Ramesh Ch. Bhattacharjee and anr. Vs. Nagendra N. Mullick - Court Judgment

P.B. Mukharji, J.

1. This is a suit by the pltfs. for the recovery of the ground floor of premises No. 88/2, Wellesley Street, Calcutta. The deft. is said to be a monthly tenant in the said ground floor at a rent of Rs. 135 p. m. whose tenancy was determined by a notice to quit given on 25-5-1949 by the pltfs. solicitors. The ground on which possession is claimed is bona fide requirement for the purposes of building & rebuilding & for the purposes of the occupation of the pltfs. There is also an allegation that the deft. in violation of the terms of the tenancy caused extensive damage to the said premises. The prayers in the plaint include claim for possession, mesne profits & damages to the extent of of Rs. 20,000. The suit was filed on 1-8-1949 when the West Bengal Premises Rent Control Act of 1948 was in operation.

2. The original written statement of the deft. pleads that he has been working a printing press for several years with the knowledge & consent of the previous owners as well as of the pltfs. It admits that the tenancy was a monthly tenancy. It also admits the notice to quit. In the written statement it is pleaded that cracks to the walls & damage to the floor are due to the failure & neglect of the owners, previous & present, to effect necessary repairs, notwithstanding repeated requests. The original written statement was filed on 19-9-1949. Then there was an appln. for amendment & an order was made on 21-3-1950 by my learned brother Sarkar J. The purpose of that amendment is to delete the admission of monthly tenancy & to introduce the case of a tenancy for the purpose of running a printing press. The idea was by the amendment to make out a case of a manufacturing tenancy so that the notice to quit could be questioned.

3. Mr. B. C. Mitter appearing with Mr. S. Das for the deft. raised the following issues :

(1) Do the pltfs. bona fide & or reasonably require the premises for the purpose of building & rebuilding or for their own occupation ?

(2) (a) What are the terms & purposes of the deft's. tenancy ?

(b) Has he violated any of such terms ?

(3) Has the deft. caused damage to the premises in suit as alleged in paras. 4 & 5 of the plaint If so, what is the nature & extent of such damage ?

(4) Has the tenancy of the deft. been validly .determined by the notice dated 25-5-1949 ?

(5) What relief, if any, are the pltfs. entitled to ?

Mr. Meyer with Mr. S. P. Mitter, appearing for the pltf. had accepted those issues.

4. Issue 1--As the language in which issue 1 is framed will show the question at the outset is whether the old Rent Act of 1948 or the new Rent Act of 1950 will apply to the present proceedings. It is an important question because Section 11 of the Rent Act of 1948 has considerably been altered by Section 12 of the Act of 1950. Formerly a landlord who bona fide required the premises either for his own occupation or for the purposes of building or rebuilding could claim possession of his property & there was no question of hardship or disadvantage of the tenant. But now under the new Act, the Ct. has to consider comparative public benefit or disadvantage by extending or diminishing accommodation & the comparative advantage or disadvantage of the landlord or the tenant. I, therefore, propose to deal with this aspect of the issue first.

5. The recent rent legislation of 1950 in various sections of the Act has specified different pending proceedings to which the Act will apply. In Sub-section 3 of Section 17 of the Act, it provides that if at the date when the Act comes into force proceedings for fixing standard rent are pending before the Controller or in appeal, the Controller or the Appellate Officer shall fix the standard rent in accordance with the provisions as laid down by this Act. Then again Sub-section 5 of Section 18 of the Act provides that if at the date when the Act comes into force a suit for ejectment of a tenant is pending, the Ct. shall exercise the power of granting relief against ejectment given by Section 14 of the Act. Mr. Meyer's argument is that Section 12 of the Act cannot apply to a pending suit like the present one because that is not one of the sections which is made applicable to pending suit by express words. He has relied on the well-known decision of Moon v. Durden (1848) 154 E. R. 389 : (2 Ex. 22) which was followed by the Ct. of appeal here in Amulya Ratan v. Meghmala, 53 C. W. N. 474 at pp. 478 & 479. The question however, is not to be determined, in my opinion, by looking at Section 12 only. It is quite true that Section 12 does not use any words expressly to include a pending suit but the point is whether by the combined operation of Sub-section 5 of Section 18 of the Act & Section 14 of the Act, the particular Section 12 is made applicable to a pending suit.

