting it, since both the sections deal with the same kind of suits. The language of Section 5 of the Amendment Act also suggests a wider intention, since the section makes "the said Act as amended by this Act" applicable to suits referred to Section 18 (5) which, were pending at the commencement of the Amendment Act. The effect of the two sections would therefore seem to be that if a suit for ejectment against a tenant who had been a defaulter for three consecutive months was pending at the date of the commencement of the principal Act, the Court would have to exercise in such suit the powers given by Section 14 for the purpose of giving relief to the tenant, but if such suit was also pending at the commencement of the Amendment Act, the whole of the principal Act as amended by the Amendment Act, would apply to such suit. But it was held in the case of United Commercial Press Ltd. v. Satya Narain, 56 Cal. W. N. 346, for reasons which appear to me to be cogent, that despite its comprehensive language, Section 5 of the Amendment Act should be construed as meaning no more than that the amendments made by the Act shall apply to suits referred to in Section 18 (5) of the principal Act which might be pending at the date of the amendment. Why, if such be its meaning, Section 5, so far as it deals with suits, should have been enacted at all, it is impossible to see and the only explanation one can think of is the stock explanation for all prolix and tautologous legislation viz. it was enacted by way of abundant caution. However, it seems to me that if the whole object of the Amendment Act is not to be defeated and endless complications not allowed to arise, the limited meaning ascribed to Section 5 by the Division Bench ought to be accepted as the true meaning. On that meaning, Section 5 of the Amendment Act does not require any separate treatment from Section 18 (5) of the principal Act. I would add that even on a literal construction of Section 5 only makes the whole of the amended Act as it is, and therefore Section 14, as it is, applicable to the kind of suits contemplated, but if Section 14 (4), on its own construction, does not apply to those suits, Section 5 of the Amendment Act does not obviously make it apply.
14. Section 18 (5) of the principal Act must, however, be considered and it must be seen whether at least to the limited class of suits contemplated by it, the section makes Section 14 (4) applicable. Whatever the conclusion may be, it would equally apply to such suits, if they were pending also at the date of the Amendment Act.
15. The terms of the section have already been quoted. They do not provide that Section 14 or 14 (4), as such, shall apply, but only that the Court shall exercise the powers of granting relief against ejectment given by Section 14 and, to that end, shall follow the provisions and procedure of the section as far as may be necessary. That language, far from providing that Section 14 shall apply to pending suits of the kind contemplated, makes it perfectly clear that the section shall not in terms apply, but the Court shall have to follow the principles of the section. Even so, Section 14 (4) is not attracted, because the Court'is enjoined by Section 18 (5) only to exercise the powers of granting relief against ejectment given by Section 14, while Sub-Section (4) of the section does not contain any provision for granting relief but, on the other hand, provides for the imposition of a liability on the tenant and for striking out his defence if the liability is not discharged as directed. Indeed the words by which the reference to Section 14 are qualified suggest positively that the onerous parts of the section are not to be applied. In any event, since we are dealing at present only with the question of express provision, it is enough to say that there is no express provision in Section 18 (5) that Section 14 (4) shall apply to any suit pending at the commencement of the Act of 1950.
16. Outside Section 14 (4) itself, there is thus no express provision either in Section 18 (5) of the main Act or in Section 5 of the Amendment Act. The next enquiry must therefore be whether there is anything in Section 14 (4) which makes it applicable to pending suits by its own language.
17. In order to ascertain the true meaning of Section 14 (4), it is necessary to read it along with the preceding sub-sections. The marginal note to the section is "When the tenant can get the benefit of protection against eviction", but the section itself provides for protection not in respect of all suits for eviction but only in respect of suits of one particular type. Sub-Section (1) with which the section begins is clearly limited to suits in which "the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-Section (1) of Section 12", that is to say, suits in which the only ground which disentitles the defendant from the protection of the Act is that he has defaulted in the payment of rent for two months. Suits in which the protection of the Act may be unavailable to the tenant on any of the other grounds mentioned in cls. (a) to (h) of Section 12 (1) or on any of those grounds in addition to the ground of default, are not within the ambit of Section 14 (1).
