P.N. Mookerjee, J.@mdashThis appeal is by the Plaintiff and it arises out of a suit for ejectment which was decreed by the trial court after striking out the defence to the Plaintiff''s claim for ejectment u/s 14(4) of the Rent Control Act of 1950, but which decision has been set aside on appeal and the case remanded for re-hearing of the merits. The learned Subordinate Judge who heard the tenants'' appeal from the trial court''s decree for ejectment has held that the tenants'' defence to the Plaintiff''s claim for ejectment was improperly rejected by the trial court u/s 14(4) of the Rent Control Act of 1950 which, according to the learned Subordinate Judge, had no application to the present case. In this view of the matter, the decree for ejectment, passed by the trial court, has been set aside and the suit has been remanded to the original court for fresh hearing according to law after giving an opportunity to the Defendants to contest the Plaintiff''s claim. From this appellate decision the present second appeal has been preferred by the Plaintiff.
2. The relevant facts are not in dispute and they may be shortly stated as follows:
On December 4, 1951, the present suit for ejectment was filed by the Plaintiff for evicting the Defendants from premises No. 49, Motijhil Avenue, Dum Dum. In the suit, ejectment was claimed on the ground of default in the payment of rent and also on other grounds, for example, bona fide requirement for the Plaintiff''s own use and occupation, etc., under the Rent Control Act, 1950. The suit was contested by the Defendants who filed their written statement on March 24, 1952. On March 31, 1952, the Plaintiff applied for an appropriate order u/s 14(4) of the Rent Control Act, 1950, alleging that the Defendants had been making defaults in the payment of rents from October, 1951. To this there was a rejoinder by the tenant-Defendant No. 1, on April 10, 1952, that only the rent for March, 1952, was due. On June 12, 1952, the court recorded the following order:
Both parties ready. Petition u/s 14(4) is taken up for hearing. Heard pleaders of both sides who agree that previous rents having been deposited the rents from June, 1952 at the rate of Rs. 100 per month are to be deposited in this Court.
Ordered
That the defandant do deposit future rents in this Court month by month at the rate of Rs. 100 per month from June, 1952 by the 15th of each of the next following month. In default, the defence against ejectment shall be struck off.
3. The rent for June, 1952, was duly paid, but there were defaults in the payment of subsequent rents and, on November 14, 1952, the defence to the Plaintiff''s claim for ejectment was struck off. Thereafter, the suit came up for hearing on December 9, 1952. It was heard ex parte and an ex ''parte decree for ejectment was passed by the trial court. The Defendant No. 1 appealed from this decree and, in the lower appellate court, the real point that was taken on his behalf was that, having regard to the nature of the plaint, the present suit was clearly a composit suit for ejectment on various grounds, including the ground of default, and to such a suit Section 14(4) of the Rent Control Act of 1950 can have no application. This contention was accepted hy the lower appellate court and the necessary consequence was that the order of the trial court, striking off the defence, to the Plaintiff''s claim for ejectment under the provisions of that section, was held to he without jurisdiction and, accordingly, the case was remanded to the trial court for fresh hearing, as stated above.
4. In support of this appeal, Mr. Sen, appearing for the Plaintiff-Appellant, has raised three contentions.
5. In the first place, Mr. Sen has contended that the order u/s 14(4). of the Rent Control Act of 1950, passed by the court in this case on June 12, 1952, was really a consent order and that, accordingly, it will have full effect, even apart from Section 14(4) of the Rent Control Act. With this argument I am unable to agree. The upmost that can be said from the order, as recorded by the court, is that the parties agreed that there were no arrears and that the future rents would be deposited by the Defendants in court. The provision, however, in the order, viz., that such future rents will have to be deposited within the 15th of the next following month or that, in default of such deposit, the written statement would be struck off, was not by consent. It was really an order by the court in the exercise of its statutory powers u/s 14(4) of the Rent Control Act of 1950. In this view of the matter, I reject the first submission of Mr. Sen in support of this appeal.
