JUDGMENT
Arun Kumar Mitra, J.
1. Appellant/defendant Subhas Saha Roy has challenged the judgment and decree passed by the learned Civil Judge (Senior Division), Sealdah dated July 19, 1997 in Title Appeal No. 37 of 1996, affirming the judgment and decree passed by the learned Munsif, 1st Court, Sealdah in Title Suit No. 166 of 1982. The case as has been made out by the plaintiff in the plaint is inter alia as follows:
2. The plaintiffs father was the owner of the suit property and on 03.12.1981 the father of the plaintiff, Gobinda Lal Dutta executed one deed of gift in respect of this suit property in favour of the plaintiff and the plaintiff after accepting the deed of gift became the owner of the suit premises and the defendant was a monthly tenant at a rental of Rs. 175/- as per English Calendar month under the plaintiffs father. The defendant is a habitual defaulter and has defaulted in payment of rent from the Month of December 1980. Previously the defendant defaulted in payment of rent and as a result of which one T.S. 335 of 72 came up against the defendant where the defendant got relief under Section 17(4) of the West Bengal Premises Tenancy Act.
3. The defendant is guilty of violation of the provisions of Clause m, o, p of the Section 108 of the Transfer of Property Act and without the consent or knowledge of the plaintiff, the defendant constructed a bath room on the southern portion of the verandah of the first floor without making arrangement for passing filthy water of the bath room and the matter is causing damage to the building of the suit premises. The father of the plaintiff issued a notice to quit dated 07.11.1981 and the defendant received the notice but did not quit the suit premises and as a result of which the instant suit arose.
4. The defendant contested the suit by filing a written statement and denying the allegations of the plaintiff. The defendant contended that he tendered rent for the month of August, 1978 by money order to the father of the plaintiff who refused to accept the rent and as such the defendant deposited the rent to the Rent Controller, Calcutta. The defendant is not a defaulter, the defendant did not construct any bath room as, alleged. There was a urinal in southern side of verandah for a long time and the same was very old, the defendant required the same. The defendant further stated that the plaintiff/landlord did not supply drinking water to the defendant. The defendant also denied the service of notice to quit upon him.
5. On the above pleadings the following issues were framed by the learned trial Judge.
i) Is the suit maintainable in its present form?
ii) Is the notice to quit legal, valid and sufficient? Had it been served upon the defendant?
iii) Is the defendant defaulter in payment of rent?
iv) Is the defendant guilty of violation of the provisions of m, o, p of Section 108 of the Transfer of Property Act?
v) Is the plaintiff entitled to get a decree, as prayed for?
6. On contest, the learned trial Judge decreed the suit in favour of the plaintiff and directed the defendant to quit and vacate the suit premises within sixty days, failing which liberty was given to put the decree In execution as directed by the learned trial Judge.
7. The defendant preferred appeal against the said judgment and decree passed by the learned Munsif, 1st Court, Sealdah.
8. On hearing the learned counsel for both the parties, the learned first Appellate Court dismissed the appeal. Hence the Second Appeal.
9. Before hearing this Second Appeal let me now formulate which can be the only substantial question of law which is involved in this Second Appeal as mentioned hereinbelow : 1) Whether both the Courts below in coming to the conclusion that the defendant/tenant is a defaulter, applied proper tests of law?
10. This appeal comes out of an eviction suit. The plaint case is that one Gobindalal Dutta was the owner of the suit property and he gifted the suit property in favour of his son Sitapati Dutta, who is the present plaintiff/respondent. The said deed of gift was executed on 03.12.1981. The combined notice under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act was issued on 07.11.1981. The tenant relied on the said notice and gave a reply to the said notice on 03.12.1981.
11. Only on two grounds the eviction was sought for or the suit was filed, one is default for the period January, 1982 to April 1982 and i.e. second default, and the other ground is violation of clauses m, o, p of the Section 108 of the Transfer of Property Act.
12. Both the Courts below rejected the ground of violation of m, o, p clause of 108 of T.P. Act but both the Courts below found the defendant/ tenant defaulter and granted decree of eviction order on the ground of said default. The notice to quit was issued on 07.11.1981 and the suit was filed or the default in payment of rent for the period January. 1982 to April 1982.