But in respect of suits in which the tenant cannot claim the protection of the Act solely for the reason that he has been a defaulter, Section 14 gives him a special protection and Sub-Section (1) proceeds to lay down that, in such suits, the Court shall determine the amount legally payable by the tenant as rent and make an order for the payment of such amount, together with interest and the amount of the costs awarded, by a certain date. The amount payable as rent is to be determined by taking into consideration any order made under Sub-Section (4) and the effect of such order. Subsection (2) of the section provides what the date fixed for payment shall be and Sub-Section (3) provides that if the tenant pays the sum specified within the time fixed, the suit, so far as it is a suit for ejectment, shall be dismissed, but if he fails to pay, the hearing of the suit shall proceed. Subsections (1) to (3) thus give a last chance to a defaulter tenant to avert ejectment by paying up all rents due, but there is an exception contained in a proviso to Sub-Section (3) which lays down that the last chance shall not be available to a tenant if he has committed default of the nature mentioned in Section 12 (1) (i) on more than three occasions within eighteen months. Then comes Sub-Section (4) which requires to be set out in extenso. So far as material, it reads thus:
(4) If the tenant contests the suit, as regards the claim for ejctment, the plaintiff-landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any, and on the failure of the tenant to deposit the rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.
18. The sub-section begins with the phrase 'if the tenant contests the suit'. The use of the definite article 'the' before the word 'suit' indicates, to my mind, that the sub-section is dealing with the same suit as has been dealt with in the previous sub-sections and is making a further provision as respects that suit. In the case of Jyotindra Nath v. Sourindra Nath, 55 Cal W. N. 123, Sen and Chunder JJ., declined to hold that such was the effect of the use of the article 'the'. Their Lordships thought that the article had been used because of the following words, "as regards claim for ejectment", meaning perhaps that a particular part of the suit had been marked off, but I am entirely unable to see how those words could make the use of the article before the word 'suit' necessary or appropriate in the absence of some earlier provision indicating what the type of suit contemplated was. If there had been an earlier provision, stating that the type of suit contemplated was a suit in which various reliefs, including ejectment, were prayed for, it would be appropriate to use the article 'the' before the word 'suit' in order to point to that type of suit and then to specify the scope of the contest by the words 'as regards claim for ejectment', next following. But if Sub-Section (4) does not refer back to Sub-Section (1), as their Lordships held, the nature of the suit contemplated by it must be found within the sub-section itself and, in that view, the use of the article 'the' before the word 'suit' becomes perfectly meaningless. There is nothing in Sub-Section (4) itself to indicate what type of suit it is dealing with. In my opiaion, the use of the article 'the' is a clear indicalion that the type of suit contemplated by Sub-Section (4) is the same as contemplated by Sub-Section (1) for, on no other basis can a meaning be given to the words 'the suit'.
Another reason given by the learned Judges in Jyotindra Nath Mitra's case for not holding that Sub-Section (4) is limited to the same kind of suit as contemplated by Sub-Section (1) is that the former sub-section clearly contemplates suits in which there are claims other than the claim for ejectment. With great respect, I cannot see that the circumstance relied on distinguishes the suits contemplated by Sub-Section (4), because Sub-Section (1) also does not exclude suits in which there may be other claims. There cannot be any doubt that Sub-Section (3) at least deals with the same suit as dealt with by Sub-Section (1) and since Sub-Section (3) says that the suit shall be dismissed 'so far as it is a suit for recovery of possession of the premises', it clearly contemplates a suit in which other reliefs also may have been claimed.
The last ground relied on by the learned Judges in Jyotindra Nath Mitra's case in support of their view is that Sub-Section (4) speaks of an order for deposit of "arrears of rent, if any" and they observe that in the suit contemplated by Sub-Section (1), wherein the defendant is a defaulter, there must necessarily be arrears and therefore the use of the words 'if any' in Sub-Section (4) indicates that the sub-section is not limited to the type of suit contemplated by Sub-Section (1). With great respect, I am again unable to agree with the learned Judges. Sub-section (1), it is true, contemplates a defendant who is unable to plead the Act and resist ejectment for the reason contained in Clause (i) of the proviso to Section12 (1), that is, for the reason that he has committed default in respect of the payment of rent for two months, but Clause (i) of the proviso does not require that the tenant should continue to be a defaulter upto the date of the suit. If for two months, the tenant has failed to pay or deposit the rent within the time mentioned in Clause (i), he has committed default and if he has, the bar contained in clause arises and remains, irrespective of whether he subsequently pays up the arrears or not. It is thus not correct to say that in every suit to which Clause (i) of the proviso to Section 12 (1) applies and therefore in every suit contemplated by Section 14 (1), rent must necessarily be in arrear at the date of the suit. Again, even assuming that there must be arrears at the date of the suit, such arrears may subsequently be paid up or deposited before an order under Section 14 (4) is made. An order under the sub-section can be applied for and made "at any stage of the suit." It is thus clear that the presence of the words 'if any' in Section 14 (4) does not involve that the sub-section must cover suits other than suits contemplated by Sub-Section (1).
19. It was contended in the present case that even assuming that Sub-Section (4) of Section 14 referred back to Sub-Section (1), it did so only to a limited extent and the reference was to 'a suit for recovery of possession of any premises' but not also to the qualification that the suit must be one in which "the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-Section (1) of Section 12." It was pointed out that the marginal note to the section was perfectly general and spoke broadly of 'protection against eviction.'
