Manmatha Nath Sadhukhan. vs Abdus Sobhan

P.B. Mukharji, J.—This is a suit by the Plaintiff for the recovery of possession of a portion of premises No. 23, Colootola Street, Calcutta, for a decree for Rs. 1,840, being the arrears of rent and for mesne profits. The case of the Plaintiff is that he is the owner of the said premises and that the Defendant was a monthly tenant under him in respect of the entire top floor (excepting the separated portion) and one room on the ground floor of the said premises at a rental of Rs. 80 per month. It is pleaded that the Defendant has not paid to the Plaintiff or deposited with the Rent Controller any rent in respect of the said, premises since the month of April, 1947, and therefore, the tenancy of the Defendant has been terminated ipso facto by reason of the provisions contained in Section 12(3) of the Rent Act of 1948. This suit was instituted on May 14, 1949.

The written statement was filed by the Defendant in this suit on July 13, 1949. It is a long and prolix written statement drafted by an attorney. Repeated comments have been made by this Court against the practice of attorneys drawing pleadings. I myself have said so on a number of occasions. It seems to me that these comments had so far gone unheeded. I, therefore, propose in this case to take a more drastic step this time and disallow the costs of drawing the written statement to the attorney as between him and his client. The written statement is long and verbose and it sets out in extenso two long letters in the body of the written statement. The rule of the pleading is that they should not be so set out in the body of the pleading and it is the effect only of the correspondence that should be briefly stated and if the correspondence is of a great materiality, it may be annexed to the pleading. That is the requirement of Order VI, Rule 9 of the Code of Civil Procedure.

Mr. Rahman, who appears for the Defendant, raises the following issues:

(1) Is there a default in the payment of rent by the Defendant as stated in para. 3 of the plaint?

(2) To what relief, if any, is the Plaintiff entitled?

Issue No. 1. Default is the main issue in this case. On the frame of the issue, it has been urged that it does not raise the question of ipso facto determination. I do not, however, consider that there is any substance in this contention. The default is pleaded in para. 3 of the plaint and para. 4, which pleads ipso facto determination, is the submission based on the fact pleaded in para. 3. In any event, Mr. Rahman finally concedes that the issue can be amended so as to raise the question of ipso facto determination of the Defendant''s tenancy under the provisions of Section 12(3) of the Rent Act of 1948, which, really, is the main issue in this case.

The facts admitted in the evidence by the Defendant should, in my view, be stated at the outset. They are as follows : Rent was paid, by the Defendant to the Plaintiff only upto June, 1946. Thereafter, rent was deposited by the Defendant with the Rent Controller, but that was only upto March, 1947. Nothing has been paid since April, 1947 and in fact the Defendant admits that, for more than a period of two years and a half, not a single farthing has been paid by the Defendant to the Plaintiff either by way of rent or as mesne profits. At the date when the suit was instituted, twenty-three months'' rent was in arrears, amount to Rs. 1,840 calculated since April, 1947. The Plaintiff claims this mm of Rs. 1,840 as arrears of rent and he also claims mesne profits from March 1, 1949, as, on the pleading, the ipso facto determination of the tenancy took place after default in the payment of rent for December, 1948 and January and February, 1949. (sic) need only add that the Rent Act of 1948 came into operation on the 1st December 1948.

The defence is twofold.

The first defence is a claim by Mr. Rahman that his client, the Defendant, is entitled to set off the municipal rates and taxes, which the Defendant has paid in respect of the said premises. The total amount that the Defendant has paid towards such rates and taxes amounts to Rs. 1,373-7. It represents rates for the second quarter, 1946-47, in respect of July, August and September, 1946 and fourth quarter, 1948-49, in respect of January, February and March, 1949. Reliance is placed on behalf of the Defendant on the provisions of Section 199(4) of the Calcutta Municipal Act which provides:

If any sum is paid by or recovered from any occupier or sub-tenant of any land or building under this section, he shall be entitled to deduct the sum from the cent payable by him in respect of such land or building for the period for which the arrear of consolidated rate was due or for any subsequent period.

