1. In this case there must be a degree for ejectment. The suit was brought for ejectment on the 3rd February 1920, and it appears, and, indeed, it is admitted, that the plaintiff on the 12th August 1919 tock an assignment from Luehminatain Sadani for a term granted by an Indenture bearing date the 20th September 19.8 and made between the Archbishop of Caleutta and Lushminerain Sadani. The defendant firm Messrs. Lalbshari Datt and Sons had been in ocaupation of two rooms in the premises for sometime before. Luchminarain Sadani was granted his lease. Lushminarain Sadani raised the rent to Rs. 175 par month. After the plaintiff took an assignment of the term the defendants paid that rent to the plaintiff and took two recepts for the month of August and the month of September 1919. They began to fall into arrears from the month of October 1919 and, in point of fast, they paid no rent at all until the time when, in June of this year, 1921, they paid into the lands of the Rent Controller under the Rent Ast a sum of over Rs. 3,000, being the rent from October 1919 until May of this year. In the meantime, on the 3rd February, this suit was instituted. On the 26tb April 1920 the written statement was filed. On or about the 5th May the Rant Act came into foace Calcutta. What has happened is, that, notwithstanding the Rent Act, no amendment of pleadings has taken plane and the suit in some way, which I do not quite understand, comes on now in June 1921 before me as a short cause. Prior to the Rant Act the position was shortly this. The defendant, as they quite admit, were monthly tenants. In November they got more than a month's notice determining their tenancy at the end of Dacember, and at the end of December, therefore, the landlord, in this case, the plaintiff, was entitled to re-entry. That position is the position pleaded in the plaint with this exception that the plaint contains some irrelevant matters purporting to explain why the plaintiff desired to have his premises back again. Before the Rent Act same into force it was, so far as I know, entirely irrelevant for the landlord, whose tenancy had been properly determined by a notice of quit, to explain why he wanted to have his rights. The written statement, however, deals with certain matters by way of showing that the purpose of repairs which the landlord had alleged was not ore which made it necessary for the landlord to be allowed to re-enter. When the Rent Act same into force the matter took a different complexion. Nothing was dens to put the ploadings into order, and before me at the opening of the case the landlord desired to maintain that he came within the proviso to Section 11 of the Rent Act, as being a landlord who required the premises for the purpose of building or re-building. That matter has not been enquired into by me for the reason that it did not appear to me probable that this course would be necessary. If it had been necessary, I should certainly have, on some terms, allowed the defendants an opportunity of investigating into that question. However, Mr. Kanjilal, who has very ably conducted the case for the defendants, has offered me on the question of the Rent Act the issue as to whether the defendants have fulfilled the conditions of Section 11. Undoubtedly, as I am giving him leave to raise the Rent Act, he has to show that he has fulfilled those conditions. So far as they are concerned, the first question is, whether the defendants here are within the meaning of the words "so long as the tenant pays rent to the full extent allowable by this Act." Mr. Banerji for the plaintiff takes the point that in this case the tenancy had been determined at the end of 1919, so that in May 1920, he says, the defendants, were mere trespassers. When one somes to consider the meaning to be attached to the word "tenant," one has the definition under Section 2 to guide one. That states "any person by whom or on whose acsount rent is payable for any premises." In answer to that Mr. Banerji naturally says that mesne profits are not rents. What a trespasser has to pay for his trespass, is not rent. Therefore, he puts the problem before me whether the defendant company are within the meaning of Section 11 at all. I think the defendant company are within the meaning of "tenant" in Section 11 and are tenants in the special sense in which that word is used. It seems to me that this is shown by Section 12 which contemplates the case of a person who has had an order made against him for recovery of possession of property before the operation of the Rent Act, and it goes on to say that if the Court is of opinion that the order or decree would not have been made if this at had been in operation, the Court can even yet give relief. In strictness of language, decree for the recovery of possession of property is never made against a tenact. If there has been a tenancy and the decree is upon a forfeiture, it is on the footing that the term was forfeited either before suit or at the latest by the issue of the writ. In the same way against a tenant at will or a
tenant-on-sufferanse, the issue of the writ would determine the tenancy. So far as I know, it is never correct that a decree for recovery of possession should go against a person who is in strict sense a tenant. Mr, Kanjilal has drawn my attention to the fact that in the English Rent Act the word "tenant" has been given a very special and specially wide meaning. I should say that persona in the position of the defendants are not outside the scope of Section 11 on the ground that they are not tenants.
2. I now some to the question whether the defendants here have not been shown to be hit by Sub-section 5 of Section 11. The position was that, when the Rent Act came into force, they were in arrear with their rent since October 1919, and until June of 1921, when they paid money to the Rant Controller, they did nothing in the way of paying rent at all.