6. Now Section 18 (5) of the new Act applies to a pending suit for ejectment of a tenant 'in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under' the old Act of 1948. The question for determination, therefore, is whether the suit that is pending before me is such a suit. If it is such a suit then the Ct. is obliged to grant 'relief against ejectment as provided in Section 14 which in its term refers to Section 12 of the Act; if not, then Section 12 has no application. On an analysis of the plaint filed in this suit I find there is no claim for ejectment of the tenant on the ground of default in payment of arrears of rent. The plaint is a claim for the ejectment of a tenant on the ground that the pltfs. bona fide require the said premises for purposes of building & rebuilding & for their own occupation. This, therefore, is a suit where a decree for ejectmentment could be made on grounds other than default in payment of arrears of rent as contemplated in Section 18 (5) of the Act. I hold, therefore, that Section 18 (5) of the Act of 1950 does not apply to this pending suit before me.

7. No rule of construction is more well settled than that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation except with regard to matter of procedure unless that is the inescapable result which cannot be avoided without doing violence to the language of the enactment. If the statute is expressed in a language which is fairly capable even of either interpretation it should in my view be construed as prospective only & not retrospective. The authorities are so numerous on the point that I do not propose to deal with them in detail & I will only refer to the observations of Wright J. in re Athlumney, (1898) 2 Q. B. 547 at pp. 551-2: (67 L. J. Q. B. 935). Section 12 of the new Act of 1950 does not deal with procedure but with substantive rights. On the principle of construction which I have just referred to, I am, therefore, not prepared to give Section 12 any retrospective operation save & except to the extent that is clearly stated in the statute.

8. The scheme of the new Rent Act of 1950 is to specify the classes of pending proceedings wherever the new Act is intended to be applied to them. Pending proceedings before the Rent Controller & pending suits for ejectment of a particular class are the only two instances where the new Act can be applied to pending proceedings. That is clear from the express words used in Section 17 (3) & Section 18 (5) of the Rent Act of 1950. In my judgment therefore no further retrospective operation or no further application of the new Act of 1950 to pending proceeding should be given except such as is provided in these two particular Section 17 (3) & Section 18 (5) of the Statute.

9. On the interpretation of Section 18 (5) of the Act of 1950 I have come to the conclusion that it does not apply to all the pending suits for ejectment of a tenant but only to that class of pending suits for ejectment where no decree could have been made except on the ground of default in payment of arrears of rent. So that a pending suit for ejectment of a tenant on any ground other than default in payment of rent does not come within the operation of Section 18 (5) of the Act. In other words, a pending suit for ejectment of a tenant on the ground of bona fide requirement for the purpose of building or rebuilding or for landlord's own occupation does not come within the meaning of Section 18 (5) of the Act of 1950.

10. While therefore I do not accept Mr. Meyer's sweeping claim that Section 12 of the Act does not at all apply to a pending action because I am of the view that Section 12 is attracted to a pending suit for ejectment if it is such a pending suit to which Section 18 (5) applies in which event by the combined operation of Section 18 (5) & Section 14 of the Act & by the express words used in Section 14, the provisions of Section 12 of the Act are necessarily brought into operation, I am still of the view that apart from this, Section 12 is not retrospective in operation & applies only to the pending suit where a decree of ejectment could be made on the ground of default in the payment of arrears of rent.

11. The question then is that if this is a pending suit to which the new Act of 1950 does not apply then what is the law that does apply to such a pending suit & according to which the rights of the parties in such suit are to be determined. Mr. B. C. Mitter, learned counsel for the deft., argued that I cannot apply the old Act of 1948 because that has been repealed completely by Section 45 of the new Act of 1950. That is an argument which must be overruled. The principle in such a case is clear & well-established. It is this that where an enactment is repealed unless a different intention appears the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder nor will it affect any legal proceeding or remedy in respect of any right, privilege or liability or forfeiture under the repealed Act. I need not go into the authorities on this point but will only be content by relying on the provisions of Section 8, Bengal General Clauses Act, whose provisions are similar to the like provisions in the Indian General Clauses Act. The same principle is recognised in Section 38, English Interpretation Act, 1889 & reference may be made to Bennet v. Tatton, (1918) W. N. 291 : (88 L. J. K. B. 313). I, therefore, hold that Section 11 of the. Rent Act of 1948 is the law that is to be applied to the pending suit that is before me.