It is, therefore, argued that the Defendant is entitled to deduct the payment of the rates and taxes from the rent that is payable by the Defendant to the Plaintiff and it is submitted that, if such deduction is allowed, then there will be no default for three months within the meaning of the Rent Act of 1948, so as to involve the statutory forfeiture of the tenancy as provided therein. The argument is further developed by reference to Section 12(5) of the Rent Act of 1948 and it is suggested the words "to pay" in the statute are not qualified by the words "in accordance with the "provisions of this Act" and that the words "rent payable" are to be construed as amount of rent after the statutory deductions permitted by Section 199(4) of the Calcutta Municipal Act. The ground should be cleared first with reference to certain facts m respect of these rate bills. The arrears of rates for the second quarter of 1946-47 in respect of the months of July, August and September, 1946 were not paid by the Defendant until a period between October 5, 1948 and November 25, 1948. That will be apparent from a reference to the rate-bills which are marked as Ex. 3 in this suit. It will be seen, therefore, that the payments were made about two years" after. Section 199(4) of the Calcutta Municipal Act permits deductions from the rent that is payable for the period for which, the arrears of consolidated rate is due or for any subsequent period. Payment for this period from July, August and September, 1946, does not, therefore, obviously relieve the statutory forfeiture for the default for the months of December 1948 and January and February, 1949, under the Rent Act of 1948. The rates for the fourth quarter of 1948-49 in respect of the months of January, February and March, 1949, is more relevant on the point. It appears from the rate-bills that this payment was a rush payment and in fact was paid on or about February 8 1949, which date appears from the rate-bills and that is a date before March, 1949 expired. These are the facts about the payment of the rates.

I will deal first with the question of construction that has been raised before me. In my view, on a proper interpretation Section 12(5) of the Rent Act of 1948, the words "in accordance with "the provisions of this Act" qualify both the words "pay" and "deposit". That seems to me to be the plain and ordinary meaning. What the statute intended was that there should be forfeiture, if either the payment or deposit was made in accordance with the Act. I do not see any sensible principle by which I ought to distinguish and say that the "deposit" may be in accordance with the Act, but the "payment" need not. There are detailed provisions for the payment of rent as well as for the deposit of rent under the statute. For instance, all the elaborate provision made in sub-paras, (a), (6) and (c) of Sub-section (1) of Section 12 as well as the provisions in Sub-section (2) of Section 12 relate to payment of rent and such payment I must have to consider payment in accordance with the provisions of the Act. It is argued that I must give; strict construction of Section 12(3) of the Act in favour of the tenant and against the landlord, because it relates to forfeiture of tin tenancy. It is equally true that this is a statute which restricts and considerably curtails the right of the landlord under the ordinary law to evict the tenant on the ground of non-payment of rent and I consider the correct principle is to hold the balance equally between the landlord and the tenant. The canon of construction which I would prefer to follow in this case is the one which appears to me to be the plain meaning of the provisions of this statute on a plain reading of the same. Then again, the words "rent payable" u/s 12(3) on a proper construction, in my view, cannot mean such rent as remains after statutory deduction permitted by other statutes. The word "rent" in this sub-section must, in my judgment, mean rent without any deductions, except under any agreement between landlord and tenant. Here again, I prefer to adopt the ordinary and plain meaning of the word "rent".

This argument advanced by Mr. Rahman, in my view, cannot be sustained at all, having regard, specially, to the opening words of Section 12(3) of the Act, which are "notwithstanding anything contained in any other law for the time being in force". Therefore, whatever the provisions of Section 199(4) of the Calcutta Municipal Act may be, it seems to me that Section 12(3) of the Rent Act of 1948 cannot and should not be read as subject to the Calcutta Municipal Act. So, even if the contentions on Section 199(4) of the Calcutta Municipal Act of Mr. Rahman were correct, the provisions contained in that part of the Calcutta Municipal Act cannot prevail against the Rent Act of 1948, in case of a conflict.

