P L D 1961 Dacca 784 (PLP)

M. R. KHAN, J.‑This second appeal by the defendant -appellant arises out of a suit for ejectment based on a notice under section 146 of the Transfer of Property Act and for recovery of rent and compensation.

2. On the pleadings, the following issue, among others, was framed in the suit "Is the suit maintainable without permission from the House Rent Controller" ?

3. The trial Court heard the issue as a preliminary issue and, having answered it in the negative, dismissed the suit in its entirety. The lower Appellate Court, however, set aside the judgment and decree of the trial Court on the finding that the permission of the House Rent Controller was not necessary for the maintainability of the suit and remanded the suit to that Court for trial of the remaining issues in accordance with law. It is against the judgment and decree of the lower Appellate Court that the defendant‑appellant has preferred this appeal.

4. It is contended on behalf of the defendant‑appellant that non‑payment of rent is one of the grounds for which the defen dant's eviction has been sought for and, as such, the suit for eviction is not maintainable for not having obtained the Controller's permission as required by section 19 (1) of the East Bengal Premises Rent Control Act, 1953 (East Bengal Act XVI of 1953). It is further contended that the Court of appeal below has misconstrued the plaint and erred in holding that non‑payment of rent has not been taken as one of the grounds for eviction. On the other hand, it is submitted on behalf of the plaintiff‑respondent that section 19 (1) of the said Act, requiring the Controller's permission is not attracted to this case in as much as the defendant has been sought to be evicted on account of certain wrongful actions on his part falling under Clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, but not on the ground of his being a defaulter.

5. The East Bengal Act XVI of 1953 applies to the premises in suit, the same being situated within the Chittagong Municipality. According to sections 18 (1) and 19 (1) of the said Act, the Con troller's previous permission in writing is a condition precedent to the institution of a suit or proceeding by a landlord against a tenant in possession of any premises for eviction of such tenant therefrom on the grounds mentioned in those sections: Section 18(1) is inapplicable to the present case inasmuch as none of the grounds for eviction mentioned therein appears to have been taken as a ground for the defendant's eviction. Section 19 (1) on which the learned Advocate for the defendant‑appellant relies runs thus :‑ "No suit or proceeding by a landlord against a tenant in possession of any premises for eviction of such tenant the reform, in which non‑compliance with the provisions of this Act as to the payment or deposit of rent by such tenant in respect of such premises to the full extent allowable by the Act within the time specified in that behalf in this Act has been taken as a ground for such eviction, shall be entertained or proceeded with by any Court unless the landlord has been permitted by the Controller by an order in writing under subsection (2) to institute or proceed with such suit or proceeding and has produced before such Court proof. that such permission has been granted."

6. It is quite clear from the section quoted above that the plaintiff's suit, in so far as it relates to eviction of the defendant from the premises in question, shall not be maintainable if non payment of rent has been taken as a ground for his eviction. Therefore, it shall be necessary to determine on what ground or grounds the defendant's eviction has been sought for. For this purpose, the plaint of the suit should be read as a whole. The plaint consists of nine paragraphs in all. Of them, paragraph 1 recites only preliminaries and paragraph 8 refers to valuation and Court‑fee. Thus, these two paragraphs are not quite relevant. In paragraphs 2 and 3 certain wrongful actions on the part of the defendant are listed for which total damage is estimated at Rs. 1,780 in paragraph 4 thereof. It is stated in the next paragraph that the plaintiff asked the defendant to pay compensation and restore the property to its original condition, but the defendant did not comply. Paragraph 6 recites that the plaintiff served on the defendant a notice under section 106 of the Transfer of Property Act, determining the tenancy, asking the defendant to vacate the premises with the expiry of the 31st day of March, 1954 and to pay the arrear rent from October, 1953 and also to pay compensation to the extent of 1,780 and that the defendant did not comply with any of those demands. Paragraph 7 of the plaint which is more pertinent runs thus: "That the defendant not having complied with the plaintiff's demand in the matter of vacating the premises, paying off the arrears of rent and compensation for damage done, to the disputed premises the plaintiff has been compelled to bring this suit against the defendant for‑proper and adequate relief." Thus, paragrahps 6 and 7, read together clearly show that the plaintiff made three demands in the notice under section 106 of the Transfer of Property Act, namely the vacating of the suit premises, paying off compensation for the alleged damages to the premises and that he was obliged to institute the suit on the defedant's failure to comply with those demands, including the demand for arrear of rent. Paragraph 9 recites, among others, that the cause of action for the suit arose on 25th March 1954, when the defendant refused to comply with plaintiff's demands for the first time. The word "demands" occurring in paragraph 9 in plural number is significant and obviously refers to plaintiff's all the three demands as aforesaid. Thus, the recital in para. 9 adds strength to the view that the defendant's non‑compliance with plaintiff's three demands, including the demand for arrear of rent were the reasons for which the suit was instituted. Consistent with those demands, the plaintiff sought for three reliefs, namely, recovery of khas possession of the suit premises after evicting the defendant therefrom, recovery of arrear of rent and recovery of compensation for the damages said to have been caused to the premises. Therefore, the only reasonable construction of para graphs 2 to 7 and 9 of the plaint considered in the light of the relief, claimed therein is that the defendant's eviction has been sought for not only on the ground of certain wrongful actions on his part but also on the ground of his not paying rent falling due, and we hold accordingly.