13. The learned counsel for the appellant attacked the judgment and decree of both the Courts below submitting that the ground on which the eviction has been sought for must be subsisting on the date of issuance of the notice. But in this case notice was issued on 07.11.1981 and the alleged second default has been shown for a period of January 1982 to April 1982.
14. The learned counsel In support of his such contention relied on a decision reported in 1987 Vol. (2) CHN, page 436 (M/s. V. Avtet v. Mallick Zqfar Ahmed and Anr.).
15. This is a Judgment delivered by a Division Bench of this High Court and in this judgment the Hon’ble Division Bench observed that in an eviction suit the notice under Section 13(6) is a part of the cause of action and events subsequent to the notice cannot be relevant.
16. The learned counsel submitted that in this case Hon’ble Division Bench observed that post notice default is not to be, taken into consideration and it is irrelevant. The Hon’ble Division Bench in this judgment also observed that the ground must be existing on the date the notice is issued.
17. The learned counsel clarified the position by submitting that the default was a ground on which a decree was passed but the specified default, alleged was for a period which is post notice or subsequent to the notice and naturally it cannot be treated as default and on this ground the decree passed by the Courts below should be set aside.
18. The learned counsel submitted that the arrear of rent means the arrear which has been mentioned in the notice for deposit.
19. In this regard the learned counsel also relied on the judgment (Smt. Pmkash Mehra v. K.L. Malhotra).
20. The learned counsel relied on the observations made in paragraphs 6 & 7 of this judgment which are quoted hereinbelow : “6. In Second Appeal, the High Court reversed the decision of the Rent Control Tribunal and dismissed the application for ejectment upon the finding that the notice demanding the arrears of rent related to the months of April and May 1976, and as one draft had been sent on 13 May 1976 and another on 11 June 1976 representing a total of two months’ rent, and as this rent had been paid within two months of the service of notice of demand, it must be taken that the rent due at the time of the service of notice of demand had been tendered by the respondent to the appellant. The High Court proceeded on the view that Section 14(1)(a) of the Act made a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent was served on him by the landlord, the arrears being the rent due on the date of the notice. In this case, the High Court said, as the notice called for payment of the arrears due for the months of April and May 1976 and the bank drafts were tendered within the period indicated in the notice, the notice was satisfied and no default could be said to have been committed in terms of Section 14(1){a) of the Act. Accordingly, the High Court allowed the appeal and dismissed the application for ejectment.”
“7. It is urged before us by learned counsel for the appellant that Section 14(1)(a) of the Act contemplates the payment or tender of the whole of the arrears of rent legally recoverable from the tenant on the date when the demand notice is sent including the rent which has accrued after service of the demand notice. When the notice was sent on 7 May 1976, rent for the months of April and May 1976 had become due, and as two months was given for payment of the arrears, it would include also the rent which had accrued during the said period of two months. We are not satisfied that there is substance in the contention. The arrears of rent envisaged by Section 14(l)(a) of the Act are the arrears demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand. In this case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice of demand. The High Court is rightly in the view taken by it. We are not satisfied that the construction placed by B.C. Mishra. J. in Jag Ram Nathu Ram v. Surlnder Kumar S.A.O. No. 52 of 1975 decided on 28 April, 1976 (Del) and in S. L. Kapur v. Dr. Mrs. P.D. Lal 1975 CJ 322 (Del) lays down the correct law on the point.”
21. The learned counsel submitted that the Hon’ble Apex Court made it very clear that arrear of rent cannot be post notice and as such in the instant case the arrear of rent alleged or mentioned in the judgment of both the Courts below which is post notice cannot be termed as arrear and both the Courts below in this regard went on misconstruction of the statutory provision.
22. On the same principle the learned counsel relied on a judgment of one learned single Judge of Bombay High Court in Uttam Gatama Shah v. Kanti Lal G. Shah reported in 1986 Vol. (2) All India Rent Control Journal, Page-169.
23. The learned counsel submitted that on the date of notice there was one default but both the Courts below wrongly interpreted the law and declared the tenant/defendant as guilty of second default and granted decree of eviction.
