P L D 1958 Dacca 122 (PLP)

Section 19 (2) of the Act provides "A landlord desiring to obtain from the Controller any order referred to in subsection (1) permitting him to institute or proceed with a suit or proceeding referred to in that subsection against any tenant in possession of any premises for evicting such tenant therefrom shall apply in writing to the Controller in that behalf, and if, on receipt of such application, the Controller, after giving the tenant in possession of the premises an opportunity of showing cause against the application and considering all the circumstances of the case, is satisfied that there has been no such non compliance with the provisions of this Act as to the payment or deposit of rent due by such tenant in respect of such premises, or that reasonable grounds exist for such non compliance, and if the tenant has paid to the landlord or has deposited in the manner in which a deposit of rent is required to be made under subsection (1) of section 21 the rent allowable by this Act in arrear before an order under this subsection is made, the Controller shall, after recording his reasons in writing, make an order rejecting the appli cation, but, if the Controller is not so satisfied or if the tenant has not so paid or deposited the rent allowable by this Act in arrear, the Controller shall, also after recording his reasons in writing, make the order applied for." Under this provision the Controller will give an opportunity to the tenant of showing cause and thereafter if he considers and if he is satisfied on a consideration of all the relevant facts and circumstances that there has been no such non‑compliance with the provisions of the Act or that reasonable grounds exist for such non‑compliance, even then he will reject the application of the landlord after recording his reasons, provided the arrears are paid as laid down in the Act. Rule 6‑A was framed to carry out the purposes of the Act. Section 17 (5) of the Act provides :‑ "No tenant shall be entitled to the benefit of this section in respect of any premises unless,‑ (a) he pays the rent due by him in respect of such premises to the full extent allowable by this Act within the time fixed in the contract with his landlord or, in the absence of such contract, by the fifteenth day of the month next following that for which the rent is payable, and (b) in the case where the Controller has, in fixing the standard rent under section 14, allowed any increase in the rate of rent payable in respect of such premises, with effect from any date earlier than the date of the order, he has paid also the amount that has become payable by him on account of such increase for any period preceding the date of such order, to the full extent and within the time specified in this behalf by the Controller or, in the absence of any such specification, within one month of the date of such order or, where the landlord has refused to accept any rent referred to in clause (a) or clause (b) or where there is bona fide doubt or dispute as to the person who is entitled to receive such rent, unless the tenant has deposited such rent or any subsequent rent in respect of such premises as provided in section 21 together with, in the case mentioned in clause (b) of subsection (1) of that section, the cost of transmission referred to in that clause within the time specified in that section." Standard rent has been defined in section 2t. sub‑clause (8), in relation to any premises used, or mainly used for residential purposes, means the basic rent increased by twenty‑five per centum, if the basic rent is not more than Rs. 50 per mensem, and the basic rent increased by thirty per centum, if the basic rent is more than Rs. 50 per mensem. Section 17, clause (1) of the Act provides :‑ "Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Act and performs the conditions of the tenancy. Clause (6) of section 17 of the Act provides :‑ 'For the purposes of this section, the rent allowable by this Act means,‑ (i) in relation to any premises erected after the thirty -first day of December 1951, the rent agreed upon between the landlord and the tenant to be paid in respect of such premises ; and (ii) in relation to any other premises :‑ (a) where the standard rent in respect of such premises has been fixed by the Controller under section 14, the standard rent so fixed, or (b) where such standard rent has not been fixed, the rent agreed upon between the landlord and the tenant to be paid in respect of such premises or, when the rent so agreed upon exceeds the standard rent of such premises, so much of the rent so agreed upon as does not exceed the standard rent." From the above provisions it is abundantly clear that it is not the object of the Legislature that the tenant should be occupying the holding without paying any rent to the land lord whatsoever, even that amount of rent which he himself f agreed that he would pay to the landlord as rent of the premises. The application for standard rent was filed in March 1955, long after the present application for permission was filed before the Rent Controller. The learned Additional District Judge has found that the opposite party had reason able grounds for non‑payment of rent. Unfortunately I cannot at all agree with his conclusion. The learned judge has evidently acted illegally and with material irregularity in the exercise of his jurisdiction. The learned judge has sought to lay down a very dangerous precedent, for, in that case no land lord would be safe and the tenant could very well go on without paying rents for years and when an application would be filed for permission to eject him on the ground that he was a habitual defaulter, he will put in an application for fixation of standard rent which might take some years and the result would be that the landlord would be deprived of his rent for years. That cannot be the object of the Legislature. The opposite party is undoubtedly a habitual defaulter and lie had absolutely no ground for not paying the rent for all this time from January 1953, till July 1956. No application for fixation of standard rent was filed at the time and no application for fixation of rent was pending at the time when the petitioner moved the Rent Controller for permission to sue the opposite party for ejectment. The opposite party raised frivolous pleas that the petitioner was not the sole owner which plea ultimately he gave up and, as I have already stated, it was never the case of the opposite party that he could not pay the rent as there was dispute as to the rate of rent. If he had bona fides, he might have at least deposited the agreed rent in Court which he did not do. In the circumstances, the learned Additional District judge acted illegally and with material irregularity in the exercise of his jurisdiction in holding that the petitioner had reasonable grounds for non‑payment of rent. As soon as it is found that the opposite party had no reasonable grounds .for non‑payment, the Rent Controller would have jurisdiction to grant the permission and, as such, the case comes within the scope of section 115 of the Code of Civil Procedure. The Rule is, therefore, made absolute and the order of the learned Additional District Judge, dated 27th September 1956, allowing the appeal against the order of the Rent Controller, dated 10th October 1955, is set aside and that of the Rent Controller is restored. The petitioner will get the costs of this Rule. The hearing fee is assessed at two gold Mohurs. Z. A.S. Rule made absolute.