3. Sub-section 5 is intended, as I think, to give persons who are tenants three months within which they may pay up and put themselves in the position of being entitled to claim the benefits of the Bent Act. If a person is in arrear in May 1920 with his rent, he still has three months in whish he can pay up those arrears under the first part of that Sub-section, Three months in this case would take us to August 1920, as a matter of fact the 5th or 4th, By that time this defendant had done nothing to pay up any of the arrears that were standing over since October 1919, He says with regard to that two things. First of all, he says, it was for the plaintiff by the custom to send and collect rent, that the durwam never came, that the plaintiff never same although the defendants were asking him to come and collect their own rent. The plaintiff's story is that he went for the rent on some three occasions and could not get the rent. Of these two stories I have no hesitation at all in believing the plaintiff and rejecting the story of the defendant.
4. Then it is said that in June 1920 a letter was received from a Firm of Hustamull Chunilal claiming that the plaintiff was not the proper person to he paid the rent. As a matter of fact, Luchminarain, the previous landlord, had told the defendants himself that he was assigning to the plaintiff. The defendants had paid rent in respect of two months at leant to the plaintiff and accepted his receipt. Further, it appears now that some body had a quarrel with Luchminarain, namely, Luchmichand, a partner in the Firm of Hustamull Chunilal. Because this gentleman in June sent from Bikaneer this letter to the defendant the defendant says that he did not pay his rent at all to any body until June of 1921. No proof has been adduced before me of any letter written by or on behalf of the defendants in June of 1920 to the plaintiff asking about this matter or seeking to pay the money into Court or into the hands of any neutral party.
5. I regret to say that, as the Legislature has seen fit to forbid all the benefits of the Bent Act to any tenant who has not within three months from 6th May 1920 paid all arrears of rent due by him in respect of the said premises, it is not possible for me to hold that the defendants are entitled to them. It may be said that on the plaintiff's view after the beginning of 1920 what was due was not strictly rent but more strictly mesne profits; but, as I have pointed out, the defendant cannot claim the benefits of this section at all except by saying that he is in the position of a tenant within the meaning of the section, and, of course, he cannot have it both ways. He cannot claim, as he does claim and has all along claimed, to be in possession not as trespasser but as a tenant, and also claim to be under the words "so long as the tenant pays rent in Section 11," and also for the purpose of sub-section 5 say that it is not rent at all. The second half of Sub-section 5 is this "and also unless be pays the rent due by him to the full extent allowable by this Act within the time fixed in the contract with his landlord, or, in the absence of any such contract, by the 15th day of the month next following that for which the rent is payable." In the same way also the defendants here can make no pretence that they has done anything of the sort.
6. Under Sub-section 4 where a landlord refuses to accept the rent, the tenant may deposit it with the Controller within a fortnight of its becoming due. It is said that he is not bound to deposit it with the Controller. That is perfectly true. He is not bound to being himself within Sub-section 5 at all; bat if he wants to come under Sub-section 5, so as not to lose the benefits of the Bent Act, then, where the landlord refuses to accept it as rent, he may pay to the Controller and thus preserve his rights.
7. In these circumstances, it seems to me that it is entirely unnecessary to go into the question of whether these premises are bona fide required for the purpose of building or re-building.
8. Mr. Kanjilal has argued that the question under Sub-section 5 is a mere question of nonpayment of rent and that equity can relieve against any forfeiture for non-payment of rent. I mast say at once that that contention is entirely unfounded, If the defendant, apart from the Rent Act, had had a term, say 2, 3 or 5 years, and the landlord was proposing to forfeit that term by reason of non-payment of rent, equity could relieve against that forfeiture. But, apart from the Bent Act, if he had not a term bat was only a monthly tenant and had his month's notice, there would have been no equity on the part of the defendant to insist upon the Court giving him any larger interest in the property than he had agreed to with his landlord.
9. That being the position apart from the Bent Act, the defendants would have no defence here at all. The Bent Act puts the tenant who complies with its conditions into, much the same position as a tenant who is entitled to a term. At all events it gives him some fixity of tenure so long as the Rent Act is in force; but that privilege is given to a tenant who pays his rent and performs his conditions and to no once else.
10. The result is that, not being within Section 11 by reason of the non-payment of rent, the defendant has got no equity at all to ask the Court to give him the special relief provided by the Bent Act in the plain teeth of the section which says that such relief should go only to the tenant who has paid.
11. As regards the question of ejectment this is now towards the end of June, and I do not propose that the defendants should be ejected until the end of July. This is reasonable. The defendants mast pay the rent for July as a condition. They will, in any case, have till the 15th July. If by that time they pay Rs. 175 for July rent they will get till the end of July.
12. As regards the amount of mesne profits, there does not seem to be dispute.
13. As regards the money that has been paid to the Bent Controller, there mast be some sensible arrangement for withdrawing that.
14. The plaintiff will get costs on scale No. 2.