P L D 1961 Dacca 34 (PLP)

This second appeal is directed against the decision of the learned Subordinate Judge, lst Court, Dacca, affirming the judg ment and decree passed by the Munsif, 6th Court, Dacca in a suit for ejectment.

2. The plaintiff who is the respondent in this appeal instituted the said suit after obtaining the necessary permission of the learned District Judge, Dacca on appeal under the East Bengal Premises Rent Control Act, 1953. The ejectment was asked for on the following grounds, namely (1) default in pay ment of rent, (2) bona fide requirement by the landlord for the purposes of building and re‑building and for his own occupation and lastly (3) for acts done contrary to the provisions of clause (p) of section 108 of the transfer of Property Act, 1882, by making unauthorised constructions of pucca structures, on an open space in front of the holding, for the purposes of running a grocery shop.

3. The appellants before me who were the defendants in the suit denied that they were defaulters or that the landlord bona fide require the premises either for the purposes alleged or at all but with regard to the unauthorised constructions he claimed that the said constructions had peen spade during the time of the plaintiffs' predecessor‑in‑interest with the latter's consent. Hence the plaintiff could not object thereto.

4. Both the Courts below found in favour of the plaintiff on all the three grounds and decreed the suit. Hence the present appeal. In this appeal it is firstly contended that the Courts below have erred in law in coming to the finding that there was any default in so far as if the defendants were given an adjustment for arrears of rent paid to the plaintiff in respect of the rents due prior to his acquisition of the property on the 26th of January 1955, there would be no default at all.

5. With regard to the ground of bona fide requirement for the purposes of building, and re‑building, it is contended that in so far as the relevant evidence to establish this was produced after the permission by the appellate authority in the proceedings under the East Bengal Premises Rent Control Act, 1953, the permission to file the present suit was itself without jurisdiction and therefore, the suit itself was without jurisdiction.

6. With regard to the unauthorised constructions, also the contention of the appellant is that the plaintiff had no right to object thereto as the constructions were made with the consent of the previous landlords and in any event it is contended that the entire suit for ejectment should fail as the landlords had accepted payments for arrears of rent after the institution of the proceedings before the Rent Controller and must, therefore, be deemed to have waived their right, if any, to evict the appellants.

7. So far as the first contention is concerned, it has been raised in this Court for the first time and I have allowed it to be raised, in spite of the objection raised by the learned Advocate appearing for the respondent as this is purely a question of law, for the fact that certain payments were made in respect of the arrears accrued before the date of acquisition of the premises by the present plaintiff is admitted.

8. In support of this contention the learned Advocate appearing for the appellant has relied on an unreported decision of this Court in Civil Revision Case No. 293 of 1958 In the matter of Basharatulla v. Imamuddin Ahmed, dated the 20th of March, 1959 where my learned brother Khan, J. sitting singly appears to have been taken the view that the clause in a permanent lease authorising the lessee to realise the arrears of rent from the tenants of the holding leased, does not by itself operate as an assignment of the back rents. The revisional application before Khan, J., came up from a proceeding for permission to file a suit for ejectment under the East Bengal Premises Rent Control Act, 1953 and although the above view was taken it was further observed that even "if it be conceded for the sake of argument that back rent was assigned by clause 3 of the deed Exhibit 3 in that case too the petitioner vas not landlord for the period to 29‑11‑

56. In such circumstances no status of landlord could be conferred upon the petitioner as the deed of lease itself does not operate retrospectively and hence the lessee petitioner could not make that prior default a ground for eviction of the tenant".

9. It would thus appear that in the view taken by Khan, J. even if the right to realise arrears of rent could be validly assigned by the incorporation of such an assignment clause in the permanent lease itself it would not operate to make the lessee a landlord in respect of the holding leased out from before the date of his lease so as to entitle him to evict the tenant on the basis of the prior default. In the present case, however the position is different. Here the case with which the landlord came to Court was that the tenants had defaulted from March 1957, in paying the rents in respect of the premises acquired by him although they had accepted the plaintiff as the landlord and paid up arrears upto December, 1956, which had been duly accepted by the plaintiff and thereafter also remitted the rent for January- February, 1957, by money order which was refused by the landlord. So, in any event, they were defaulters as and from March, 1957, long after his acquisition of the property.

10. The permission to evict was at first refused by the Rent Controller but it was ultimately on the 19th of July, 1957, granted on appeal by the District Judge. Thus the case of the plaintiff- landlord even before the learned District Judge, was based on a default after the date of his lease executed on the 26th of January, 1955, but the tenants now seek to take advantage of payments made of arrears accrued before that date and claim an adjustment of that rent with the subsequent rents in order to save them from becoming defaulters.

