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PETITIONER: RANJIT CHANDRA CHOWDHURY

       Vs.

RESPONDENT: MOHITOSH  MUKHERJEE

DATE OF JUDGMENT: 17/03/1969

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAMASWAMI, V. MITTER, G.K.

CITATION:  1969 AIR 1187            1970 SCR  (1)  16  1969 SCC  (1) 699

ACT: West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950), ss. 12(1) and 14(3)Scope of. West  Bengal  Premises  Tenancy Act (12 of  1956)  s.  24-If retrospective.

HEADNOTE: The agreement of tenancy between the landlord and tenant  of certain   premises provided that the monthly rent was to  be paid on or before the 7th of each month.  For the months  of September  1954 to April 1955 the rent was paid  beyond  the agreed  date.   In  August 1955, a  notice  determining  the tenancy was given but the landlord accepted rent  thereafter thus waiving the notice.  In February 1956, a second  notice determining  the tenancy was served and a suit for  eviction was  filed  on March 1, 1956, on the basis that,  since  the tenant was paying rents beyond the time fixed by contract he was in default according to s. 12(1) (1) of the West  Bengal Premises  Rent Control (Temporary Provisions) Act,  1950  by which  the proceedings were governed.  The tenant  contended that : (1) As the rent was in fact deposited by him with the Rent  Controller for every month within the prescribed  date since February 1956, the suit for recovery of possession  of the  premises was liable to be dismissed under s.  14(3)  of the  Act,  -and that the proviso to s. 14(3) under  which  a tenant  is  not entitled to the protection of  s.  14(3)  if there  was default on three occasions within a period of  18 months, did not apply to him, because, on the acceptance  of rent  in September 1955 there was a waiver of  the  previous defaults  and a revival of the dead tenancy, and  therefore, those defaults should not be counted against him; and (2) s. 24  of  the West Bengal Premises Tenancy  Act,  1956,  which repealed  the 1950-Act provided that the acceptance of  rent in respect of the period of default operated as a waiver  of the default and therefore also,, the earlier defaults should not be counted against him. HELD  :  (1) In the case of a statutory tenancy  a  landlord accepting rent does not assent to a new contractual  tenancy but  continues  the  old tenancy.   In  fact,  the  tenant’s attitude  in the present case was that the old  tenancy  was

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revived  and continued.  If that were so, the  old  tenancy, with  the defaults, continued and the landlord was  entitled to  rely  on  s.  12(1) (1) and the  proviso  to  s.  14(3). Therefore,  the benefit under s. 14(3) was not available  to the tenant. [20 E-0] Ganga  Dutt Murarka v. Kartik Chandra Das, A.I.R. 1961  S.C. 1067,  Anand  Nivas  (P) Ltd. v.  Anandji  Kalyanjis  Pedhi, A.I.R.  1965  S.C. 414 and Calcutta Credit Corpn.   Ltd.  v. Happy Homes (P) Ltd. [1968] 2 S.C.R. 20, referred to. (2)Section  24 of the 1956 Act puts an embargo on any  claim based  on  default  in payment of  rent  when  the  landlord accepts  rent  after  default.  Therefore,  it  affects  the substantive right of the landlord.  Since the section is not made   retrospective  either  expressly  or   by   necessary implication  it will only operate from the date on which  it came  into force (March 31, 1956), and hence, the tenant  in the present case could rely on it. [20 G-H; 21 A-B] 17

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 299 of 1966. Appeal  by special leave from the judgment and decree  dated August  14, 1963 of the Calcutta High Court in  Appeal  from Appellate Decree No. 1374 of 1960. B.K. Bhattacharjee, S. C. Majumdar and S. P. Mitra, for  the appellant. J.  P.   Mitter and Sukumar Ghose,for  the  respondent.  The Judgment of the Court was delivered by Hidayatullah,  C.J.  In this appeal, by special  leave,  the appellant  is the tenant of a house No.  120B,  Manoharpukur Road,  District 24 Parganas, Calcutta-29 and the  respondent is  the  landlord.  Both the tenant and  the  landlord  died after  the  institution of the suit and are  represented  by their legal representatives.  The suit was for ejectment  of the  tenant  for default in payment of rent  as  agreed  to, between the parties. The suit was dismissed by the Munsif, 1st Court, Alipur, but on  appeal  the  judgment was reversed  by  the  Subordinate Judge,  8th  Court,  Alipur whose decree  was  confirmed  on appeal  by  the learned Single Judge in the  High  Court  at Calcutta.  This appeal is against the judgment dated  August 14, 1965 of the Calcutta High Court. The  premises were rented out to the original tenant as  far back  as May 1944 on monthly rent of Rs. 130.   The  tenancy was  from  month to. month.  According to the  landlord  the rent of the premises had to be paid on or before the 7th day of  each calendar month.  According to the tenant  the  rent was to be paid as and when the sarkars came to collect it on behalf  of the landlord who employed such agents as  he  had many  other  houses rented out to other tenants.   The  High Court  and the appellate Court below have accepted the  case of  the  landlord and that is a finding with which  we  must start.  The monthly rent for eight months between  September 1954 to April 1955 was admittedly collected and paid  beyond the  period limited by the agreement.  On August 11, 1955  a notice  determining the tenancy was served on  the  original tenant  and he was asked to quit on the expiry of the  month of  August, 1955 on pain of being held liable in damages  at Rs.  5  per  day  for  wrongful  occupation  from  the   1st September, 1955.  On October 2, 1955, the original  landlord accepted  rent  upto  September, 1955 and  thus  waived  the notice  which was given.  It appears also that the  landlord accepted rent from November 1, 1955 to February 1, 1956  and