I am entirely unable to accept the construction suggested. Grammatically and as a matter of language, it does not seem to me to be admissible, because Sub-Section (1) is not speaking of suits for ejectment in general at all, but speaking of what order must be passed for the benefit of the tenant in one particular type of suit. The words 'suit for recovery of possession of any premises' is only a part of the description of the suit in respect of which a special relief is provided for the tenant and the remaining part cannot possibly be ignored in ascertaining what particular type of suit is contemplated. If Sub-Section (4) refers back to Sub-Section (1) for the specification of the type of suit with which it is dealing, it can, in my view, refer only to the type with which Sub-Section (1) itself is concerned. The same conclusion is suggested by the obvious interconnection between the several sub-sections. The provisions made in sub section. (1) to (3) are clearly continuous and made in respect of the same suit and Sub-Section (4) also is not independent but only makes provision for a special order to be made at an intermediate stage of such a suit, if asked for by the plaintiff. The last sub-section is connected with the first, not only by the words 'the suit,' but also by express mention in Sub-Section (1) which says that the rent payable by the tenant must be determined, 'taking into consideration any order made under Sub-Section (4).' In my opinion, Sub-Section (4) cannot be held to refer back only to a part of Sub-Section (1). I cannot see that the marginal note to the section assists the contention of the plaintiff for, even assuming that reference to the marginal note is legitimate, it leads nowhere. Its general language cannot prevail over the clear words of sub sections. (1) to (3) and as for Sub-Section (4), it does not apply at all, because that sub-section does not provide for any protection against eviction but, on the other hand, imposes a liability on the tenant to pay up current and arrears of rent before judgment.
20. In my opinion, by its own language Sub-Section (4) applies only to the type of suit contemplated by Sub-Section (1) and being so limited, it cannot apply to suits pending at the commencement of the Act of 1950. The suit contemplated by Sub-Section (1) is a suit in which the tenant cannot claim protection from eviction under Section 12 (1) of the Act of 1950 because of the reason mentioned in Clause (i) of the proviso, but since the protection and the exception are both creatures of the Act of 1950, the suit must be one brought after the commencement of the Act. To a suit brought when the Act of 1948 was in force, the disability mentioned in Clause (i) of the proviso to Section 12 (1) of the Act of 1950 could not be relevant and there could be no question of a decree for ejectment being permissible because of the existence of that disability. I am accordingly of opinion that not only are there no express words in Section 14, making Sub-Section (4) applicable to pending suits, but also that there is express provision to the contrary in Sub-Section (1).
21. Mr. Roy Chough attempted some comparison between the Acts of 1948 and 1950 and so far as I could understand him, wanted to argue that Section 14 of the new Act. was only a variant of the Section 12 (2) of the old. Whether he was relying on that comparison in aid of his argument that the change made by the later Act was one of mere procedure or was suggesting that the practical identity of the provisions indicated that the new provision was intended to apply to suits brought at the time of the old Act, was not clear to me. In any event, while Sub-Sections (1), (2) and (3) of the new Section 14 can be said to correspond roughly to the old Section 12 (2), Sub-Section (4) is entirely new and affects vitally a substantive right of the defendant.
22. Passing now to the question of a necessary intendment, it was not argued that any intendment was to be found in Section 14 (4) itself that it should apply to pending suits. Mr. Roy Chowdhury addressed to us an argument of a wide scope and contended that the whole of the Act of 1950 was intended to apply to all pendirig suits. The argument was that the Act of 1948 was a temporary statute and on its expiry on 31-3-1950, all proceedings commenced under it and pending would automatically lapse, unless the Legislature intervened to save them. The Legislature passed the Act of 1950 and brought it into force on the very day on which the Act of 1948 was due to expire and it was contended that it ought therefore to be presumed that the Legislature intended the Act of 1950 to apply to pending suits. It could not have intended that suits brought under the Act of 1948 should all lapse.
