Decided on September 14,1960



- (1.) THIS is a second appeal on behalf of the defendant in a suit for ejectment on the ground of default and on the ground of own use and occupation.
(2.) SO far as requirement for use and occupation, the first court held in favour of the plaintiff and the court of Appeal below reversed that finding. So far as default is concerned, both the courts came to the same finding, viz there was default. Mr. A. C. Ghose on behalf of the appellant did not in his opening raise any question regarding the requirement for own use and occupation on the ground that the finding was in his favour. He challenged the finding on the ground of default. According to Mr. A. C. Ghose, the suit was filed after the 1956 Act had come into force. The tenancy that was entered into between the parties by a contract was terminated by a notice to quit with effect from 30th April, 1956 and after such termination the suit was instituted on 23rd August, 1956. Mr. Ghose says that, if section 40 of the West Bengal Premises Tenancy Act of 1956 applies, then the 1950 Act may apply. If, on the other hand, the cause of action for the suit had been complete after 30th April, 1956, the suit would be governed by the West Bengal Premises Tenancy Act of 1956. Mr. Ghose says that on that interpretation of section 40, the plaintiff had a choice and he elected to take the advantage of 1956 Act rather than 1950 Act. According to Mr. Ghose, the plaintiff had two remedies open to him. Those two remedies were inconsistent and, therefore, the plaintiff having chosen the remedy in accordance with the Act of 1956, the Act of 1950 cannot be referred to at all. The basis of such election, according to Mr. Ghose, is the filing of an application under section 17 of the Act of 1956. If the plaintiff intended to have his remedy in accordance with the 1950 Act, he could have applied under section 14 of that Act. But he did not do that. Hence, the plaintiff must be deemed to have elected to have his remedy under the 1956 Act. Mr. Ghose then says that the cause of action for the suit was complete on 1st of May, 1956 when the tenant did not vacate the premises and the suit being instituted on the 23rd August 1956, the suit should, apart from the doctrine of election, be considered to have been instituted under the 1956 Act. According to Mr. Ghose, if 1956 Act applies, defaults subsequent to that Act would apply. That means that defaults from April to July 1956 may be taken into consideration but not any default which occurred at the time when the Act of 1950 had still been in force. In that view of the matter, according to Mr. Ghose, there has been no default and the appeal must, therefore, be allowed. [after stating the argument of Mr. H. C. Ghose, his Lordship continued. ]
(3.) ON the question of default Mr. H. C. Ghose says that there has been default-whether the 1950 Act applies or 1956 Act applies. Mr. A. C Ghose's rejoinder is that, if the 1950 Act applies, then there was no default within the meaning of that Act because default under section 14 is only with reference to an ejectment suit pending under section 12 (1) (i) of that Act. As there was no ejectment suit pending at that time, there is no question of any default within the meaning of that Act. With reference to the Act of 1956 Mr. H. C. Ghose says, supposing that Act applies, under section 17, sub-clause 4 proviso, there have been four defaults within 12 months and that is sufficient for a decree on the ground of default. Mr. A. C. Ghose's rejoinder to this point that, even though the period has been stated to be one year, this must be understood with reference to the fact that the Act was prospective and anything that happened at a time before the Act came into force must be kept completely out of consideration. [after dealing with the question of requirement his Lordship continued. ];

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