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granted receipts for the rent.  On February 9, 1956 a second notice  determining the tenancy was served calling upon  the original tenant 18 to  deliver  possession  of the premises on  the  expiry  of February, 1956.  The notice this time also added a condition that in case the original tenant overstayed in the  premises beyond February, he would be liable to damages.  The present suit  was  filed on March 1, 1956 with  the  result  already stated. In the written statement filed by the original tenant it was stated  that the original landlord had waived the  right  of forfeiture  for default upto August, 1955 when  he  accepted rent for September, 1955 and ’acquiesced’ in the continuance of the tenancy by receiving rent upto January, 1956.   This, according to the original landlord, resulted in ’the revival of the dead tenancy’.  The High Court has held that the  old tenancy   continued  between  the  parties  with   all   its advantages  and  weaknesses and that the  original  landlord was,  therefore, able to take advantage of the old  defaults and base the notice on them. In  this  appeal  it is contended that  after  the  landlord accepted  the  rent for September a new  tenancy  came  into existence  and the old defaults could not therefore be  made the  foundation  of  the second notice  to  quit.   This  is opposed    by   the   answering   respondent,   the    legal representative of the original landlord. The  matter  is governed by the West  Bengal  Premises  Rent Control  (Temporary  Provisions) Act, 1950.   It  came  into force  on  March 30, 1950.  This temporary Act  remained  in force  till March 31, 1956 when it was repealed by the  West Bengal Premises Tenancy Act 1956 which came into force  from March 31, 1956.  However, as the suit had already been filed it  continued to be governed by the repealed Act in view  of S. 4 of the new Act which states :               "that  notwithstanding the repeal of  the  old               Act any proceedings pending on the 31st day of               March, 1956 would continue as -if the said Act               had been in force." Under the old Act there was a protection to tenants  against eviction  and that was enacted in s. 12 of the old Act.   We are concerned with s. 12 (1) (1) and it reads as follows :               "12(1)   Notwithstanding   anything   to   the               contrary in any other Act or law, no order  or               decree  for the recovery of possession of  any               premises shall be made by any court in  favour               of  the landlord against a tenant including  a               tenant whose lease has expired :               Provided that nothing in the sub-section shall               apply to any suit for decree for such recovery               of possession               (i)Subject to the provisions of section 14,               where  the amount of two months’ rent  legally               payable by the               19               tenant  and due from him is in arrears by  not               having  been  paid within the  time  fixed  by               contract,  or in the absence of such  contract               by  the  fifteenth  day  of  the  month   next               following  that for which the rent is  payable               or  by  not having been validly  deposited  in               accordance with section 19."               Section 14 which is referred to here  provided               as follows               "14   (i)  If  in  a  suit  for  recovery   of