23. I do not think it necessary to consider in this case whether or not the whole Act of 1950 was intended to apply to suits pending at its commencement. But I may point out that Mr. Roy Choudhury was not right in contending that on the expiry of the temporary Act of 1948, all proceedings commenced during its time would automatically lapse. As a matter of fact, the Act of 1948 did not expire but was repealed. That, however, makes little difference, because even assuming that repeal of a temporary Act has no different effect from the repeal of a permanent statute, the effect under Section 8(e), Bengal General Clauses Act was only that the legal proceedings instituted under the repealed Act could be continued "as if the repealing Act had not been passed." But this provision could not obviously carry the proceedings beyond the original life of the repealed Act and since in the present case the Act was repealed on the same day that it was due to expire, the proceedings might at the most remain alive for a few more hours. But the real answer to Mr. Roy Chowdhury's contention is that so far as suits for ejectment referred to in the Kent Act of 1948 are concerned, they were not brought under that Act, but were brought under the Transfer of Property Act and, therefore, repeal or expiry of the Bent Act would not affect the life 'of the suits. Proceedings for standardisation of the rent were undoubtedly instituted under the Bent Act, but to them the Act of 1950 is expressly made applicable by Section 17 (3) and by necessary implication they are saved. A further difficulty, however, remains. It may be argued that even if the suits brought during the time of the Rent Act of 1948 did not die with the Act, the special defences and privileges conferred by it on the tenant would no longer be available after its repeal, except upto the date of the original life of the Act, even if Clause (c) of Section 8, Bengal General Clauses Act applied; and if the Act of 1950 also does not apply to those suits, the tenant is reduced once again to the stark position under the Transfer of Property Act without any special protection under any Bent Act at all. There may or may not be a solution of that apparent difficulty, but it is not necessary to consider the large question of the whole Act in the present reference which is limited to Section 14 (4). That section deals with a specific matter, and, therefore, can and ought to be considered by itself. In my opinion, whether or not the other provisions of the Act of 1950 apply to suits pending at its commencement, there is sufficient indication that Section 14 (4) does not by any necessary intendment.
24. As I have already stated, it was not contended that any intendment was discernible in sub-section itself. Nor, as I have shown, can any intendment be found in any general considerations. It is to be borne in mind that Section 14 (4) does not reproduce any corresponding provision of the Act of 1948, but is a new provision which is not beneficial to the tenant. Indeed, even the remaining sub-sections of the section which, except the proviso to Sub-Section (3), are beneficial, do not appear to be intended to apply of their own force to pending suits, for if such wore the intention, I can see no reason for making a specific provision in Section 18 (5) that in those of the pending suits in which no decree for ejectment would be passed except on the ground of an ipso facto determination of the tenancy under Section 12 (3) of the Act of 1948, the Court shall exercise the powers of granting relief against ejectment given by Section 14 of the Act. That the new Act found it necessary to make a specific provision for making the powers given by Section 14 exercisable in a particular type of pending suits, makes it abundantly clear that the Section is not intended to apply to any pending suit of its own force.
It has already been pointed out that even Section 18 (5) does not make Section 14 applicable in terms to the limited class of Suits with which it deals. It was contended by Mr. Boy Choudhury that the special provision in Section 18 (5) was necessary in order to provide for cases in which the interest of the tenant had ipso facto been determined, with the result that the suit against him would not be a suit against a tenant but a suit against a trespasser to which the provisions of a Rent Act could apply. There is no point in that contention, because the special provision in Section 18 (5) existed even before the section was amended by way of introducing the case of tenants whose interest had ipso facto determined and, secondly, because the definition of 'tenant' was enlarged so as to include such tenants at the same time that Section 18 (5) was amended. There is thus no reason for saying that Section 18 (5) deals with suits for ejectment against persons who are not tenants properly so called, and that, therefore, the special provision authorising the application of Section 14 to such suits does not suggest that the section is not intended to apply of its own force to pending suits for ejectment against tenants. In my opinion, since the Legislature considered it necessary to make a special provision for applying the principles of Section 14 to a certain class of pending suits and since even to that special class, only so much of Section 14 as enables the Court to give relief against ejectment, applies, the clear intendment is that Section 14 (4) is not to apply to suits for ejectment ponding at the commencement of the Act of 1950.
25. I may add that under Section 14 (5), the powers given by Section 14 (4) may be exercised even by Courts of Appeal, with suitable adaptations. If Section 14 (4) is retrospective, it is applicable, by virtue of Section 14(5), not only to appeals arising out of suits brought at the time of the Act of 1948 when such suits were pending at the commencement of the Act of 1.950, but also to appeals pending at such date. It is impossible to hold in the absence of a clear provision that a new law, affecting substantive rights, will apply even to pending appeals and the fact that no such clear provision has been made is another indication that Section 14 (4) is not intended to be retrospective.
26. Since there is neither any express provision, nor any necessary intendment that Section 14 (4) of the Act of 1950 shall apply to suits for ejectment pending at the commencement of the Act, the answers to the questions referred to a Full Bench should, in my opinion, be as follows : (a) No. (b) No.