11. As I have read the decision of Khan, J. it does not go to the extent of saying that in such circumstances the realisation, if any, made by the lessee in terms of the authority given to him in the permanent lease itself is altogether illegal and must in law be deemed to be payment of subsequent rents. I again find no provision in any law which would entitle the tenant to claim an automatic adjustment of any such payment even if such amount was wrongly realised by the subsequent lessee. Had he made out this ground before the Rent Controller or the appellate authority. I am sure, they would have taken it into consideration under section 19 (2) of the said Rent Control Act of 1953 in determining whether any reasonable ground existed for the default which was admittedly com mitted by the defendants tenants in paying up rents accrued since the date of the purchase by the plaintiff ‑landlord. Since this ground was not taken either in the Rent Control proceedings or in the Court below, of course no occasion arose for those Courts to consider this aspect of the matter. In my view, however, the defendants are not entitled to claim such an adjustment. If they feel that the assignment of the arrears of rent has been invalidly made and the arrears of rent wrongfully realised they may sue to recover them from the plaintiff landlord but that does not entitle them as a matter of right to claim an adjustment in respect of the default accruing subsequent to the transfer of the property.

12. The Rent Control Act took away the right given to a landlord under the general law of the land, namely, the Transfer of Property Act to evict a tenant at his will after serving upon him the requisite notice and gave certain benefits to tenants to which they were not entitled before. Hence in construing this Act one must keep in mind the principle that those seeking benefits under the Act must bring themselves in the strictest terms within its provisions. One of such provisions is that the benefits of the said Act can only be given to a person who discharges his own obligations as a tenant, namely, by payment of rents to the landlord in due time or by depositing the same with the Rent Controller in accordance with the provision of the said Act. This admittedly the defendants did not do in the present case. Nothing has been shown which would indicate that any rent for any period after March, 1957, was paid or tendered to the landlord. Even prior to that, arrears since 1955 were not paid in accordance with the provision of the Act although the landlord accepted such payments and did not insist upon relying on the defaults which were committed even then. From this point of view there is no doubt that the decision of the Courts below that the present appellants were defaulters is a correct decision.

13. So far as the second ground of bona fide requirements for the purposes of building and re‑building is concerned, the only argument that has been advanced before me by the learned Advocate appearing in support of this appeal is that the necessary evidence, namely, the permission to begin constructions and the sanction of the plan for such construction and reconstruction were procured after the permission granted by the learned District Judge. This is not borne out by the evidence on record. Exhibit 1 is the sanctioned plan. It was after the sanction had been granted that it was returned to the plaintiff together with the permission to begin construction which has been marked Exh.

2. This is dated the 16th of May, 1957, but the authorised officer actually granted the permission on the 15th of May, 1957, and this was at least two months before the learned District Judge had granted the permission to use for ejectment on the 19th of July, 1957. Hence there is no foundation for this argument.

14. Upon the evidence on record the plaintiff had duly obtained the necessary permission from the appropriate authority for the construction and reconstruction of the building and this is adequate proof of his bona fide requirement. The only attempt made by the defendants to rebut this proof was to produce certain letters. Exhibit A series in order to show that the plaintiff did not possess sufficient means for executing the said constructions. I am in agreement with the learned Sub ordinate Judge that these documents do not establish that the plaintiff has no money at all to begin the constructions. In the circumstance, this ground also fails and I uphold the decision of the Courts below on this point as well that it has been adequately proved that the premises were indeed required by the landlord for the purposes of building and re‑building.

15. Thirdly, with regard to the unauthorised constructions again it is admitted by the defendants that certain constructions were made but they claim that this was done with the prior permission of the previous landlord, the predecessors‑in‑interest of the plaintiff. The Courts below have disbelieved the story as no permission was proved before the Courts below, and it does not appear to me to be an unreasonable view to have been adopted by the Courts below not to believe the story of major alterations being made to the demised premises without any consent in writing from the landlord for the time being.

16. Since these are all the points urged in support of this appeal and I have held against the appellants on all these points, the appeal fails and is accordingly, dismissed with costs.

17. So far as the connected Rule being Civil Rule No. 923 (s) of 1959 is concerned, since the appeal fails, the Rule will be discharged and the ad‑interim order of stay vacated. K. B. A. Rule discharged.