12. Before I leave the discussion of retrospective operation of Section 12 of the new Rent Legislation of 1950 it will be appropriate to refer to certain principles under the English Law. Hailsham Edn. of Halsbury's Laws of England states the law in the following terms :

'It does not follow that because a statute does not contain the words 'from & after the commencement of this Act' it is retrospective or that when it contains them it is not retrospective. The word 'retrospective' is in itself ambiguous. A statute is not to be construed to have a greater retrospective operation than its language renders necessary.' (31 Hals. 515-516.)

The context of an Act & its scheme are, in my opinion, very often as important as the language in determining the question of the retrospective operation of a statute or of a particular section of it. Analysing the scheme, context & language of the Rent Act of 1950 I have come to the conclusion which I have stated above that Section 12 of the Act is not retrospective except in the case where a decree could have been made on the ground of default in payment of rent by reading Section 18 (5) which refers to Section 14 & which again in its turn refers to Section 12 of the Act. In the recent decision of the English Ct. of Appeal, in Hutchinson v. Jauncey, (1950) 1 ALL. E. R. 165 there is an attempt to shake up the law on this point & the dictum of Sir George Jessel M. R. In Re : Joseph Suche & Co. Ltd. (1875) 1 Ch. D. 48 at p. 50 : (45 L. J. ch. 12) has been doubted. It appears to have been laid down by Sir Raymond Evershed M. R. that a retrospective operation to a statute may be given although there are no express terms in the statute to indicate that, provided there is what the learned M. R. calls the 'necessary intendment of the Act' to affect pending cause of action. Even if the test of 'necessary intendment' is applied to find out whether a statute has retrospective operation or not so as to affect a pending action I am of the opinion that the case of Hutchinson v. Jauncey, (1950) l ALL E. R. 165 is clearly distinguishable because of the special language used in Section 10, English Landlord and Tenant Rent Control Act, 1949. There is no such comparable language used in our legislation of 1950 from which the 'necessary intendment' can be deduced. Besides the scheme & context of the Rent Act 1950 do not in my judgment show any 'necessary intendment' that Section 12 is retrospective except to the extent that I have already indicated.

13. The theory of 'necessary intendment' does not lay down any new law of retrospective operation of a statute. Sir George Jessel M. R. In Re: Joseph Suche & Co. Ltd. (1875-1 Ch. D. 48) observed in unequivocal language :

'I so decide because it is a general rule that, when the Legislature alters the rights of parties by taking away or conferring a right of action, its enactments, unless in express terms they apply to pending actions, do not, affect them. It is said that there is one exception to that rule viz : that when enactment merely enacts procedure & does not extend to rights of action they have been held to apply to existing rights.'

This dictum of Sir George Jessel M. R. was uttered in the context of the statute that was being considered in the cage where no case of necessary intendment arose. It is unfortunate that Evershed M. R. although eulogised the industry of counsel in examining many cases, the decision in Re : a Debtor (No. 490 of 1435) (1936) 1 Ch. 237: (105 L. J. Ch. 129) was not either cited or noticed where Lord Wright M. R. at pp. 242-3 presiding over the Ct. of Appeal sitting with Romer L. J. & Eve J. approved the observation of Jessel M. R. I refer to this decision in Re : a Debtor (No. 490 of 1935) (1936) 1 ch. 237 : (105 L. J. ch. 129) & specially to Lord Wright's observations at pp. 242-43 because it appears to me that Jessel M. R.'s dictum in Re : Joseph Suche, (1875) 1 Ch. D. 48 : (45 L. J. Ch. 12) was thought by Evershed M. R. as being only the expression of a Judge 'sitting at first instance.' Jessel M. E. in Quilter v. Mapleson (1883) 9 Q. B. D. 672 : (52 L. J. Q. B. 44) also considered a somewhat similar problem sitting in Appeal & came to the conclusion that Section 14 (2), Conveyance of Law of Property Act, 1881, was not confined to breaches taking place after the Act came into operation but extended also to breaches committed before the Act & to proceedings pending when the Act came into operation. At p. 674 of that Report Jessel M. R. observes :