27. I can see no injustice or hardship or anomaly in that result. The broad principle is that if a tenant sued for ejectment was in arrears in respect of rent at the date of the suit, he must pay such and sabsequent arrears if he would avoid ejectment. A provision to that effect was contained in Section 12 (2) of the Act of 1948 and Section 14 (1) of the Act of 1950 is virtually a reproduction of that provision, although the period of default is reduced. In addition to that provision, the Act of 1950 introduced a more rigorous one in Section 14 (4), providing for the payment of the arrears and regular payment of the current rent, if the defendant would have his defence considered. If that provision applies only to suits brought after the Act of 1950, and not also to suits pending at the date of that Act, the landlord cannot possibly complain of injustice that a new right, enabling him to realise rent by a coercive process in the course of an ejectment suit, was not extended to old suits as well.
28. Turning now to the facts of the present case the suit was pending both on 81-3-1950, when the principal Act of 1950' came into force and on 30-11-1950, when the operation of the Amendment Act commenced. But such pendency makes no difference, since neither Section 18 (5) of the Act of 1950, nor Section 5 of the Amendment Act applies to the suit and since neither of them attracts Section 14 (4) even to suits to which they apply. The present suit is not one brought after the Act of 1950 and consequently Section 14 (4) of the Act does not apply to it, even apart from the reason that there were no arrears of rent at the date of the suit. It follows that the learned Subordinate Judge was wrong in directing the defence of the defendant to be struck out under Section 14 (4).
29. The Rule issued in this case is an open Rule, but since the remaining grounds taken in the petition relate to the merits of the case which have not yet been considered by the Court below, it is not possible to deal with any other point at the present stage. The case must go back to the learned Judge for trial on the merits.
30. In the result, the questions referred are answered in the negative. The rule is made absolute, the order of the learned Judge, dated 16-3-1951, is set aside and case is sent back to him with the direction to restore the defence to file and hear and determine the suit in accordance with law after taking the defence into consideration. This order will not affect in any way the consent order passed on 23-8-1950 under which the defendant bound itself to pay the rent month by month within the statutory period.
31. As the question involved in the rule is one of some difficulty and the only Division Bench ruling was in favour of the opposite party, there will be no order for costs either for the hearing before us or for the hearing before the referring Bench.
G.N. Das, J.
32. I agree.
K.C. Das Gupta, J.
33. I entirely agree with my Lord the Chief Justice.
S.R. Das Gupta, J.
34. I agree.
35. I am clearly of the opinion that the case of Jyotindra Nath v. Sourendra Nath, 55 Cal. W. N. 123 has been rightly decided and since that is not the majority decision, it is my duty to state my reasons.
36. When a tenancy has been determined according to the provisions of the law, the landlord is entitled to get possession, and if the tenant refuses to make over 'possession, the landlord is entitled to take proceedings in Court to get possession. The landlord is the owner of the premises and as such is entitled to remain in possession of the premises subject to any subordinate right that he might have created. The tenancy created by the landlord gives the tenant the right to enjoy the property for a certain time and on certain conditions. '' The tenancy is a contract between the lessor and the lessee for the possession and profits of land, etc., on the one side and recompense by rent or other consideration on the other. '' When the time is over or the contract is determined according to law, the landlord becomes entitled to get back possession of the land or the premises and if the tenant refuses to quit, the landlord can by help of the Court eject him. That was the general law of the land previous to the passing of the Rent Acts.
37. But the legislature in its wisdom from time to time passed the Rent Act for the control of rents of premises in Calcutta and in certain other areas in West Bengal. This the legislature had to do for various reasons. The problem of accommodation became very acute in those areas and the rent as a result went up to a limit beyond the reach of ordinary citizen. As a result various Rent Acts and Ordinances were passed by the State Government, e.g., Bengal House Rent Control Order 1942, Calcutta House Rent Control Order 1943, Rent Ordinance of 1946, West Bengal Rent Control Ordinance, 1946, West Bengal Premises Rent Control Act, 1948 and finally the Rent Act of 1950. The object of the Rent Acts and Ordinances has been subject to certain conditions being fulfilled by the tenant to allow him to remain in possession of the premises, so long as he pays rent in terms of the contract or the Act.
38. The legislature said to the landlord as it were :
" You let the premises to tenants. You do not require them for you own occupation. You wanted rent. Very good. Take the rent and let the tenants stay on. You cannot evict them at your pleasure. You are concerned only with the rent. I shall see that the rent is duly paid. If the rent falls into arrears you in certain eases will get interest. But so long as rent is duly paid, you will not be entitled to eject the tenant except under certain contingencies."
39. And to the tenant the legislature said :
" Whatever the law of the land might be, no decree for possession against you would be passed so long you pay rent regularly and perform the conditions of the tenancy (1948 Act). If you allow the rent to fall into arrears I shall allow you time to pay it within a specified date but you have to pay interest. But mind you, if at any time it is proved that you do not want the premises for your own occupation, for example, if you sub-let a certain portion of the premises and make profit out of the sub-let, you will not be given the protection of the Act. Likewise if you cause nuisance or annoyance to the occupiers of the adjoining premises, or if the landlord requires the premises bona fide for the purpose of building or rebuilding or for his own occupation, you must quit if your tenancy has been duly determined. You will not get protection under the Rent Acts."
