P L D 1961 Dacca 25 (PLP)

3. This application was resisted by the tenant who is the petitioner before me. He pointed out that so far as the question of default is concerned, the landlord had instituted two Small Cause Court suits fur the recovery of the arrears of rent and in both the suits certain compromises had been effected and payments were being made in accordance with the said compromises. Hence there is no question of default at all. Secondly, it is urged on his behalf that the requirements of the constituted attorney could not be a valid or sufficient requirement under the provisions of the East Bengal Premises Rent Control Act, 1953.

4. The House Rent Controller had only dealt with the question of the bona fide requirement of the landlord and refused permission on the ground that the case of the requirement of the constituted attorney could not be considered as the landlord himself was residing in India.

5. On appeal, however, the learned District Judge took the view that since the power‑of attorney granted to the constituted attorney was a general power giving him absolute right to deal with the property mentioned therein in any way he liked just like a full owner, therefore, the bona fide requirement of the constituted attorney was a question entertainable in law. The lower Appellate Court also took the view that the tenant was a defaulter in the eye of law notwithstanding the compromise decrees in the Small Cause Court suits and hence granted the permission to evict him.

6. I will take up for consideration the second point first. It appears from section 17 of the said Act that a tenant is not protected under the said Act where the premises are bona fide required by the landlord either for the purposes of building or re‑building or for his own occupation or for the occupation of any person for whose benefit the premises are held, or where the landlord can show any cause which may be deemed satisfactory ' by the Court.

7. It will be noticed that in this section the words used are that "the premises are required by the landlord either for his own occupation or for the occupation of any person for whose benefit the premises are held." Neither of these two categories includes the constituted attorney of the landlord : for, the occupation or the use of the constituted attorney is certainly neither for the own occupation of the landlord nor for the occupation of any person for whose benefit the premises are held. It is, however, urged that it is a case where the landlord should be taken to have shown cause which may be deemed to be a satisfactory cause within the meaning of the last clause of the said subsection. It is further urged that this clause being disjunctive from the other clauses is not to be construed ejusdem generis but should be taken to be wide enough to include all kinds of causes which may be deemed satisfactory by the Court.

8. My attention is further drawn to the definition given in section 2 (4) of the said Act. It is to this effect " `Landlord ' means any person who for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account, or on account or on behalf or for the benefit, of any other person, or as a trustee, guardian or receiver for any other person, or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant . . . . . ." It is urged on the basis of this definition that a constituted attorney, since he is a person entitled to receive rents on account of or on behalf of his principal, he is a landlord within the mean ing of the Act and hence his requirement is a valid requirement under clause (c) of the proviso to section 17 (1) of the said Act.

9. On the other band, it is urged by the petitioners that if this interpretation is accepted, then the entire provision of section 17 of the Act could, at the sweet will of the landlord, be rendered entirely nugatory, for, by granting a power‑of‑attorney to any person in need of the premises, the landlord could evict the tenant with impunity. It is true that the definition of landlord given in the Act is of a very wide character and a constituted attorney may well come within that definition but, reading section 17 as a whole, it appears to me that by specifying the persons for whose occupation the landlord may lawfully evict a tenant the Legislature clearly intended to specify the category of persons whose requirements should be considered to be valid requirements under the Act. Since a landlord includes, according to the definition, a guardian, trustee or receiver, there would have been no point in the Legislature mentioning in clause (c) to the proviso in section 17 (1) that the bona fide requirement should be either for the own occupation of the landlord or for the occupa tion of any person for whose benefit the premises are held.

10. Again by subsection (4) of section 17 of the said Act, it is provided that, if the premises are not occupied by the landlord or such person within two months of the date of the vacating of the premises by the previous tenant, then the Rent Controller may, on the application of the previous tenant, restore possession of the premises to him. This rather seems to indicate that in section 17 of the said Act the word "landlord " has been used in its ordinarily accepted sense as the owner of the premises or the person entitled to receive the rent from the tenant and not to include persons receiving rent on behalf of such a person. Indeed if the occupation of this wide class of persons is to be held to be a sufficiently valid and bona fide requirement for evicting a tenant, then even a rent collector may well come within this category, for, he would also be a person receiving the rent of any premises on behalf of his employer landlord and for the benefit of that landlord and would thus be a landlord within the definition clause. This would be giving an absurd interpretation to clause (c) of the proviso to section 17 (1) of the Act. In the circumstances, I am of the opinion that the use or occupation of a constituted attorney is not a use or occupa tion which can be considered to be a sufficiently bona fide require ment for the purpose of evicting a tenant.

11. Now, so far as the next ground of default is concerned, it appears that this was not considered by the Rent Controller at all but only in the Appellate Court the learned District Judge took the view that there was a default but the learned District Judge, in so holding, overlooked that in proceeding for eviction for non‑compliance with the provisions of the Act as to the pay ment of rent, section 19 (2) of the said Act provides that the Controller, after giving the tenant in possession of the premises an opportunity of showing cause, must consider all the circum stances of the case and be satisfied that there has been no such compliance with the provision of the Act as to payment or deposit of rent due by such tenant in respect of such premises and that no reasonable grounds exist for such non‑compliance. In the latter event, if the tenant has paid to the landlord or deposited, in the manner in which the deposit is to be made under the Act, rents allowable thereunder before the order for eviction is made, then the Controller should make an order rejecting the application. There is nothing in the judgment to show that the learned District Judge, applied his mind to these considerations or that the parties had any opportunity to adduce evidence to establish any of these circumstances.

12. I, therefore, make this Rule absolute, set aside the order of the learned District Judge, and remand the case to the House Rent Controller to determine in accordance with the provisions of section 19 (2) of the East Bengal Premises Rent Control Act, 1953, whether there has been any non‑compliance with the provisions of the said Act as regards payment or deposit. of rent and further to consider and determine whether any reasonable grounds exist or do not exist for such non‑compliance. Having considered this, the Rent Controller shall proceed to make an order as indicated in the said subsection. The question of bona fide requirement, however, is finally decided to the effect that the requirement of the constituted attorney is not a valid and sufficient requirement for the purpose.

13. In the circumstances, the costs of hearing of this application will abide the result of the hearing before the Rent Controller. K. B. A. Rule made absolute.