6. Mr. Sen next contends that, although the ejectment suit was on the ground of default and on other grounds as well, the court had ample jurisdiction to strike off the defence u/s 14(4) of the Rent Control Act of 1950. In effect, Mr. Sen contends that Section 14(4) or, for the matter of that, Section 14 itself, is not confined to suits for ejectment on the ground of default alone, but covers also ejectment suits of a composite character, where the ground of default is mentioned as one of the grounds for ejectment. Mr. Sen is quite alive to the fact that a Division Bench of this Court has expressed the contrary view in the case of Moulavi Miah v. Sashanko Mohan Guha (1953) 57 C.W.N. 300(decided on February 3, 1953, by Lahiri and Guha, JJ). But he submits that the said Division Bench has not taken the correct view of the law and, in any event, a different opinion appears to have been expressed by the earlier Division Bench in the unreported case of Ujir Ali v. Sashanka Mohan Guha Civil Revision Case No. 1486 of 1952, (judgment delivered on January 15, 1953, by Chakravarti C.J., and Sinha, J., unreported). Mr. Sen also submits that the Full Bench of this Court in
7. Having given the matter my best consideration, I am unable to accept Mr. Sen''s contention. Apart from all other questions, purely as a matter of construction, Section 14 properly construed, can bear only one interpretation, viz., that it covers only suits for ejectment of one particular type, viz., suits in which the only ground for ejectment is default in the payment of rent. That this is so becomes amply clear and practically incontrovertible when we turn to Sub-section (3) of that section. That section provides that if, within the time fixed by the court, the tenant deposits the sum, calculated by it on account of arrears of rent and interest and cost as contemplated in Sub-section (1), the suit so far as it is a suit for recovery of possession of the premises shall be dismissed by the court. The suit, referred to in this Sub-section, is obviously the suit mentioned in Sub-section. (1). It is inconceivable, and indeed, it seems absurd too,-that a suit, in which there are grounds for ejectment other than the ground of default will be dismissed merely on deposit of arrears of rent and interest and cost without consideration of the other grounds mentioned by the Plaintiff. In my view, having regard to Sub-section. (3), Sub-section. (1) of Section 14 can be interpreted as covering suits for ejectment only on the ground of default in the payment of rent, or, as it is usually called, "on the ground of default" alone. This was also the view taken by the Division Bench of this Court in Moulavi Miah v. Sashanko Mohan Guha (1953) 57 C.W.N. 300, and, as I respectfully agree with that view of the law, I have no hesitation in following the same. I may also add that, in my opinion, the point is really concluded against the Appellant by reason of the decision of the Full Bench. But, even assuming that it is not, the Appellant''s position would not materially improve. There is little doubt that the Full Bench did express an opinion on this point which is counter to Mr. Sen''s submission and that expression of opinion cannot be lightly disregarded.
8. In delivering the majority judgment of the Full Bench, Chakravartti, C.J., made inter alia the following observations, very pertinent to the present question:*
*Page 12 of 57 CW.N. 252 of ILR (1954) 2 Cal.
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 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).
9. The Full Bench then authoritatively ruled that Sub-section (4) of Section 14 had reference only to suits contemplated in Sub-section (1) of the section, by interpreting the word "the" in the phrase "the suit" occurring in Sub-section (4) assobviously implying a reference back to Sub-section (1). The contrary view, appearing in Joytindra Nath Mitra v. Sourindra Nath Dwtta (1960) 55 C.W.N, 123, was expressly overruled and then followed some further observations which may be usefully quoted here as follows:
Sub-section (1) is not speaking of suits for ejectment in general but speaking of one particular type of suit, namely a suit for recovery of possession 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".*
*Page 14 of
10. The extracts quoted plainly indicate that the Full Bench accepted that Sub-section (1) of Section 14 had reference to only one type of ejectment suits, namely, those on the ground of default alone. The Full Bench no doubt recognised that, in suits, contemplated under either of the two Sub-sections (1) and (4), there might also be claims other than the claim for ejectment but what, is important is that it expressly held that the only type of ejectment suits which came within the scope or ambit of the said two Sub-sections,-or, for the matter of that, of the entire Section 14, read as a whole, was a suit on the ground of default alone.