40. In my view, subject to the predominating intention of the legislature to allow the tenants to remain in occupation of the premises let to them, the Rent Acts have aimed at adjusting the mutual rights and obligations of the landlord and the tenant.
41. In the 1948 Act certain defects were found which acted to the prejudice of the tenant. One of them and indeed the most important of them was the ipso facto determination of the tenancy for the tenant's failure to pay rent for three consecutive months. This section and some other sections created a lot of, difficulty. So the 1950 Act was passed which has replaced the Act of 1948. The 1950 Act was passed as the preamble shows, to make better provision for the control of rents of premises in Calcutta and in certain other areas in West Bengal.
42. The 1948 Act remained in force till 31-3-1950, and immediately on its ceasing to be in operation, the 1950 Act came into force as if the latter Act was intended to be a continuation of the other Act with certain more facilities given to the tenant. The object of the 1950 Act was to further ameliorate the condition of the tenants. Under the 1950 Act, there could be no longer the ipso facto determination of the tenancy. By this Act the tenant has been given the utmost latitude to stay on, consistent with the rights of the landlord, by paying rent, and if the rent falls into arrears, provision has been made for payment of the arrears and the tenant continuing in possession. So great was the desire of the Legislature to protect the tenant from eviction that it has given power to Court to rescind or vary decrees or orders previously made and to give relief to tenants in pending suits in certain cases : (section 18). Sub-Section 1 of the section provides that whore 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 ' for vacating the decree for ejectment against him. If the tenant pays the sum fixed by the Court within the time specified under Sub-Section 2, it is incumbent on the Court to vacate the decree for ejectment with all consequential orders, and the tenancy continues as if it never terminated.
43. From the provisions of sub-ss. 2 and 3, one can see the anxiety of the Legislature to allow the tenant to stay on, and at the same time to secure to the landlord the payment of rent. For Sub-Section 4 provides that if the tenant fails to make the payment within the time mentioned by the Court, his application for vacating the decree shall be dismissed.
44. Sub-Section 5 expressly provides that the relief under Section 14 shall be given in suits which were pending when the 1950 Act came into force, though instituted before, It provides that if at the date when the 1950 Act came into force, a suit for ejectment of a tenant was pending, whether in a trial Court or in a Court of first or second Appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the Act of 1948, the Court shall exercise the powers of granting relief against ejectment given by Section 14 of the Act of 1950 following the provisions and procedure of that section, as far as may be necessary, and for the said purpose shall make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just.
45. By a decision of this Court, S. B. Trading Go. Ltd. v. Satyendra Ch. Sen, 54 Cal. W. N. 756, a Bench of this Court held that Section 18 (5) of the Act of 1950 had no application to suits for ejectment based on the ground that the tenancy had been ipso facto determined by failure to pay three consecutive months' rent as provided by Section 12 (3), Rent Control Act of 1948. As a result of this decision, a very large number of tenants against whom suits wore pending when the 1950 Act came into force were deprived of the relief contemplated in Section 18 (5), Rent Control Act of 1950. To remedy this the Legislature passed an Amending Act-the West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act of 1950, which came into force on 30-11-1950. By this Amending Act, the term 'tenant' was amended and was redefined so as to include (inter alia) any person whose interest in the premises has been ipso facto determined under Sub-Section 3 of Section 12, West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. By Section 5 of the Amending Act it was provided: 'In all applications made under Sub-Section 1 of Section 18 of the said Act (meaning the 1950 Act) which are pending at the commencement of this Act and in all suits referred to in Sub-Section 5 of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied.'
The scope and meaning of Section 5 of the Amending Act was considered by this Court in the United Commercial Press Ltd. v. Satyanarain, 56 Cal. W. N. 346. It was held that on a true construction of Section 5 of the Amending Act all that was intended was that the amended definition of 'tenant' and the substitution of the words in Section 18 (5) were to apply to all suits pending at the time when the original 1950 Act came into force and that the whole of the Rent Act of 1950 was not made applicable. I have no reason to differ from the construction given in that judgment, to which I was a party, to Section 5 of the Amending Act.