But, I am convinced that, even on the construction of Section 199(4), no case has been made out by the Defendant in the evidence in this case to bring himself within the statutory right of deduction as contemplated therein. Section 199 of the Calcutta Municipal Act provides that if a sum due from the owner on account of the consolidated rate remains unpaid, after notice of payment has been duly served upon the owner, the Corporation may cause a notice of payment to be served upon the occupier of such land. After such notice of payment has been served on the occupier, if the occupier fails within fifteen days from such service to pay the amount demanded, then the amount may be recovered by distress and sale. It is that kind of payment by the occupier which entitles him to the right of statutory deduction from rent contemplated under Sub-section (4) of Section 199 of the Calcutta Municipal Act. The first condition, therefore, to claim such statutory right of deduction is that there must be a service of notice of demand upon the occupier. Notice of demand is a very formal and technical document within the meaning of Section 190 of the Calcutta Municipal Act. The Defendant, who came to give evidence, has made no suggestion whatever that any notice of demand was made upon him, nor has he produced that notice of demand in this suit. Before an occupier claims to deduct the amount of rates he has paid from the rent that he is liable to pay to his landlord, he must, in my opinion, satisfy this condition that the payment of the rates to the Corporation by the occupier was not voluntary but was under a notice of demand. As there is no such evidence, I am of the view that the Defendant has not made a case which could establish his right to deduct such payment of the rates as he has made from the rent that is payable by him to the Plaintiff. All that the Defendant says in his evidence is that for some time he had to pay because he was told that if it was not paid then all the goods that were there would be attached and taken away. That evidence is contained in the Defendant''s answer to question No. 88. Apart from the fact that it was hearsay evidence that is contained in this answer, it is quite inadequate and insufficient to establish a statutory right to claim deduction from rent u/s 199(4) of the Calcutta Municipal Act.

Then again, the words of Section 199(4) of the Calcutta Municipal Act are that a occupier shall be entitled to deduct the arrears of rates paid by him. Therefore, in a proper case, he must elect to deduct. But what are the facts in this case? He paid rates for. July, August and September, 1946, but did not deduct such payment from the rents. He continued to deposit the rents till March, 1947, without any deduction for such payment which he made for rates. It appears to me that the correct position is that the Defendant made payment towards rates and taxes amounting to Rs. 1,373-7, but he neither intimated at the time of payment nor even after making the payment or soon after making the payment to the Plaintiff that he had done so. When the matter was brought to the notice of the Plaintiff, the Plaintiff quite rightly pointed out that no information or intimation had been given to him of the demand for such rates or the payment of such rates by the Defendant himself, but, if, in fact, the Defendant had paid any rates then credit would be given to him on that account by the Plaintiff. That seems to me a perfectly honest attitude on the part of the Plaintiff and it appears to me, he is supported by the correspondence that is disclosed in this suit. In particular, I will refer to the two letters, one dated April 1, 1949, written by the Defendant''s solicitor to the Plaintiff which will be found at p. 17 of the admitted brief of documents marked as Ex. A in this suit. It is, therefore, the first time intimation is being sent to the Plaintiff that a sum of Rs. 1,373-7 had been paid by the Defendant on account of rates. It should be remembered at this stage that one payment of rates was in October/November 1948 and the other payment of rates was on the 8th February 1949 and this intimation was being sent long after. The reply to this letter was given by the Plaintiff''s solicitors under the date May 2, 1949 and will be found at p. 19 of the brief of documents marked Ex. A. In that letter, the Plaintiff''s solicitors make it quite clear that the Plaintiff is not aware whether the Defendant paid the said amount or not and that the Defendant never informed the Plaintiff when the Corporation of Calcutta demanded payment of rates and taxes from him, but, if the Defendant had paid anything, for taxes, the Plaintiff was agreeable to give him credit for the same against the rent due to the Plaintiff. It appears to me from the correspondence that this particular arrangement, which the Plaintiff offered through his solicitors'' letter, was not disputed. The position, therefore, is that the payment of these rates has been made by the Defendant and he must be given credit for the amount that he has paid. But it is quite a different thing to say that, because he has paid, he is entitled to claim the statutory right of deduction u/s 199(4) of the Calcutta Municipal Act to save himself from statutory forfeiture u/s 12(3) of the Rent Act of 1948.

I, therefore, hold that the payment of the rates and taxes by the Defendant, on the facts and circumstances of the case, as well as on the interpretation of Section 12(3) of the Rent Act of 1948 and Section 199(4) of the Calcutta Municipal Act, does not relieve the Defendant of the statutory forfeiture that he has incurred u/s 12(3) of the Rent Act of 1948.