11. In the above view of the matter, I would hold that, on the present question, the Full Bench decision is a direct authority against the Appellant But, even assuming that the point did not strictly arise before the Full Bench and its observations were merely obiter or in the nature of obiter dicta, they are, even as such obiter dicta, emanating as they do from a Full Bench of this Court, entitled to the highest respect. And, as my own view of the law agrees with those observations and with the decision of the Division Bench of this Court in Moulavi, Miah v. Sashanko Mohan Guha (1953) 57 C.W.N. 300, I am bound to overrule the contrary submission of Mr. Sen.
12. In passing, I may add that the other Division Bench decision (Chakravartti, C.J. and Sinha, J.) to which reference was made by Mr. Sen, viz., in the case of Ujir Ali v. Sashanko Mohan Guha Civil Revision Case No. 1486 of 1952, although it contains, some unfortunate observations which might, at first sight, support Mr. Sen''s submission, can no longer be relied on as precedent or authority, it having been recalled later on by the learned Judges themselves.
13. In Ujir Ali''s case the original decision was given ex parte in the absence of the tenant-Petitioner who, thereafter, appeared and succeeded in having the same set aside and the Civil Revision Case restored to file. The Revision Case was eventually heard by Guha Ray, J., and myself and, in our judgment, dated May 6, 1953, we took the same view of the scope and ambit of Section 14 and of the Full Bench (3) as our learned brothers, Lahiri and Guha, JJ. (1). Ujir Ali''s case Civil Revision Case No. 1486 of 1952 therefore, is really against Mr. Sen''s contention and is another authority, or, at least, another precedent, against his client.
14. I am also reluctant to hold that the learned Chief Justice, who delivered the majority judgment of the Full Bench (3) and made the observations which I have quoted above, meant to lay down a different law or express a contrary view, while presiding over a Division Bench only a few months later. The observations in Ujir Ali''s case Civil Revision Case No. 1486 of 1952 were certainly not intended to affect the clear expression of opinion on the scope and ambit of Sub-sections (7) and (4) of Section 14 of the Rent Control Act of 1950, as contained in the Full Bench case and I would not give them such an unreasonable interpretation.
15. I accordingly, overrule also the second submission, made by Mr. Sen in support of this appeal.
16. Lastly, it was argued that, as the tenant-Defendants did not move against the order u/s 14(4), passed on June 12, 1952, they must be held to have accepted that order and, in any event, they must in law be held bound by that order and should not be allowed to reopen it at the appellate stage. There is one short answer to this submission of Mr. Sen. u/s 105(2) of the Code of Civil Procedure, that order was clearly open to challenge in an appeal from the decree and that is what has been done by the Defendants in this case. The argument of Mr. Sen that the said order, dated June 12, 1952, was not an order under the CPC and to it Section 105(1) of the Code should not be attracted cannot obviously be accepted. The court trying the ejectment suit was certainly passing its orders and its decree under the Code of Civil Procedure, although those orders and the decree had also to comply with the relevant provisions of the Rent Control Act and had to be made in accordance and in conformity with the said provisions too. Section 14(4) no doubt empowers the court to pass the order, contemplated by that provision, and creates certain rights and obligations between the parties to the suit, viz., the landlord and the tenant, but, at the same time, it is clear that the order which the court passes is an (5) judgment of P.N. Mookerjee and Guha Ray, JJ., delivered on May 6, 1953, unreported order under the Code of Civil Procedure, according to which suits for ejectment, like other suits, are tried by the Civil Courts. If authority is needed for this view it is to be found in
17. In the result, all the points, urged in support of this appeal, fail and the appeal is dismissed. But, having regard to the circumstances of this case and the nature of the questions involved, I would direct the parties to bear their own costs in this Court.
18. As the suit for ejectment was instituted as far back as December, 1951, it is desirable that the re-hearing of the suit by the trial court should be as expeditious as possible and the learned Munsif will take appropriate steps in that behalf.
19. As the appeal fails on the merits, the alternative application u/s 115 of the CPC will also fail. It is, accordingly, dismissed but there will be no order for costs.