7. As, however, the Controller's permission is not required under the East Bengal Act XVI 1953 for the institution of the suit for eviction of a tenant on the ground of wrongful actions on his part, Mr. Sen, the learned Advocate for the plaintiff respondent submits that the suit for ejectment is maintainable even if non payment of rent by the defendant has also been taken as a ground for his eviction. In other words, his submission is that when one of the two grounds taken for the defendant's eviction requires the Controller's permission but the other does not, the suit for ejectment cannot be held to be non‑maintainable merely because of the inclusion of the ground requiring permission. In support of this contention, Mr. Sen has cited three cases of the Calcutta High Court. These are Bhubon Mohni v. Biraj Mohan Ghosh (44 C W N 74) ; Amarendra v. Bibhuti (A I R 1952 Cal. 773) and T. S. R. Sarma v. Nagendra Bala Debi Choudhury (57 C W N 1). None of these cases appears to have any bearing on the point canvassed by Mr. Sen before us. Bhubon Mohini v. Birj Mohan Ghosh was a case against a recalcitrant tenant and a Receiver for establishment of the plaintiff's title and recovery of possession on evicting the tenant also for mesne profits. The suit was brought without having served on the Receiver a notice under section 80 of the Code of Civil Procedure. It was held that the suit, in so far as it related to the claim for mesne profits, was not maintainable against the Receiver for want of a notice under section 80 of the Code of Civil Procedure and that the suit as respects declaration of title and recovery of possession was not, in law, a suit against the Receiver within the meaning of the said section. Accepting the correctness of the legal position as above, the plaintiff's Advocate in that case pressed for a decree declaring only the title of the plaintiffs. As a matter of fact, the plaintiff's withdrew the claim for mesne profits. It was in that connection that following observation was made in the judgment "It is quite true that if two or more causes of action are united in one suit, and with regard to one of them the suit fails for want of a notice under section 80 of the Code of Civil Pro cedure, there is no reason why the entire suit be dismissed." While the above observation is generally correct, it does not go to support the point stressed by Mr. Sen in this case. In the cited case, the plaintiffs sought for two distinct reliefs, namely, recovery of possession on the declaration of title and for mesne profits, based on separate cause of action. Therefore, the failure of the suit against the Receiver as respects mesne profits for want of a notice under section 80 of the Code of Civil Procedure could not frustrate the suit as respects title and possession the same being a distinct relief based on a separate cause of action. In the cited case, two causes of action were not united for one and the same relief. In the cited case, however, two causes of action, namely, wrongful action on the part of the defendant and non‑payment of rent by him are united for the same relief, that is, the defendant's eviction. We are, therefore, of the view that the decision in Bhubon Mohini v Biraj Mohan does not support Mr. Sen's contention that the present suit for the defendant's eviction shall be maintainable even if his eviction has been sought for also on the ground of his being a defaulter. The next case of Amarendra v. Bibhuti was a case under the Calcutta Rent Ordinance, 1946 for eviction of the tenant- defendant for misbehaviour as contemplated in section 12 (1) (c) of the said Ordinance corresponding to section 17 (1) (c) of the East Bengal Act XVI of 1953. In that case, non‑payment of rent was not pleaded as a cause of action for the tenant's eviction, and the decree for eviction was passed only on the ground of the tenant's misbehaviour. Therefore, the decision in the said case is of no application here. Also the decision in T. S. R. Sarma v. Nagendra Bala Debi Choudhury is inapplicable to the present case for the reason that the point involved in that case was whether sec tion 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was applicable to a suit for ejectment which was pending when an earlier Act on the same subject was in force. The point involved in that case is not relevant to the point stressed by Mr. Sen in this case.

8. Section 19(1) of the East Bengal Act XVI of 1953 requiring the Controller's permission for the institution of a suit or proceeding for eviction of a tenant clearly lays down that no such suit or proceeding in, which non‑compliance with the provi sions of that Act as to the payment or deposit of rent due by each tenant has been taken as a ground for such eviction, shall be entertained or proceeded with except with the Controller's previous permission in writing. According to the plain meaning of the said section, the Controller's permission shall be necessary for the maintainability of a suit or proceeding for eviction of a tenant if non‑payment of rent due by such tenant has been taken as a ground for his eviction, whether or not such ground is the only ground for eviction: If, however, 'in such a suit or proceeding several grounds for eviction are pleaded and one of these grounds requires the Controller's permission but the others do not, the suit or pro ceeding cannot be entertained or proceeded with except with the Controller's permission in writing.

9. Mr. Guha, the learned Advocate appearing on behalf of the defendant‑appellant has cited a single Bench decision of the Calcutta High Court in Prafulla Kumar Dutta v. Guiram Tat (54 C W N 624) to the same effect. That case was under the Calcutta House Rent Control Order, 1943, which contained provisions analogous to the provisions of the East Bengal Act XVI of 1953. In that case, the only prayer was for ejectment. Roxburgh, J., sitting singly held :‑ "If a suit is brought on several grounds and one of the grounds is a ground which requires the permission of the Con troller, then the whole suit cannot be entertained." Admittedly, the present suit was brought without having obtained the permission of the Controller as required by sec tion 19(1) of the East Bengal Act XVI of 1953. Therefore, the suit, as respects the prayer for eviction of the defendant, is not maintainable. As regards the plaintiff's prayer for recovery of arrear of rent and compensation, the Controller's permission is not required under the said Act. Hence, the suit, in so far as it relates to recovery of arrear of‑ rent and compensation, is maintainable and can be proceeded with. In the result, the appeal is allowed in part. The judgment and decree of the lower Appellate Court are modified. The suit so far as concerns the prayer for khas possession of the disputed premises after eviction of the defendant is dismissed. The case is remanded to the Court of the first instance for trial of the suit as respects the other reliefs sought for in the plaint. In the circum stances of the ‑case, the parties shall bear their respective costs of this appeal. HASAN, J.‑I agree. K. M. A. Appeal allowed.