The second line of defence is this. On or about July 20, 1945, there was an agreement between the Plaintiff and the Defendant, by which the Plaintiff is supposed to have agreed to grant a lease of the said premises for a period of fifty years at the rate of Rs. 80 per month and that the Plaintiff would pay Rs. 10,000, alleged to have been spent by the Defendant for certain constructions. This plea can be gathered from the prolix pleading continued in para. 3(e)(1) and (2) of the written statement which are to be found at pp. 9 and 10 of the written statement.

On the basis of this plea, another suit, being suit No. 1446 of 1948, has been filed by Abdus Sovan, the Defendant in this suit, against Manmatha Nath Sadhukhan, the Plaintiff in this suit, for specific performance of this agreement. It has been agreed by counsel of both sides that the suit for specific performance will be governed by the judgment in this suit and that no fresh evidence will be called in that suit for specific performance.

In support of this defence, the Defendant in this suit for ejectment has relied on the contractor Ayoob''s bills, which are marked as Ex. 2 in this suit, secondly, the draft lease which is marked as Ex. B and thirdly, on certain photographs and receipt marked as Exs. 5, 6, 7, 8 and 9.

(After a consideration of the evidence, his Lordship held that the Defendant''s case on these points is incredible.)

So far as the evidence of the Plaintiff is concerned, his case is that he agreed with the Defendant that he can have certain alterations and additions amounting to Rs. 2,000 and he agreed to pay that sum to the Defendant. He does not dispute that some alterations and additions were made and his case is that such alterations that were made were worth Rs. 2,000 and he had paid Rs. 2,000 to the Defendant. The payment that he shows is Rs. 1,500 from the receipts which he issued as rent receipts although no rent was paid by the Defendant. In other words, Rs. 1,500 was paid by the Plaintiff by issuing rent receipts for the sums which the Defendant had not paid and it was by issuing such'' rent receipts that Rs. 1,500 was adjusted. The balance of Rs. 500 was the value of doors and windows and the timber used which the Plaintiff provided for the Defendant. The receipts are to be found at pp. 7 to 11 of the agreed brief of documents marked as Ex. A. In spite of the cross-examination of the Plaintiff on this point, I have come to accept the testimony of the Plaintiff. I find that the nature of the receipts are such that it supports the Plaintiff''s case. Take for instance, counterfoil, dated May 17, 1943, where nine months'' rent is being receipted from April to December. I am also convinced by the demeanour of the Plaintiff in the box and I accept his testimony without hesitation.

I, therefore, hold that both these defences fail and the tenancy of the Defendant is ipso facto determined, under the provision of Section 12(3) of the Rent Act of 1948 and I answer the issue accordingly.

(His Lordship then commented further on the evidence of the Defendant and held that he had no hesitation in holding that his evidence was not worthy of the least credit.)

In these circumstances, the Plaintiff is entitled to judgment. There will be judgment for the Plaintiff for possession of the portion of the premises No. 23, Colootola Street and for mesne profits at the rate of rent from March 1, 1949, until delivery of possession. The Plaintiff has, in my view, also proved the claim of Its. 1,840, against which credit should be given for the sum of Rs. 1,373-7 being the total amount of rates and taxes paid by the Defendant. Therefore, there will be also a judgment for Rs. 466-9.

The Plaintiff is entitled to the costs of this suit; certified for two counsel.

As the judgment in this suit is agreed to govern the judgment in the next suit, the next suit between Abdus Sobhan v. Manmatha Nath Mallik is dismissed with costs. On the evidence, as I find Abdus Sobhan does not succeed in establishing a claim for specific performance. I cannot see anything in the conduct of Abdus Sobhan which can prove that he was ever ready or willing at any stage to perform the alleged agreement. This is apart from the fact that I find from the evidence that the agreement is not proved and there is no concluded term of the agreement which, in my discretion, I would ever order to be specifically enforced. The suit, therefore, being suit No. 1445 of 1948, Abdus Sobhan v. Manmatha Nath Mallik must be dismissed with costs.