P L D 1957 Dacca 544 (PLP)

RAHMAN, J.‑--This is an application under section 115 of the Code of Civil Procedure for revising an appellate order of the District Judge, Pabna, affirming the order of the Rent Controller, Pabna, granting permission under section 18 of the East Bengal Premises Rent Control Act, 1953, to institute a suit for evicting the petitioners before me. The application for permission to bring a suit for ejectment was on the ground that the petitioners before me were habitual defaulters, and that the premises were bona fide required by the landlord for his own occupation. The petitioners before me state that they entered into occupation of the premises concerned when it was owned by one Babu Jitendra Nath Majumdar, and they occupied the premises as his tenants on payment originally of Rs. 35, inclusive of all Municipal taxes, as rent, but subsequently it was reduced to only Rs. 20, inclusive of such taxes, and that they regularly paid the rent, and were not defaulters. They further alleged that the opposite‑party No.1 purchased the said premises on the 22nd of January 1953, and when the petitioners offered him rent he avoided accepting it on frivolous pretexts; that even after the opposite‑party No. .l had in December 1953, applied to the Rent Controller for permission to sue them, they had offered to pay the arrears of rent, and had in fact obtained an order from the Rent Controller on the 18th of June 1954, for depositing all arrears up‑to‑date including that for the month of May 1954. It is their further case that the opposite‑party No. 1, who is a Government servant employed at Rajshahi where he is living with his family does not bona fide require the premises in question, and they complain that the learned District Judge and the Rent Controller, as such, acted illegally and with material irregularity in granting such permission. The learned Advocate for the petitioners urges that it appears that the case of the opposite‑party No. 1, before the Rent Controller, so far as the question of bona fide occupation was concerned, was that the opposite‑party No. 1 was likely to retire soon from service when he would have taken up his residence at Pabna, and that he required the premises for keeping his marriageable daughters there under the guardian ship of their uncle in Pabna. It is contended that to make out a case of bona fide requirement for own occupation under the East Bengal Premises Rent Control Act, it must be shown firstly, that the requirement is the personal requirement of the landlord; and secondly, that there is an immediate pressing need having the element of "must have" in it. Short 'of this, it is contended, there can be no question of own occupation under the Act. It is urged that it is clear that so far as the personal requirement of the landlord is concerned, it will not arise until he retires, and thus there is no immediate need. That so far as the question of requirement for residence of his marriageable daughters is concerned, it, is in evidence that they are already residing with their uncle in another rented house, which has been in occupation of the said uncle for quite a long time. Furthermore, that even if this could be an immediate requirement, it was not sufficient to make it the own requirement of the landlord. In support of the is contention the learned Advocate for the petitioners has relied upon the cases of Jagadish Chandra Sarkar and qthers v. Abdul Aziz (7 D L R 314) and Sri Naresh alias Narendra Chandra Sarkar v. Kanai Lai Roy Chowdhury (56 C W N 480); where it has been held that "there is an element of `must have' in the case of `require"', and that it is not sufficient merely to show a `desire' for the premises. I entirely agree that by the use of the word `require' the Legislature clearly intended to indicate that there must be a genuine present need, which must not merely be a desire for the premises; but at the same time, I do not think, that it A goes to the extent of saying that the word requirement con notes that there must be an absolute necessity. So far, however, as the need for the housing of the marriageable daughters is concerned, in my opinion, even the element of must have is present there, because the fact, as sought to be urged by the learned Advocate for the petitioners, that the opposite party landlord possesses a house in a village not very far from the town of Pabna, does not, in my view, affect the question of his need for a house in the place, where, according to the evidence, the daughters are already staying under the guardian ship of their uncle. The only question, to my mind, therefore, in this case is as to whether the need of the daughters comes sufficiently within the meaning of own occupation for the purposes of this Act. It would, in my opinion, be putting too narrow a construction on the word own occupation' to say that the words were limited to the personal occupation of the landlord himself and of none others. It seems to me that the words own occupation must embrace the occupation of the landlord himself personally as also of such members of his family as are dependant on him. There does not appear to be any direct authority on this question so far as' the interpretation of these words, under the Rent Control Act prevailing in East Bengal or similar legislation that had been introduced in Bengal since the war, is concerned. But, in the view that I am taking, I find support from a deci sion of the Bombay High Court in the case of the Institute of Radio Technology and others v. Pandurang Baburao (A I R 1946 Bom. 212), where Divatia and Lokur, JJ., while considering the words `own occupation' under