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             possession of any premises from the tenant the               landlord   would   not  ,get  a   decree   for               possession  but for clause (i) of the  proviso               to  sub-section (1) of section 12,  the  Court               shall  determine  the amount of  rent  legally               payable by the tenant and which is in  arrears               taking into consideration any order made under               sub-section  (4) and effect thereof up to  the               date of the order mentioned hereafter, as also               the amount of interest on such arrears of rent               calculated  at  the rate of  nine  and  three-               eighths per centum per annum from the day when               the  rents  became arrears up  to  such  date,               together  with the amount of such cost of  the               suit as is fairly allowable to the  plaintiff-               landlord and shall make an order on the tenant               for  paying  the  aggregate  of  the   amounts               (specifying  in the order such aggregate  sum)               on or before a date fixed in the order.               (2)Such date fixed for payment shall be the               fifteenth  day  from  the date  of  the  order               excluding the day of the order.               (3)If  within the time fixed in  the  order               under subsection (1 ), the tenant deposits  in               the court the sum specified in the said order,               the suit, so far as it is a suit for  recovery               of  possession  of  the  premises,  shall   be               dismissed  by the court.  In default  of  such               payment  the  court  shall  proceed  with  the               hearing of the suit :               Provided that the tenant shall not be entitled               to the benefit of protection against  eviction               under  this  section if he  makes  default  in               payment of the rent referred to in clause  (1)               of  the proviso to sub-section (1) of  section               12  on  three  occasions  within  a  period  of               eighteen months." The  tenant  claims the benefit of s. 14  but  the  landlord relies  upon  the proviso to sub-section (3)  quoted  above. Further  the tenant also relies upon s. 24 of the  repealing Act which is to the following effect :               "24.   When there is no proceeding pending  in               Court  for the recovery of possession  of  the               premises, the               20               acceptance of rent in respect of the period of               default  in  payment of rent by  the  landlord               from  the tenant shall operate as a waiver  of               such default." Therefore  it  is contended that the acceptance of  rent  in respect of the period of default in payment of rent under S. 12(1)  (1) in September operates as a waiver of the  default under S. 24. Mr.  Bhattacharji on behalf of the tenant contends that  the old  tenancy was dead after the notice and on acceptance  of rent  a  new tenancy came into existence.   The  other  side contends that by the acceptance of rent, the old tenancy  on the  old terms continued.  Each side has cited a  number  of rulings.  We do not consider it necessary to refer to  these rulings  or to discuss the question.  In Ganga Dutt  Murarka v.  Kartik  Chandra Das and Another(1) and  in  Anand  Nivas Private  Ltd.  v.  Anandji Kalyanji’s  Pedhi  and  Others(2) (particularly  the  first  at  page 1069)  it  was  held  in connection   with  a  statutory  tenancy  that  a   landlord accepting rent does not assent to a new contractual  tenancy

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but  continues  the  old tenancy.  In  the  Calcutta  Credit Corporation  Ltd. & Anr. v. Happy Homes (P) Ltd. (3)  ,  the subject  has been discussed in &-tail.  Under s. 113 of  the Transfer  of Property Act a notice is waived, by an  act  on the  part  of the person giving it showing an  intention  to treat the lease as subsisting, provided there is the express or implied consent of the person to whom it is given.   Here the difficulty is solved by the attitude the tenant took  in this  case.  His case was that the old tenancy  revived  and continued.   According  to him, the landlord  acquiesced  in having the old tenancy continued.  If we go by the  tenant’s own case it is obvious that the old tenancy with the default continued  and  the  landlord  was  thus  able  to  use  the provisions  of s. 12 (1) (i) against the tenant as also  the proviso  to sub-s. (3) of s. 14 of the repealed Act.   There were two consecutive defaults and in the period of 18 months there  were more than three defaults.  The benefit of s.  14 sub-s.  (1)  of  the repealed Act is not  available  to  the tenant  because  of the operation of the proviso  to  sub-s. (3).   Further  s. 24 of the new Act can hardly  assist  the tenant.  That section is not retrospective and will  operate from the date on which it came into force.  Mr. Bhattacharji claimed that it may be taken as a rule of decision or laying down  a rule of evidence but we think it impinges  upon  the substantive rights of landlord and tenants which can only be claimed  after the commencement of the Act and  not  before. The section puts an embargo on any claim based on default in payment of rent when the landlord accepts rent after default and  therefore  it  affects the  substantive  right  of  the landlords.  According to the accepted can- (1)  A. I. R. 1961 S. C. 1067. (2) A. 1. R. 1965 S. C. 414. (3)  [1968] 2 S. C. R. 20. 21 ons  of  interpretation  of statutes,  a  substantive  right cannot   be  taken  away  retrospectively  unless  the   law expressly  so states or there is a clear intendment.   There are   no  express  words  in  the  statute  making   s.   24 retrospective  and  we fail to see any intendment in  it  to apply  to cases pending on March 31, 1956 when the  new  Act came into force, and this suit was then pending.  If it  had been  merely  a matter of procedure or creating  a  rule  of decision  we might have held that the provisions applied  to the  suit,  but that is not the case here.  As we  said  the section  creates  a  change in the  substantive  rights  and therefore  must be held to be prospective in  operation  and not retrospective unless we can gather retrospectivity  from the language of the statute or by clear implication in it. There is no question in this case that the tenant was in de- fault according to s. 12 (1) (1) because he had been  paying rents  beyond the period limited by the agreement or by  the section.   These  defaults  were also more  than  three  and therefore the proviso to s. 14(3) deprived the tenant of the benefit of s. 14(1).  On the whole, therefore, the  decision of the High Court was correct and we see no reason to differ from it. The  appeal therefore fails and is dismissed but in view  of the  fact that the rent of the premises has been  paid  upto the  date of hearing and the previous defaults were only  so far  that  the rent was not paid before the date  fixed  for payment,  we  are of opinion that the parties in  this  case should  be  left to bear their own  costs  throughout.   The tenant is further granted six months’ time from the date  of this  judgment to vacate the premises.  The  tenant  further undertakes to deposit the rent as and when it falls due.

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V.P.S.         Appeal dismissed. 22