Harries, C.J. - (1.) This is an appeal from an order of Banerjee J. dated December 20, 1948, dismissing an application under the West Bengal Premises Rent Control (Temporary Provisions) Act, XXXVIII [38] of 1948. The application was made by the appellants for an order that the decree in a suit for ejectment and rent made against them at the instance of the respondent and dated August 14, 1947, and all orders for execution made thereunder should be rescinded or varied on such terms and conditions as the Court might seem fit. There was also a prayer for an injunction restraining the respondent, his servants or agents from executing the said decree for possession.
(2.) The facts giving rise to the litigation can be shortly stated as follows. The plaintiff-respondent was the owner of premises known as No. 10, Canning Street in the city of Calcutta. The petitioners, the Federation Bank of India, Ltd., were the tenants under the plaintiff in respect of part of the premises at a monthly rent of Rs. 360. The bank were in arrear with the payment of rent and in the early part of the year 1946 the bank made an application to this Court under the Indian Companies Act for a moratorium. The application was, however, refused. On July 31, 1946, the plaintiff-respondent served a notice to quit upon the bank, but the bank did not vacate the premises after the expiry of the notice. On September 10, 1946, this Court made an order winding up the bank and the Official Liquidator was appointed liquidator of the company. Subsequently, a scheme was sanctioned under the Indian Companies Act and by that scheme the bank was allowed to pay its debts by certain instalments. As the bank was a defaulter in the payment of rent an application was made by the plaintiff-respondent to the Rent Controller for leave to file a suit for ejectment, as it was necessary under an Ordinance then in force that such leave should be obtained before a suit could be filed. The Rent Controller gave leave to the plaintiff-respondent to bring a suit if the arrears from January 1946 were not paid up in a month's time. The arrears were not paid and the leave became effective. The bank appealed from the order of the Rent Controller, hut that appeal was dismissed and on July 25, 1947, a suit for possession and for Rs. 2880 as arrears of rent and mesne profits at the rate of Rs. 360 a month was filed in this Court. It will be seen that non-payment of rent was made a ground for eviction. The writ of summons was duly served on the bank, but no appearance was entered. The result was that the suit was decreed ex parte on August 14, 1947. The bank then made an application under Order 9, Rule 13 to have the ex parte decree set aside. This application was dismissed and an appeal was preferred. The Court of Appeal granted a stay on certain conditions, one being that the petitioner deposited in Court a sum of Rs. 8000 as a condition for the stay. The sum was deposited in Court by the bank, but eventually the appeal was dismissed and the respondent took out the money in payment of his dues. The bank then made an application under Section 5 of the Limitation Act to the Appellate Court for extension of time for filing an appeal against the ex parte decree. That application was dismissed on 27-9-1948. In the meantime the plaintiff-respondent had taken out an execution and obtained an order from this Court for possession. The Sheriff's officer endeavoured to obtain possession but he was resisted. On 1-10-1948 the bank made an application to the Court asking for three months' time to vacate the premises. On 26-11-1948, the bank filed a suit for setting aside the decree of August 14, 1948, on the ground of fraud, but eventually this suit also met the same fate and was dismissed. The bank also made an application for an injunction restraining the plaintiff from executing the decree. That application was ultimately dismissed. Between November 25 and November 30, 1948, the Sheriff received a number of letters from various persons claiming that they were in occupation of the premises in question under title independently of the bank, that is to say, neither as assignees nor as sub-tenants of the bank. The Sheriff's officer then reported that the premises were locked and the upshot of it all has been that though the plaintiff obtained a decree on August 14, 1947 nevertheless he was not successful in getting possession up to December 1, 1948. On December 1, 1948, the Act known as the West Bengal Premises Rent Control (Temporary Provisions) Act, XXXVIII [38] of 1948, came into force and on the day it came into force the bank made the application to Banerjee J. which has given rise to this appeal. Banerjee J., eventually came to the conclusion that there were no merits in the application and he accordingly dismissed it with costs, It is from that order the present appeal has been, preferred.
(3.) Mr. D. N. Sinha who has appeared on behalf of the appellant-bank has urged that the Court should set aside or vary the decree which had been passed in August 1947 against his client, because that decree would never have been passed if the Act, namely, the West Bengal Premises Rent Control (Temporary Provisions) Act, had been in force at the date upon which the decree was made. Counsel has relied upon Section 18 of that Act which is in these terms : "Where any decree or order for the recovery of possession of any premises has been made, before the date of commencement of this Act but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the Court by which the decree or order was made may, if it is of opinion that the decree or order would not have been made if this Act had been in operation at the date of the making of the decree or order, rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to the provisions of this Act." It seems to me that the wording of this section is clear. If a Court on application made to it comes to the conclusion that the decree sought to be rescinded would never have been made, if this Act had been in force at the time that decree was made, then the Court can rescind or vary that decree. What the Court has to ask itself is would it have passed the original decree if this Act (Act XXXVIII [38] of 1948) had been in force at the date of the original decree. Mr. D. N. Sinha has urged that if the Act XXXVIII [38] of 1948 had been in force in August of 1947, the decree for eviction of the bank would never have been made. Under the Act (Act XXXVIII [38] of 1948) mere default in payment of rent is not in itself a ground for eviction. Section 11 of that Act provides that no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays to the full extent the rent allowable by the Act and performs the conditions of the tenancy. However, it is provided that the section shall not apply where the tenant has been guilty of certain conduct.;