K.C.Das Gupta, J. - (1.) The Respondent, who is the Mutwali of a Wakf Estate, brought this suit for ejectment of the Luxmi Spinning and Weaving Mills Ltd. on the allegation that the lease had determined and on the allegation that the defendant did not pay any rent to the Plaintiff from the month of October 1950 to June 1951. The Plaintiff also prayed for a decree for a sum of Rs. 1105-11-3 as arrears of rents. The Defendant denied that there had been any default and also the fact that the Plaintiff had, by notice, determined the lease. In the Trial Court a dispute seems to have been raised whether or not the tenancy was from month to month or a yearly tenancy. The learned Subordinate Judge being of opinion that it was a monthly tenancy terminable by fifteen days' notice expiring with the end of a month, held that there was a proper notice under Section 106, Transfer of Property Act and as it was not disputed that this notice was duly served, held that there was a valid determination of the tenancy. On the question of default, the Trial Court held that the Defendant was in default for more than three periods of two months each within a period of eighteen months prior to the institution of the suit and that the Defendant was not, therefore, entitled to any protection under Section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Accordingly, he gave the Plaintiff a decree for ejectment and also, a decree for Rs. 1105-11-3 as arrears of rent; but, directed that this sum as well as the further sum of Rs. 250/- which he allowed as mesne profits for the month of July, 1951, the Plaintiff would be at liberty to realize by adjustment against the deposits made before the Rent Controller, Calcutta. As regards further mesne profits from August, 1951 to September, 1953 also, the Trial Court directed that the Plaintiff would be at liberty to adjust them against the deposits lying with the Rent Controller, Calcutta. He decreed also further mesne profits up to the date of recovery of possession at the rate of Rs. 250/- per mensem. The Defendant appealed.
(2.) In the Appellate Court, it appears to have been first realized by the parties that the real question was not whether there was a proper service of notice to quit under Section 106 of the Transfer of Property Act, but whether there was a determination of the tenancy under the provisions of Section 111 (g) of the Transfer of Property Act. The learned Judge held that the tenancy was validly determined by service of notice of forfeiture on the Defendant under Section 111 (g) of the Transfer of Property Act.
(3.) It appears that on the date when the arguments were heard, there was some offer on behalf of the Appellant "to pay all the arrears of rent together with interest and full costs of the suit" in order to get the advantage of the provisions of Section 114 of the Transfer of Property Act. The learned Judge was of opinion that after the enactment of The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, Section 114 of the Transfer of Property Act no longer applied to suits for ejectment, even though the determination alleged was on the ground of forfeiture. He held, however, that even if the Defendant was entitled to invoke the assistance of Section 114 of the Transfer of Property Act, the discretionary powers of the Court should not be exercised in his favour, in view of all the circumstances of the ease. Accordingly, he dismissed the appeal.;