46. Harries C. J., who delivered the judgment of the Court observed:
"The Court leans against giving an Act retrospective effect and will only give it such effect if it is compelled to do so by express words in the statute or where retrospective effect is clearly to be implied from the words of the statute. So far from the provisions of this statute suggesting that they should have retrospective effect, the provisions, I think, clearly suggest the contrary. Why should it have been necessary to enact Section 18 (5) if the whole Act was to have retrospective effect? The Act would have applied to these suits and applied with full force; Section 14 of the Act which provides for relief would have been applicable. Yet we find that Section 18 (5) was enacted which expressly provides that a limited relief will be given to tenants in suits pending when the Act came into force. It is provided that in such eases the Court shall exercise the powers of granting relief against ejectment given by Section 14 of the Act following the provisions and procedure of that section as far as may be necessary for the said purpose. The Court is enjoined to give effect to Section 14 as far as possible in such suits. But if the Act had been retrospective the Court would have been bound to give full effect to Section 14 in all such suits. It appears to me that the existence of Section 18 (5) in the Act of 1950 makes it clear that the Act was never intended to be retrospective and was only to have such retrospective effect as was expressly given to it in the statute itself."
47. This observation of the learned Chief Justice affords a valuable guide to the determination of the question under consideration. His Lordship said that the Court must exercise the power of granting relief against ejectment given by Section 14 of the Act and follow the provisions and procedure of that Section in so far as it may be necessary for the said purpose. The Court is not bound to give full effect to Section 14 in all such suits. But the Act has made it incumbent on the Court to grant the relief and to do that to follow the provisions and procedure of Section 14 so far as may be necessary for granting the relief.
48. Now what are the provisions of Section 14, which are to be followed by the Court to give relief under Section 14? That section defines the conditions under which a tenant can get the benefit of protection against eviction.
49. Sub-Section 1 provides that
'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 upto the date of the Order mentioned hereafter. . . . . . . . . . ' '
Sub-Section 2 provides for fixing the date of payment. Sub-Section 3 provides that if within the time fixed in the order under the provisions of Sub-Section (1) the tenant deposits in the Court the sum specified in the 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. In other words in a suit for recovery of possession, if the tenant pays the amount mentioned in the order made under Sub-Section (1) within the specified date, the suit so far as it is for ejectment, shall be dismissed by the Court. The other claims in the suit would be tried according to law. But the tenant is not given the benefit of the section against eviction, if he makes default in payment of the rent referred to in Clause (i) of the proviso to Sub-Section l of Section 12 on three occasions within a period of eighteen months. For easy reference I set out here Clause (i) of the provision to Sub-Section 1 of Section 12. It is this:
"Subject to the provisions of Section 14, where the amount of two months' rent legally payable by the tinant 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."
This is one of the sub-sections which disentitle the-tenants protection 'against eviction.
49.It is quite clear from what I have said that the tenant is not given any protection if he does not pay rent as provided in the section. The relief to be granted to a tenant is contained in Sub-Section 1 of Section 14. The conditions of the relief are stated in sub-Sections 2 and 3. In determining the amount the 'tenant' has to pay under Sub-Section 1 as a condition of the relief, the Court has to take into consideration any order made under Sub-Section 4. The material words are : "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."
50. Sub-Section 4 of Section 14 provides that if the tenant contests 'the' suit, as regards claim for ejectment, (I think there should have been a 'the' before 'claim' in the section), the plaintiff-landlord may make an application at any stage of the suit for an order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The said power given under Sub-Section 4 may be exercised by the Courts of appeal with necessary adaptation. Sub-Section 4 is mentioned in Sub-Section (1) which provides for granting the relief.
51. So there cannot be any doubt that under the first part of Sub-Section 4, the landlord can make an application for an order on the tenant-defendant to deposit rent month by month at the rate at which it was last paid and that such application can be made in a suit instituted previous to the-Act of 1950 but pending on the date the Act came into force. It is also provided in Sub-Section 4 that when the rent is deposited the landlord may apply to the Court for permission to withdraw the deposited rent without prejudice to his right to claim a decree of or ejectment and the Court may permit him to do so. Thus it is clear that both the first part and the last part of Sub-Section 4 apply to pending suits.
52. The question is whether the Court can order, as it has done in the case before us, the defence to be struck out in the event the deposit is not made in terms of an order made under the first part of Sub-Section 4.
53. There is no doubt that the right to defend ,a suit is a substantive right. Nobody can deny that. It is a principle of natural justice that no decision should be given against a person without hearing him or giving him an opportunity to be heard. The defendant's right to be served with a notice of a proceeding against him or his right to defend the proceeding cannot be disputed and in this case when the suit was instituted the defendant had that right. And to deprive a litigant in a pending action of his right to defend it is a very different thing from regulating procedure.
54. The question is whether that right has been taken away by Sub-Section 14 (4).
55. The authorities are clear that statutes should be interpreted, if possible, so as to respect vested rights; Hough v. Windus, (1884) 12 Q. B. D. 224, at p. 237 and in the absence of anything in the Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the act is passed: Leeds and County Bank v. Walker (1883) 11 Q. B. D. 84 at p. 91.