'the question whether an Act of Parliament is retrospective in its operation must be determined by the provisions of the Act itself bearing in mind that a statute is not to be construed retrospectively unless it is clear that such was the intention of the Legislation.'

A perusal of this judgment leaves no room for doubt that the learned Master of Rolls considered the intention or the necessary intendment of the statute under consideration. This again was a case which was not noticed by Evershed M. R. Consideration therefore of the 'necessary intendment' of a statute is not a novel idea. But such necessary intendment in order to hold a statute or any section thereof retrospective so as to apply to a pending proceeding must in my view be compelling.

14. The words 'notwithstanding any law' in Section 12 of the Act are an expression which even if considered referable to both pending or future actions then the principle that where a statute is fairly capable of both retrospective & prospective operation it will be given only prospective & not retrospective effect should be applied. This expression therefore in my view cannot give Section 12 such a retrospective effect as to affect pending actions save in the manner that I have noticed. Similarly the expression 'Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession' in Section 12 of the Rent Act of 1950 even if considered referable to both pending & future actions then by the same principle only prospective & not retrospective effect should be given. Incidentally this expression referring to a suit was not there in Section 11 of the old Rent Act of 1948 & it is necessary to observe that difference.

15. I proceed, therefore, to deal with the facts. I propose to deal with the fact first under Section 11 of the Rent Act, 1948, which is the law which in my opinion should be applied to this suit. I will also thereafter deal with the facts on the basis even of Section 12 of the Act of 1950 because I am of the view that the pltfs. have made good their claim on either ground.

16. I will first deal with the question as to how far the pltf. has succeeded in proving bond fide requirement for his own occupation. (After discussing the evidence, the judgment proceeded) I see, therefore, nothing unreasonable in the pltfs. saying that he bona fide or reasonably requires the house for building & rebuilding.

17. Elaborate argument has been addressed to me as to what is the meaning of 'building' & 'rebuilding' & as to when extensive repairs could come within the meaning of rebuilding. Cases based on the provisions of the Settled Land Act dealing with the interpretation of building & rebuilding used in that Act have been quoted to me-- In re Legh's Settled Estate, (1902) 2 ch. 274 : (71 L. J. ch. 668); In re Lord Gerard's Settled Estate, (1893) 3 ch. 252: (63 L. J. ch. 23) ; In re De, Teissier's Settled Estates, (1893) l ch. 153 : (62 L. J. ch. 552); In re Wright's Settled Estates, (1900) 83 L. T. 159 & In re Windham's Settled Estate, (1912) 2 ch. 75 : (81 L. J. ch. 574). And what is more Mr. B. C. Mitter for the deft. tried to suggest that the Ct. of Appeal in Bhulan Singh v. Ganendra, : AIR1950Cal74 has decided that there must be a complete demolition of an entire building before there can be any case of building & rebuilding. I have no hesitation in saying that Mr. B. C. Mitter has completely misread & misunderstood the judgment of the Ct. of Appeal & I do not read the judgment of the Ct. of Appeal as laying down such a principle. I think a working test should be applied here. & in my view to rebuild might mean to pull down entirely but may also mean rebuilding some portion & repairing the rest. Repairing in my view will not ordinarily be either building or rebuilding but it is quite in the fitness of things if the repairs are so extensive & fundamental as in the facts of the case before me where in a building about a hundred years old, the walls & the floors are all cracked, where the steps are all broken, & the ground floor has sagged so heavily that it has to be temporarily supported by pillars from collapsing that I have no hesitation in holding that such extensive repairs such as those I am satisfied are necessary in this case should certainly come within the meaning of 'rebuilding' under the statute.