the Bombay Rent Restriction Act, 1939, held that the words `his own occupation' mean occupation of himself and all persons who are dependant on him, and in this sense held that in that particular case the occupation of a family dependant upon the landlord consisting of his son, his widowed sister and two daughters of the widowed sister as also two daughters of one of his daughters and his cousin constituted `his own occupation' within the meaning of that Act. It is obvious that the precise limits of the family cannot be laid down, but must depend on the circums tances of each case.. At any rate, I have no doubt in my mind that the occupation of one's own dependant daughters or sons C would be sufficient to bring it within the meaning of `own occupation' under the present Act. In this connection, I may also refer to a decision of a King's Bench Division in the‑case of Smith v. Penny (L R 1947 K B D 230), where under the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, a landlord could only require a house to be vacated for occupation 'as a residence for himself', it was held that that included residence of his wife and family. There the contention that the words `for himself' must be strictly interpreted was rejected, and it was held to cover a case of a landlord wanting the house as a family home, whether he lived in it himself, or whether being, for instance obliged for the sake of earning his income to live elsewhere, he could not live in it, but required it for housing ‑his two children in the care of his house‑keeper. In this view of the matter if the requirement for immediate housing of his two marriageable daughters in the present case came within the meaning of 'own occupation' under the East Bengal Premises Rent Control Act, then it is clear that the immediate or absolute necessity was also there, and there can be no question that since the opposite‑party landlord owned other premises in a village in the vicinity of the town of Pabna or somewhere else or that since his brother was in occupation of another rented premises in the same town, those were circumstances which would disentitle the landlord from housing his children in his own premises. As regards the question of default the learned Advocate for the petitioners attempted to argue, firstly, that the Courts below acted illegally and with material irregularity in con sidering this question at all, for according to him, all that subsection (1) of section 17 prevents is the passing of an order or decree for recovery of possession of a premises if the rent allowable by the Act has not been paid. According to him this does not affect the question of granting of permission to institute a suit to eject. This argbment is, in my opinion, wholly misconceived, and totally at variance with the provisions of 'subsection (2) of section 19 of the said Act, where it has been specifically provided that on receipt of an application from the landlord for such permission, if the Controller is satisfied that there has been no such non compliance with the provisions of this Act as to the payment or deposit of rent or that reasonable grounds exist for such non‑compliance, and if the tenant has paid to the landlord or has deposited in the manner provided by the Act all arrears of rent then he shall refuse such permission. The ‑section further goes on to say that if the Controller is not so satisfied or if the tenant has not so paid or deposited the rent as allowed in this Act the Controller shall make the order applied for. It is thus clear from the above provisions that the Rent Controller as also the appellate Court were perfectly competent to go into this question, and had in fact to be satisfied about this question before they could make any order one way or the other. Next it was sought to be urged that in so far as all the arrears of rent upto May 1954, had been deposited by the petitioners, and that applications for permission to make further deposits were now pending in the Court of the Rent Controller there had in fact been no default at all. In answering this question the learned Advocate for the opposite party No. 1 points out that the deposit must be of all arrears before an order granting permission is made. In other words deposits must be of all arrears up to the date of the order. So according to the learned Advocate for the opposite‑party landlord, even if the tenants have deposited rent upto the month of May 1954, they still continue to be defaulters because arrears since May 1954, have neither been paid not deposited in accordance with the provisions of the Act. In support of this contention the learned Advocate for the landlord has relied on the decision in the case of Keshab Mitter v. Mrs. P. Ghose alias Mrs. Latika Ghose (49 C W N 728), where it was held that the material time to consider whether there has been default in the payment of rent is the date on which the D decree in the suit comes to be passed by the Court. Accord ing to their Lordships Mitter and Akram, JJ., the words `so long as' occurring in paragraph 9 of the Calcutta Rent Control Ordinance, under consideration before them, as in sub section (1) of section 17 of the Act before me, indicates a continuity of payment, and the opening words of that sub‑paragraph indicate the terminus of that continuity. It is clear, therefore, that even this deposit up to May 1954, is of no assistance in the present case to the tenant, and he is clearly a defaulter. In these circumstances, I see no reason to hold that the orders of the Courts below are in any way illegal or irregular, and I accordingly discharge the Rule with costs. K. B. A. Rule discharged.