JUDGMENT
P.B. Mukharji, J.
1. This is a suit by the plaintiff against the defendant for recovery of premises No. 7/3A, Gopal Chandra Lane, Calcutta, for the sum of Rs. 318.12-0 as rent in arrears, profits at the rate of Rs. 3-9-0 per day from 1-8-1949 until possession and interest and costs. The suit was filed on 31.6-1949. At the time when the suit was filed the West Bengal Premises Rent Control (Temporary Provisions) Act of 1948 was in force.
2. The claim in the suit proceeds on the basis that the defendant was a monthly tenant in respect of the said premises at a rent of Rs. 106-4-0 per month. It is said that the defendant failed and neglected to pay or deposit rent of the said premises for, the months of May, June and July 1949, and, therefore, by reason of Section 12 (3) of Act of 1948 the tenancy came to an and ipso facto.
3. The written statement in this suit was filed on 13-12-1949, and the main defence is that there was an agreement between the plaintiff and the defendant to excuse or waive the defaults on the ground of settling a higher rent.
4. Mr. A. S. Huq learned counsel appearing for the defendant, raises the issue that the defendant is entitled to the relief under Section 18 (5), West Bengal Premises Rent Control (Temporary Provisions) Act of 1950.
5. It is to be understood that Mr. Huq abandons the plea taken in Para. 2 of the written statement and he does not raise any issue as to whether there was any agreement to excuse or waive the default as pleaded in para. 2 of the written statement of the defendant. Mr. Huq admits the allegations in the plaint and no evidence, therefore, has been given in this case.
6. Mr. Huq also does not take any point under Section 16 of the Bent Act of 1950 to challenge the jurisdiction of this Court. He has only confined himself to a claim for relief under Section 18 (3) of the new Act of 1950.
7. His submission is that Sub-section (5) of Section 18 of the Act of 1950 applies to pending cases such as the one before me. His initial difficulty lies in the question whether this suit is a “suit for ejectment of a tenant,” within the meaning of Sub-section (5) because it is that class of suit to which this sub-section applies if the suit happens to be pending. Before Section 18 (5) can apply to this suit the first condition to be satisfied is that the suit must be “for ejectment of a tenant.”
8. Section 2 (11) of the new Act of 1950 defines a tenant as the person by whom rent is or but for a special contract would be payable and includes any person who is liable to be sued by landlord for rent. Mr. Huq contends that the defendant is a tenant by reason of the expression “any person who is liable to be sued by landlord for rent.” It is necessary to examine therefore whether the defendant in this case answers the legal definition of a tenant. The definitions of “landlord” and “tenant” under the Act of 1950 are much narrower than those in the old Act of 1948. “Rent” is the only test provided by the new definitions of landlord and tenant under the Act of 1950. It is necessary to emphasise in that context that “rent” is a word of limited and technical import and connotation and cannot include mesne profits or damages payable by a trespasser or a tenant whose tenancy has terminated. The Legislature has made a conscious and deliberate departure from the old statute of 1948 which expressly included within the definition of a tenant a person whose tenancy had expired. Not to include such a person now means that the present Act does not intend to bring such a person within the meaning of the new Act of 1950. It is, therefore, not possible in my view under the Act of 1950 to include an ex-tenant as a tenant as for instance was done by the Privy Council in Karnani Industrial Bank Ltd. v. Satya Niranjan, 32 C. W. N. 1093 : (A.I.R. (15) 1928 P.C. 227) under the old Calcutta Rent Act of 1920, where the definition of a tenant though not exactly in similar terms with the present Act of 1950 was narrow enough. In my opinion it is a rule of construction of a statute when the Legislature has deliberately and, consciously departed from the language of an existing Act which is being replaced by eliminating the words “and includes …. a person continuing in possession after the termination of a tenancy in his favour” it must be hell that such exclusion should be effective and a person continuing in possession after the termination of tenancy in his favour is not to be regarded as a tenant. To hold otherwise and to accept a construction which brings in again such an ex-tenant will in my opinion be to nullify the whole object of the alteration in language. That is not in my view a justified course to adopt nor a proper method of construction. The other reason why such a construction is not permissible in the present context is that whenever a statute affects pending proceedings a strict construction is to be adopted bearing in mind the principle of presumption that a pending proceeding is not ordinarily to be affected and when it is affected by a statute the statute must be confined to the limits that it has itself laid down and the pending proceeding will only be affected to the precise extent and precise limits prescribed by the statute and no more. For these reasons I am not prepared to give an extended definition to the word “tenant” in Section 18 (5) of the Act of 1950 in a pending action so as to include an ex-tenant. It is needless for me to point out that neither of these two considerations were present before the Privy Council in Karnani Industrial Bank Ltd. v. Satya Niranjan, 32 C. W. N. 1093 : (A. I. R. (15) 1928 P. C. 227). In that case the Privy Council had not to consider either a pending proceeding or alteration of language by the Legislature.
9. Having regard to the language of Sub-section (5) of Section 18 of the Act a suit for ejectment which is pending on the date when the Act comes into operation cannot by any magical formula convert the defendant into a tenant who was either not a tenant under the old law or cannot be considered as a tenant under the new law. The Act does not say that all such defendants are to be considered as tenants ? The question is, can such a defendant by any process of construction be regarded as a tenant ?