56. At the same time the Court should not hesitate to give an Act retrospective operation if there are express words to that effect or there is the necessary implication. "Baron Parke", said Lord Hatherley, in Pardo v. Bingham, (1870) 4 Ch. A. 735, 740 "did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed, and said that the question in each case was whether the Legislature had sufficiently expressed that intention. In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied and consider what was the former state of the law, and what it was that the Legislature contemplated."
57. That being the rule of construction, the question is whether the 1950 Act has made Sub-Section 4 of Section 14 applicable in its entirety to pending suits. Under Section 18 (5) the Court must grant relief : "the Court shall exercise the powers of granting relief" given by Section 14 and the Court will follow the provisions and procedure of that section as far as may be necessary. Before relief is granted under Section 14 (1), the Court shall determine the amount of rent legally payable by the tenant and which is in arrears : the Court is required to take into consideration any order made under Sub-Section 4 of 3. 14. It is quite clear therefore that the first part of sub section. 4 applies to all pending suits in which relief against ejectment is given to tenants. There cannot be any doubt either that the last part of Sub-Section 4 giving the landlord permission to withdraw the deposited rent is also applicable by necessary implication. The question is whether that part of Sub-Section 4 which authorises the Court to strike out the defence is applicable.
58. Again I rely oh the observation of Harries C. J. in the United Commercial Press Ltd. case, (56 Cal. W. N. 346). He said the provisions and procedure of Section 14 so far as may be necessary for the purpose of granting relief should be followed. Is it necessary to strike out the defence to give relief to the tenant ? It is not. In suits which are filed after the 1950 Act came into force, the entire subsection is applicable and if an order made under the first part of Section 14 (4) is not complied with, it is the duty of the Court to strike out the defence : "the Court shall order the defence against ejectment" to be struck out. But in a suit which was filed before the 1950 Act, it is not enjoined that the Court shall strike out the defence. The Court is directed to follow the procedure and provisions of the section as far as may be necessary. Therefore I may say that so far as that portion of Sub-Section 4 is concerned which enjoins the Court to strike out the defence, it is not retrospective.
59. What has Jyotindra's case, (55 Cal. W. N. 123) decided? In that case the learned Subordinate Judge, Sixth Court, Alipore made an order that the tenant should deposit month by month rent at the rate at which it was last paid and also the arrears of rent within a certain time. He made an order in a suit filed previous to the 1950 Act but pending on the date that Act came into force, in terms of the first part of Section 14 (4). Against this order of the learned Subordinate Judge, a rule was obtained by the tenant from the High Court. That rule was discharged and the learned Subordinate Judge's order upheld. I do not see any reason whatsoever as to why we should hold that Jyotindra's case was wrongly decided. In my view for the reasons I have given above that case was rightly decided, the actual decision being that the first part of Section 14 (4) has retrospective operation.
60. But it does not necessarily follow from the decision of Jyotindra's case, (55 Cal. W. N. 123) that that part of Section 14 (4), which provides that if the tenant fails to deposit rent as ordered under the first part of that section the defence should be struck out, should also have retrospective operation. For as I have already said it is not necessary to give that part of the section retrospective operation in order to give relief to the tenant under Section 14 (1) in a suit which was instituted before the 1950 Act and was pending on the date it came into operation. Therefore a decision which says that that part of the section which directs the defence to be struck out in default of compliance with the order made under the first part is not retrospective would not be a wrong decision either.
61. I would note here that in this case also the landlord made a similar application, intituled as an application under Section 14 (4). No objection was taken on behalf of the tenant that the application could not be made under Section 14 (4). By consent the order was made as to deposit. I do not say or suggest for a moment that this omission on the part of the tenant to take objection settles the matter.
62. I would answer the questions referred to us therefore accordingly. I hold 'that the learned Subordinate Judge in this case exercised his jurisdiction wrongly by ordering the defence to be struck out.
63. I may say here that as to the meaning of the words "the suit" in the expression 'if the tenant contests the suit', I am in complete agreement with the reasons given by the learned Judges in the Jyotindra's case, (55 Cal. W. N. 123). I would only add that the meaning given by the learned Judges to the word 'the' in 'the suit' is also borne out by the words in Sub-Section 3, "so far as it is a suit for recovery of possession of the premises." In other words a suit may be instituted not only for ejectment but for other claims also, and 'the suit' in Section 14 (4) means the suit so far as it is a suit for ejectment; 'the suit' in my view does not mean the suit referred to in Section 14 (1). It is not necessary for me to reiterate the reasons given in Jyotindra's case on this part of the case.
64. The actual order in the ease should be according to the majority decision.