18. The cases I have been referred to & which I have just mentioned are all cases arising under the Settled Lands Acts in England & are in my view not helpful for the purpose of the present enquiry before me. They are concerned with the interpretation of 'building' & 'rebuilding' in the special context of these Acts where the words 'building' & 'rebuilding' are used along with words like 'additions', alteration' & 'improvements'. The observations of Lindley L. J. in Re Lord Gerard's Settled Estate, (1893) 3 ch. 252 at pp. 257-8 : (63 L. J. ch. 23) show how the special context & purpose of Settled Land Acts lead to special interpretation of the words 'building' & 'rebuilding'. Bur-rough's work 'Judicially defined Words & Phrases' conveniently collects the different meanings attributed to those words 'building' & 'rebuilding' in Vol. 1, pp. 346-356 under different Acts lake Settled Land Acts, Metropolitan Buildings Act, Finance Act, Prescription Act, Burial Act, Gasworks Act, Income-tax Act, Land Clauses Consolidation Act, London Building Acts, Public Health Acts etc. In my judgment, these authorities & decisions cannot determine the interpretation of the words 'building' & 'rebuilding' as used in the Rent Act of 1948 or 1950. I consider it a principle that the interpretation of a word used in the context of one statute cannot & should not be applied to the same word used in a different context in different statute passed for a different purpose. The context & purpose of an Act help to determine the meaning of the words used in the Act & the words & their interpretation should not be understood divorced from such context & purpose. In other words, if there is an interpretation of the same word used in another Act of similar purpose & in similar context such interpretation may only act as an useful aid but not otherwise.

19. The interpretation of the words 'building' & 'rebuilding' should, in my view, be such in this case as is inconsistent with the purpose & context of the Rent Acts of 1948 & 1950. In the light of the scheme & purpose of the Rent legislation one test by which to define 'building' & 'rebuilding 1 is this that it should be of such a nature that it will require displacement of the tenant. In other words, the 'purpose' of 'building' or 'rebuilding' within the meaning of the Rent legislation must be of such a nature as cannot be carried out if the tenant remains in occupation of the premises under consideration. This, in my judgment, provides a sufficient standard & working test by which the words 'building' or 'rebuilding' are to be understood under the Rent Act of 1948 or 1950. If there fore repairs so extensive & fundamental in character as for instance in this case where the very foundation on which the ground floor rests have to be reconstructed, where the very walls which have become cracked & moist have to be thrown down & rebuilt that they cannot be carried if the tenant remains in possession then it becomes a case in my opinion of 'building' or 'rebuilding' within the meaning of the statutes. I dissent entirely from the view that ordinary repairs can at all come within the meaning of the words 'building' or 'rebuilding' under the Rent Acts.

20. On this evidence before me in this case I hold that the pltfs. bona fide or, reasonably require the premises in suit both for the purpose of building & rebuilding & for their own occupation. I accordingly answer the first issue in the affirmative.

21. Before I leave this issue, I will only refer to the new Act which in an explanation intended to be a guide for the Ct. in determining the reasonableness of the requirement for purposes of building & rebuilding provides :

'The Ct. shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation' & to 'and in determining the reasonableness of requirement for occupation regard should be had to the comparative advantage or disadvantage of the landlord or the tenant.'

22. Therefore, I will record first a finding so far as reasonable requirement for occupation is concerned in the light of the Statutory Explanation. What is the comparative advantage or disadvantage of the landlord or the tenant in this case? The present disadvantage of the landlord I have discussed as elaborately as is possible. The advantage that he will get is also a matter which I have discussed as completely as possible. I will now discuss the comparative advantage or disadvantage of the tenant. [After discussing the evidence, his Lordship took up issue 2.]