10. Now what is the position ? The defendant in this case was sued by reason of the provision of Section 12 (3) of the Act of 1948 without being served with any notice to quit. It is necessary, therefore, to see what the Act of 1948 said about such a defendant. A reference to Section 12 (3) of the old Act of 1948, will make it quite clear that when the interest of the tenant is determined ipso facto by reason of the provision contained therein “he shall no longer be deemed to be a tenant.” In this particular case, therefore, such a person cannot even be regarded as a tenant under the old Act of 1948 which had had a much wider definition of a tenant than the present Act. Under the Act of 1948 a tenant included the person who continued in possession even after the termination of tenancy in his favour. It is because that by such an extended definition, a tenant whose tenancy was terminated ipso facto by Section 12 (3) of the old Act could be regarded as a tenant, that the Act of 1948 expressly said with a view to avoid such consequence that such a tenant would not be deemed to be a tenant. Therefore in that view of the matter, the defendant was not a tenant under the old Act of 1948, when the suit was instituted or even a day before the present Act of 1950 came into operation. Could the defendant be regarded as a tenant under the new Act of 1950 ? The defendant in this case is not a person by whom “rent” is or but for a special contract would be payable within the meaning of Section 2 (11) of the Act of 1950. The expression “rent is” means a present and continuing liability to pay rent at the date when the Act comes into operation. The defendant in this case is not such a person when the Act came into force. The prayer in the plaint for the arrears of rent does not make him a tenant under Section 2 (11) of the new Act in the facts of the present case when it is remembered that he was not a tenant under Section 12 (3) of the Act of 1948. The present liability to pay rent should not be confused with the liability to pay arrears of rent which are sued for as past debt under the provisions of Section 12 (3) of the Act of 1948 which expressly deprived him of the status of a tenant. If it was the intention of the Act of 1950 to include as a tenant a person who was expressly declared by the Act of 1948 not to be a tenant then I would require clear and express provision on the point and cannot make such a person a tenant by operating the definition of Section 2 (11) of the Act of 1950 and by implication of construction of such a definition. I would therefore also distinguish on this point the Privy Council decision to which I have already referred.
11. He cannot in the facts of this case even come within the expression “person who is liable to be sued by landlord for rent” because he was not sued when the Act came into force but had already been sued. Here also liability must be present and continuing when the Act comes into force. Even then he might have become tenant if the present Act of 1950 said that such a person would be regarded as a tenant under the new Act of 1960, but there is no such provision in the new Act.
12. In the circumstances although there is a prayer in the plaint for arrears of rent that does not make the defendant a tenant under the new Act within the meaning of Section 2 (11) of such Act for the purpose of Section 18 (5) of the Act of 1950 relating to pending proceedings.
13. Section 2 of the new Act of 1950 opens with the expression “unless there is anything repugnant in the subject or context”, the words will have the meanings assigned to them by the definitions contained in the various sub-sections of Section 2. I was prepared by reason of this expression to give a different meaning to the word ‘tenant’ under Sub-section (5) of Section 18 of the Act than what is contained in the actual definition under Section 2 (11), if I was convinced that to apply the meaning given under Section 2 (11) of the Act to the word “tenant” will be repugnant to the subject or context of Sub-section (5) of Section 18 of the Act. But I have come to this conclusion that to apply the definition gives in Section 2 (11) of the Act does not create any repugnancy to the subject or context of Sub-section (5) of Section 18 of the Act. The result is that by applying the meaning given to the word tenant’ under Section 2 (11) the class of pending suit for ejectment intended to be affected by that subsection is where the tenant was a tenant within she definition of the old Act of 1948 including even a statutory tenant or a tenant who continued in possession even after the termination of tenancy in his favour but not a person whom the Act of 1948 itself said was not to be regarded as a tenant. It must be remembered the landlord acquired a very valuable right under Section 12 (3) of the old Act of 1948 and a pending action based on such right cannot be whittled down and affected except by clear words or by the most necessary implication. I find neither in the Act of 1950 to come to that conclusion.
14. Therefore I can apply the definition contained in Section 2 (11) of the Act to the context of Sub-section (5) of Section 18 without creating any repugnance to the subject or context under consideration. I, therefore, hold that where there is a suit pending for ejectment against a person who is not regarded as a tenant either under the old Act of 1948 or the new Act of 1950 such a suit does not come within the operation of Sub-section (5) of Section 18 of the Act.
15. It has been settled by the highest authorities that if an Act intends to affect pending proceedings it must do so in the clearest possible terms and the degree of its effect on pending proceedings must be strictly confined to the limits that the statute intended by the use of clearest words and expressions. The reason for such a rule of construction is clear and that is that pending actions relate to vested rights. It is a presumption that vested rights will not ordinarily be allowed to be affected except by clear words or by the most necessary implication. Sub-section (5) of Section 38 of the Rent Act of 1950 certainly uses clear words to affect pending actions but care must be taken to see what particular type or class of pending actions was
intended to be within the operation of that sub-section. In construing Sub-section (5) of Section 18 of the Act of 1950 the consideration must be borne in mind that the statute will not be presumed or intended to apply to pending actions except to the extent and manner clearly specified and laid down by the words of the Statute. The extent and manner that can be gathered from a consideration of Sub-section (5) of Section 18 are first that the pending action must be a suit for “ejectment of a tenant”. That is one of the essential conditions which must be satisfied in a pending action before there can be any application of Sub-section (5) of Section 18 of the new Act of 1950. I am of the opinion that the present suit does not satisfy that condition.
16. In my opinion the defendant in this case does not answer that description of “tenant” contemplated by Sub-section (5) of Section 18 of the Act of 1950 and he is, therefore, not entitled to any relief thereunder.
17. Mr. Huq does not take any other point. Mr. Huq also admits arrears of rent to be Rs. 318-12-0 as mentioned in the plaint.
18. Therefore there will be judgment for the plaintiff for possession and mesne profits at the rate of rent from 1-8-1949 until possession and judgment for Rs. 318-12-0 and costs. The judgment will carry interest at the rate of 6 per cent. par annum on the sum of Rs. 318-12-0.
19. I express no opinion in this casa as to whether the words “trial Court” includes High Court.