Lahiri, J. - (1.) This is a Rule under section 115 of the Code of Civil Procedure and it was obtained by the Plaintiff in a proceeding for ejecting the Defendants Opposite Parties from premises No. 114|1, Cornwallis Street, which was let out to the Opposite Parties at a rental of Rs. 110 per month. In the plaint, the Plaintiff based his claim for ejectment on the ground of ipso facto determination of the tenancy alleging that the Defendants had made default in payment of rent for the months of Bhadra. Aswin and Kartick, 1356 B. S. This claim was based upon the provisions of section 12 (3) of the West Bengal Premises Rent Control Act of 1948.
(2.) The tenants Defendants contested the claim of the Plaintiff by filing two separate written statements. During the pendency of the suit, the West Bengal Premises Rent Control Act (Act XVII of 1950) came into operation. The tenants Defendants made an application under sub-section (5) of section 18 of the West Bengal Premises Rent Control Act of 1950 to get relief against the claim for ejectment. This prayer of the tenants Defendants was allowed by the learned Presidency Small Cause Court Judee by a judgment, dated the 7th June. 1950. and the Plaintiff's prayer for abetment was dismissed. Against this order, the Plaintiff has obtained the present Rule.
(3.) Mr. Ghose appearing in support of the Rule has argued that sub-section (5) of section 18 does not apply to a proceeding for ejectment under section 41 of the Presidency Small Cause Courts Act. The point raised is that sub-section (5) of section 18 is confined only to suits and does not apply to proceedings for recovery of possession. It is to be noticed that sub-section (5) of section 18 authorises the Court to grant relief against ejectment in pending suits whereas sub-section (1) of the same section gives a Court power to vacate a "decree" where such a decree was passed before the coming into operation of the Act of 1950. In the case of Rai Bahadur Atulya Dhan Banerji v. Sudhangshu Bhusan Datta Since reported: 55 CWN 348 (1951) , a Division Bench of this Court held that the word "decree" occurring in sub-section (1) of section 18 is wide enough to include an order for possession made under section 43 of the Presidency Small Cause Courts Act although the word "order" is not to be found in sub-section (1). In that case, the Division Bench considered the case of Amulya Ratan v. Meghmala 53 CWN 474 (1949) and came to the conclusion that that decision was no authority for determination of the question which arose under section 18 of the Act of 1950. I am inclined to think that it follows from the reasons given in the decision of the Division Bench in Civil Revision Case No. 1358 of 1950 [ Rai Bahadur Atulya Dhan Banerji v. Sudhangshu Bhusan Datta Since reported: 55 CWN 348 (1951) ] that the word "suit" occurring in sub-section (5) of section 18 includes a proceeding for recovery of possession under section 41 of the Presidency Small Cause Courts Act. A suit for recovery of possession terminates in a decree whereas a proceeding for recovery of possession under the Presidency Small Cause Courts Act terminates in an order for possession. If the word "decree" in sub-section (1) includes an order for possession I have hardly any doubt in my mind that the word "suit" in sub-section (5) includes a proceeding for recovery of possession. Consequently, I hold that the word "suit" occurring in sub-section (5) of section 18 includes a proceeding for recovery of possession under section 41 of the Presidency Small Cause Courts Act. The first point raised by Mr. Ghose, therefore, fails.;