P L D 1967 Dacca 392 (PLP)

The learned Munsif, who tried the suit, held that plaintiff had not been able to prove his bona fide requirement of the suit premises. On the question as to whether defendant had defaulted in payment of rent so as to be disentitled to the protec tion given to a tenant under section 18 (5) read along with section 19 of the East Pakistan Premises Rent Control Ordinance 1963 (Ordinance No. XX of 1963) (hereinafter called the Ordinance), the learned Munsif, found that plaintiff had refused the stipulated rentals which were sent by money order by defen dant. He, therefore, held that, having agreed to an adjustment of an expenditure made by defendant, as stated above, it could not be said, in the aforesaid premises, that defendant was disentitled to the protection from eviction under the said Ordinance. It was further held by the trial Court that on adjustment defendant was liable to pay a sum of Rs. 224 to plaintiff by way of rental for fifteen months commencing from June 1963. The suit was decreed in part for a sum of Rs. 224 by way of rentals. Plaintiff's claim for eviction of defendant was dismissed. Against the judgment and decree passed by the learned Munsif, plaintiff preferred an appeal, which was heard and disposed of by a Subordinate Judge of Chittagong. The learned Subordinate Judge, applying his mind to the facts and circum stances of the case, held that defendant was disentitled to the protection from eviction under the aforesaid Ordinance. He further came to the conclusion that plaintiff had legally terminated the tenancy, which is a monthly tenancy, by a valid notice under section 106 of the Transfer of Property Act which must be taken to have been duly served on the defendant. He further allowed some damages to plaintiff and, on adjustment, decreed the suit for a sum of Rs. 231 in favour of the plaintiff in the following terms: "Ordered that the appeal be allowed on contest with cost. The judgment and decree of the learned trial court are hereby set aside. The suit be decreed in part on contest with proportionate costs. The plaintiff do get khas possession in the suit premises by evicting the defendant there from and he also do get Rs. 231 from the defendant. The proportionate cost shall be deemed to be th of the total cost, for the purpose of this judgment." This appeal is directed against the judgment and decree passed by the appellate Court below, as quoted above. At the hearing of this appeal it was contended that defendant was not disentitled to the protection given to a tenant from ejectment under section 18 of the Ordinance and that the bar imposed under subsection (5) of that section was not applicable to the facts of this case, plaintiff himself having refused to accept a tender of the rentals. It was further contended that having regard to an agreement between the parties for a lesser amount payable for a period of time, in adjustment of the expenditure incurred by defendant with regard to the suit‑premises, the question of depositing rent with the Rent Controller did not arise and that, therefore, he was not debarred from claiming protection from ejectment under subsection (5) mentioned above. This is the only point which has been seriously mooted before me. The answer to this argument is that the Ordinance makes a serious inroad into the proprietory rights of an individual. It protects a tenant from ejectment (which is a normal incident of, such tenancy) and gives the tenant a right of an extraordinary nature. This right is, however, hedged by two conditions which are fully set out in section 18, subsection (5) of the Ordinance, which read thus: "No tenant shall be entitled to the benefit of this section in respect of any premises unless, he pays the rent due by him in respect of such premises to the full extent allowable by this Ordinance 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, or in the cases provided for in section 19, unless the tenant has deposited such rent or any subsequent rent in respect of such premises as provided in that section 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." It is clear from the language of subsection (5), quoted above, that it is imperative for a tenant, in order to claim the benefit of section 18, to pay rent to the landlord either according to the contract or by the fifteenth of the month next following that for which rent is payable. In case, no such payment has been made (no matter whether because of any conduct on the part of the landlord, for example, when he refuses to accept such rent), the tenant has been given a further concession, namely, that he may deposit such rent or any such subsequent rent in the manner specified in section 19 of the Ordinance. It is true that deposit of rent, as mentioned in section 19 of the Ordinance is the option of a tenant; but, in order to claim the benefit of section 18 of the Ordinance, he must either, in C fact, pay the rent or fulfill the requirement of section 19 by depositing rent with the Rent Controller, or else, he shall be disentitled to a protection from eviction as given by the Ordinance. The language of subsection (5) of section 18 of the Ordinance is peremptory and mandatory, and it is not permissible for Court p to make concessions in deviation of the plain language of subsection (5), quoted above, because any such deviation would amount to an amendment of the law. It has been argued that plaintiff refused the offer of rent by money order and agreed to an adjustment as embodied in Exh. A whereby a sum of Rs. 20 only was payable per month for some of the subsequent months. It is said that the Rent Controller would not accept a deposit of Rs. 20 a mouth, and, therefore, it was not possible to comply with the provisions of section 19 of the Ordinance, having regard to the aforesaid agreement. The fallacy of this argument lies in the fact that it ignores what is obvious, namely, that the agreement would merely operate, in respect of the rights of the parties so far as the rentals only are concerned. The question of a right to evict a tenant and the corresponding protection claimed by the latter is a question which must be decided in accordance with the plain language of subsection (5) of section 18 of the Ordinance. I should not be confused with the quantum of money which the plaintiff is entitled to claim. In this case defendant, in order to claim protection from eviction, should have deposited full rents with the Rent Controller under section 19 of the Ordinance. He could, thereafter, if so advised, enforce the agreement incor porated in Exh. A, resulting in an adjustment of dues between the parties, which is a question distinct from the question of plaintiff's right to evict the defendant. I, therefore, hold that defendant not having deposited rent with the Rent Controller, as provided in section 19 of the Ordinance, and not having succeeded in paying rents to plaintiff, is disentitled to claim a protection from eviction, such protection being barred under section 18, subsection (5), of the Ordinance. The appellate Court below has also come to the same finding and I agree with) that Court. The next question is, whether a notice has been validly served under section 106 of the Transfer of Property Act. It has been proved that the tenancy, which is, admittedly, a monthly tenancy, has been terminated with the end of the month of the tenancy in question. It is, therefore, a good notice. The question then is, has the notice been served validly? It has been proved that it was sent by post to the address of the defendant and that it was came back to plaintiff on refusal by' defendant to accent service of the said notice. The postal cover under which the notice was sent bears the endorsement of the' postal peon to the effect that it was refused. It is, therefore, clear that the appellate Court below has rightly held that the said tenancy was terminated by a good notice under section 106 of the Transfer of Property Act and that it has been properly served, as required by law. My attention was drawn to the provisions of the East Bengal Non‑Agricultural Tenancy Act, 1949 (East Bengal Act XX11I of 1949) by the learned Advocate for the appellant (defendant in the suit) for the purpose of claiming protection thereunder. It is sufficient to say that this Act has no manner of application to the facts of the present case. The East Bengal Non‑Agricul tural Tenancy Act, 1949, applies in respect of "non‑Agricultural G Land" which comprises a tenancy. The entire enactment is designed to cover tenancies in respect of "non‑agricultural land" as distinguished from mere leases of premises only (without a transfer of the land), as in the present case. In the case before me defendant obtained lease of only the suit‑premises and not of land in question. Therefore, it is patent that the East Bengal Non‑Agricultural Tenancy Act, 1949, has no manner of applica tion to the present case. This disposes of all the points that have been mooted before me, and, for reasons stated above, the appeal is dismissed without any order as to costs. Plaintiff respondent will be entitled to enforce the decree passed by the appellate Court below on payment of deficit court fee to the extent of Rs. 1.70 in respect of the memorandum of appeal that he filed in the appellate Court below. The connected Rule, being Civil Rule No. 361 (s) of 1966, obtained by the appellant is hereby discharged without any order as to costs. K. B. A. Appeal dismissed.