24. The learned counsel submitted that the judgment and decree passed by both the Courts below should be set aside.
25. The learned senior counsel for the respondent submitted that analogy need not be derived from another statute and one cannot draw analogy of Section 13(3A) of the West Bengal Premises Tenancy Act to establish the default clause or to clarify the default clause.
26. The learned senior counsel for respondent placed reliance on a decision reported in 56 CWN, page 528 (Amal Krishna Basu and Ors. v. Chandi Charan Banerjee).
27. In this judgment the learned single Judge of this High Court when considering the calculation of 18 months for the purpose of interpreting the proviso to Section 14(3) of West Bengal Premises Rent Control Act of 1950 observed in the manner as follows : “On these considerations I have come to the conclusion that the correct position in law is that the period of 18 months that is to be considered for the purpose of proviso to Section 14(3) of the West Bengal Premises Rent Control Act is the period of 18 months preceding the date of the institution of the suit.”
28. The learned senior counsel for the respondent then submitted that the position of law is that the ground on which eviction has been Sought for must be present on the date of institution of suit and not on the date of issuance of the notice for eviction as submitted by the learned counsel for the appellant.
29. The learned counsel for the respondents further submitted that both the learned Courts below rightly held that the defendant/appellant being a tenant is the defaulter and rightly granted the decree of eviction in the ground of second default.
30. Let me now consider the entire perspective of this Second Appeal and or the eviction suit out of which this Second Appeal arose.
31. The notice was issued by the father of the plaintiff on 01.11.1981 and the suit was filed by the son being the transferee/landlord (suit property being gifted by the father on 03.12.1981) on 21.04.1982. Both the Courts below observed that the tenant/appellant is a defaulter since he defaulted in payment of rent for the period from January, 1982 to April 1982.
32. It does not require mentioning that on the basis of the notice issued by the transferor landlord, transferee landlord can file the suit and it is settled position of law. Now the dates are very relevant. The notice was issued on 01.11.1981 and default was accepted by the Courts below for the period January 1982 to April 1982 i.e. post notice default. In this respect I respectfully agree with the judgment delivered by the Hon’ble Division Bench of this High Court reported in 1987(2) CHN (supra) that post notice default is totally irrelevant and in fact after the issuance of the notice when the tenancy is determined, the tenant becomes a statutory tenant and he does not have a deposit rent. What the tenant deposits after the determination is an amount equivalent to rent. It is also a settled position of law that a notice for eviction is mandatory and is a part of cause of action and in that view of the matter the relevant or exact date from which the default can be calculated is not the date of institution of this suit but the date of issuance of notice. In this case it is clear and apparent that the default which has been considered by both the Courts below is post notice default which cannot be termed as default at all.
33. It is a fact that earlier to this suit one other suit was filed and there the tenant deposited the arrear of rent and got protection of Section 17(4) of the West Bengal Premises Tenancy Act. Both the Courts below accepted the said default as first default and the default calculated in this suit is second default and naturally, on the ground of second default both the Courts below granted the decree in favour of the landlord /plaintiff. But both the Courts below went on wrong and misinterpreted the provision of the statute by taking into consideration or by calculating the arrear of rent due for the period which is post notice. In that view of the matter this post notice default cannot be termed as default. No question of second default arises and the grant of decree on the ground of second default also falls on the ground.
34. Insofar as the violation of m, o. p clause is concerned, both the Courts below considered and decided that no violation has been made by the appellant/tenant in terms of clauses m, o, p of Section 108 of the Transfer of Property Act.
35. Considering such situation and considering the position of law as discussed above, I am of the opinion that (i) there is no second default and (ii) both the Courts below misconstrued the provisions of the statute and wrongly interpreted the term ‘default’ and or ‘arrear’ and on the basis of this wrong interpretation wrong calculation has been made by the Courts below and I, therefore feel that the judgment and decree passed by both the Courts below are not in accordance with law and should be set aside.
36. I, therefore, set aside the judgment and decree passed by the learned trial Judge as well as the learned Appellate Court below:
In the facts and circumstances of the case there will be no order as to costs.
Let a decree be drawn up accordingly.
The Lower Court Records be sent down to the Courts below forthwith.
Urgent xeroxed certified copy, if applied for be granted expeditiously.