1. This application under Section 115, C. P. C. by a tenant defendant is directed against an order dated 26-7-52 under Section 14(4), West Bengal Premises Rent Control Act, 1950, in an ejectment suit brought against him by the plaintiff opposite party. In that suit the plaintiff made an application for directing the defendant "to deposit all arrears and current dues month by month as provided in Section 14(4) of the Act." This petition was disposed of by the lower Court after contest by the following order passed on 12-3-52 :
"Parties are ready Heard both sides' lawyers regarding petition under Section 14(4) of the Act. Parties have filed a statement of account. It appears from it that Rs. 88/- is in arrears up to February 1952. Hence ordered that the defendant be directed to deposit Rs. 88/- within 15 days from the date. He is further directed to deposit rent at the rate of Rs. 16-8 per month from month to month to be deposited within 15 days of the month following for which the rent is due. Put up on 31-3-52 for orders."
2. It is to be noted that the order does not mention what is to happen in case of non-compliance with it. The defendant deposited the arrears of rent of Rs. 88/- in time and also the rents for the months from March 1952 to May 1952, but there was some delay in making the deposit for the month of March 1952 with the result that upon the prayer of the plaintiff the Court passed an order under Section 14(4) on 26-7-52 striking out the defence as against the claim for ejectment after rejecting the defence prayer for condoning the delay.
3. It is against this order dated 26-7-52 that the present petition is directed.
4. The first point that has been urged on behalf of the petitioner is that, as pointed out before, there being no penal clause about striking out the defence in case of default in the order dated 12-3-52 the learned Munsif was not justified in striking out the defence regarding ejectment and as a corollary to this argument, it was contended that in the circumstances of this case the Court could and should, have condoned the delay in the deposit of the rent for March in view of Section 148, C. P. C. In this connection our attention was invited to certain observations in the judgment of Chakravartti C. J. in the recent Full Bench decision in the case of -- T. S. R. Sarma v. Nagendra Bala', (A). In that Full Bench case, the point now
under consideration did not directly fall for decision and not much assistance can be derived from that case in regard to this point. The contention of Mr. Mitter for the petitioner seems to lay inadequate stress on the fact that the plaintiff in his petition dated 12-3-52 had prayed for deposit of rent 'as provided in Section 14(4) of the Act' -- a prayer that carried with it the implication that in certain contingencies the defence regarding ejectment was to be struck out. Though in the order of the Court dated 12-3-52 it is not specifically mentioned that the defence against ejectment was to be struck out in case of default, we are of opinion that such was the necessary consequence of the order. The Court was granting the prayer of the plaintiff in toto without any qualification or reservation as regards the penalty. The penalty in case of default was laid down clearly in the section viz. Section 14(4): it would follow as a necessary and inevitable consequence without leaving any scope for discretion on the part of the Court. Striking out of the defence against ejectment was a mandatory provision of the statute; default would be automatically followed by it, even though the Court had not reproduced in its brder the words of the statute and, in view of the imperative words of the statute the Court could not, even if it so desired, show any indulgence to the tenant defendant either by condoning delay in payment or in any other way. The first contention of Mr. Mitter must accordingly fail.
5. It has next been contended by Mr. Mitter that the present case did not attract the operation of Section 14(4) at, all. The validity of his argument will be examined presently. Before that question is gone into, it is necessary to dispose of one argument of Mr. Ray on behalf of the plaintiff opposite party. Mr. Ray has argued that after the defendant had deposited rent including arrears in compliance with the Court's order dated 12-3-52 it is not open to Mr. Mitter to contend, as he has done, that the Court acted illegally in passing that order. In support of his contention Mr. Ray has relied upon a passage in the judgment of Chakravartti C. J. (sitting with Sinha J.) in the unreported case of -- 'D. R. Gellatly v. J. R. W. Gannon', Civ. Revn. No. 1270 of 1952, D/- 9-1-1953 (Cal) (B). We do not think that it will be proper to lay undue stress on that passage torn from, its context. The facts of that case are very different from those of the present one and in the passage referred to above, his Lordship was referring incidentally to the conduct of the defendant petitioner in that case in not moving this Court earlier against the order under Section 14(4) passed against him by the trial Court. The systematic course of conduct of the defendant in that case especially the proceedings for standardisation of rent initiated by him showed unmistakably that he was a tenant and it was, therefore, held that it was not open to him to turn round and avoid the result of his default he had admittedly committed by setting up the plea that Section 14(4) did not apply to his case at all.