23. Issue 2. -- The whole amendment was an afterthought. Originally the deft. admitted that his was a case of monthly tenancy. He was asked as to why the sole purpose of running a printing press was not included in the original written statement. He successfully evaded answering that question & when embarrassed in the box he came with the answer that he had almost retired from the business & left it for his son to explain (Qs. 85-94). He finally had to admit that the tenancy was originally not for running a printing press though ultimately he removed the printing press there & that he says with the consent of the landlord (Q. 99). Removal of the printing press with the consent of the landlord does not, in my mind, convert the tenancy into a lease for manufacturing purposes. He took the premises on rent in 1933 & the printing press was not removed till 1936. Obviously, the conclusion is that it was an ordinary monthly tenancy to start with. Even the solicitor's letter written on his behalf in answer to the pltf's solicitor's notice to quit the case made out was of monthly tenancy (see his answer to questions 105-115). The son however, does not come to explain the cause of this omission. A last minute & rather desperate attempt was made to prove that the premises in suit are used for manufacturing purpose first by producing an agreement with Electric Supply Corporation & then by some correspondence pending suit to show that it is to be regarded as a factory. In my judgment that does prove that the tenancy was taken for manufacturing evidence. On the evidence, therefore, I hold that the terms & purpose of the deft's tenancy was nothing else than those of an ordinary monthly tenant.

24. I shall next deal with the issue as to whether the deft. has violated any terms of such monthly tenancy. Unless there is any special contract, & there is none in this case, the ordinary incidents, rights & liabilities of a landlord & tenant are to be found in Section 108, T. P. Act. The argument for the pltfs. is that the deft. has committed breach of Section 108(m), T. P. Act inasmuch as the deft. has not kept the property in as good a condition as it was when he was put in possession subject to reasonable wear & tear or irresistible force. After the deft's Engineer's (Probodh Chandra Chatterjee's) admission in answers to questions 366-371 it cannot, in my opinion, be said that the demised premises have been kept in as good a condition as it previously was. Kashinath's evidence tries to suggest that it is in the same condition. But he is a witnesss as I have said elsewhere who cannot be relied upon. The evidence of Kishorilal Basak which I accept definitely proves that the condition has been damaged. The evidence of Engineers called on behalf of the pltf. supports the same conclusion. On these materials I hold the deft. committed breach of the provisions of Section 108(m), T. P. Act. On the same materials & on the evidence of the way the property has been used it must also be held in my opinion that the deft. committed acts destructive or injurious to the property, & the deft. has, therefore, committed breach of Section 109(o), T. P. Act. I, therefore, answer issue 2 (a) accordingly. The result of this finding is that the deft. is not entitled in any event to any protection under the Rent legislation.

25. The deft's. son who followed the deft. in giving evidence is the most unreliable wit-ness who has appeared in this case. (After discussing his evidence, his Lordship took up issue 3, and proceeded :)

26. Issue 3.--On the evidence, I am satisfied that the deft. has caused damage & the damage is caused by running the printing press & by storing heavy barrels which have caused cracks & have damaged the walls & floors. I accept the evidence of Nepal Chandra Dutt & Probodh Chandra Bhattacharjee the engineers of the pltf. as against Probodh Chandra Chatterjee, the engineer of the deft. On this point there has been, however, no details of the estimate of the damage. Nepal Chandra Dutt says that he enclosed an estimate giving particulars but the pltf. says that he did not get them nor does the report of Nepal Chandra Dutt say that he enclosed any details of the estimate. On the question of the details of the estimate, however, he was not cross-examined by Mr. B. C. Mitter learned counsel for the deft. I will only proceed so far as this question of damage is concerned on the basis of the figure given by the deft's own engineer for the ground floor which is Rs. 4,000. Reference or a further enquiry as to damages at this stage will mean unnecessary costs of litigation. I will, therefore, assess the damage under this issue at Rs. 4,000 on the basis of the evidence of the deft's own engineer.

27. Issue 4. -- The answer to this issue naturally follows from my finding that it is an ordinary monthly tenancy & I hold that the deft's. tenancy was validly determined by the notice to quit dated 25-5-1949.

28. Issue 5 -- Reliefs follow as a matter of course. In the circumstances there will be judgment for possession of the ground floor of premises 88/2, Wellesley Street, Calcutta as claimed in prayer (a) of the plaint & there will be mesne profits at the rate of rent from 1-7-1949 until delivery of possession

29. There will be a decree for damage for Rs. 4,000 as damages & for costs. Certified for two counsel.