In the present case all that can be charged against the defendant is that he had not come up promptly to this Court against the order dated 12-3-52 but waited till 26-7-52 when his defence against ejectment was finally struck out after he had made some payments in pursuance of the previous order. We are not prepared to hold that in circumstances such as these it is not open to the defendant petitioner to challenge at this stage the jurisdiction or authority of the Court to pass an order under Section 14(4).
6. This brings us to the question whether Mr. Mitter is right in his contention that the order under Section 14(4) passed on 12-3-52 was not a legal order at all on the ground that this case did not come within the mischief of that provision. The plaint shows that the suit for ejectment was based not only on the ground of default but also on the ground of bona fide requirement for the plaintiff's own use and occupation. In these circumstances relying, upon the observations of his Lordship the Chief Justice who delivered the majority judgment in that F. B. Case, Mr. Mitter has contended that as in this case it cannot be said that the landlord could not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 12, the Court had no authority to pass an order under Section 14(4). Mr. Mitter has also drawn our attention to the case of --'Bhabani Charan Chaudhury v. Nagendra Bala Debi', Civ. Revn. No. 2226 of 1952, D/-14-1-1953 (Cal) (C), where Chunder J. following. the F. B. Case referred to above, has, on facts-which seem to be similar to those of the present case, decided that Section 14(4) did not apply. After the F. B. decision the question would seem to admit of no debate so far as this Court is concerned.
On behalf of the plaintiff Mr. Ray has drawn, our attention, however, to the case of --'Janab Ujir Ali v. Sasanka Mohan Guha', Civ. Revn. No. 1436 of 1952, D/- 15-1-1953 (Cal) (D), by Chakravartti C. J. and Sinha J, in support of his contention that even when one of the grounds taken in the ejectment suit is the ground of default as contemplated by Section 12(1) (i) of the Act, the suit is within the ambit of Section 14(1) and therefore within the ambit of Section 14(4). Apart from authority, Mr. Ray has advanced an ingenious argument that it is only by construing the Statute in the above sense that justice can be done to both the landlord and the tenant. With all due respect to the observations of His Lordship the Chief Justice in the above unreported; case -- which, it may be mentioned incidentally, was decided without hearing the learned advocate for the tenant defendant and in which, we understand, a rehearing petition is pending -- we are bound to follow the F. B. decision which has laid down in the unequivocal words of His Lordship the Chief Justice that Sub-section (1) of Section 14 is clearly limited to 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.
7. It has been further laid down there that suits in which the protection of the Act may be unavailable to the tenant on any of the other grounds mentioned in Clauses (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). It has also been laid down in that case that the type of the suit contemplated by Sub-section (4) of Section 14 is the same as contemplated by Sub-section (1) of Section 14, Rent Control Act, 1950. If we may say so with respect, the above propositions are supported by weighty reasons and in any case it is not open to us to reagitate the matter. If this causes hardship or injustice to any party, the remedy lies elsewhere. The above view seems to be in consonance with the plain language of the Statute. We are bound, therefore, to uphold the contention of Mr. Mitter to the effect that the striking out of the defence regarding ejectment On the strength of the order dated 12-3-52 cannot be supported. The rule is made absolute accordingly, the order of the lower Court dated 26-7-52 striking out the defence as against the claim for ejectment is set aside and the case is directed to be disposed of according to law in the light of the observations made above.
8. In view of all the circumstances, there will be no order as regards the costs of this rule. Let the records be sent down as early as possible.
9. I agree.