Shiba Prasad Mukherjee vs Dhirendra Chandra Mukherjee

Binayak Nath Banerjee, J.—One Golap Basini Debi, -owner of premises No. 3, Lansdowne Road, Calcutta, instituted a suit for eviction of the tenant Defendants, a public school and the secretary of its governing body, in a representative capacity. Later on, the members of the governing body were also added as Defendants. The suit was filed on July 12, 1949, when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 was in operation. Golap Basini is now dead and her heirs have been substituted in her place.

It was alleged in the plaint that the Defendants were habitual defaulters and had not paid or deposited rent for the months of October, 1946, to December, 1948. In para. 4 of the plaint it was further alleged as follows:

That the said Defendant has further failed to pay or deposit the rent for three consecutive months, which accrued due after the commencement of the aforesaid Act, for December, 1948 and January and February, 1949. That on failure of the Defendant to pay or deposit the rent for three consecutive months by the 1st March 1949, the interest of the said Defendant in the aforesaid premises has been ipso facto determined and the Defendant is no longer a tenant under the Plaintiff in respect of the premises in suit.

During the pendency of the suit before the trial court the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into operation on March 31, 1950. Thereafter, on February 27, 1952 the Plaintiff filed an application u/s 14(4) of the Act of 1950 for1 an order on the tenant Defendant to deposit the arrears and the current rent month by month. The trial court determined that a sum of Rs. 2,925 was m arrear as rent up to May, 1952. The tenant-Defendant was directed to deposit the arrears of rent within 15 days of the date of the order and also to pay current rent at the rate of Rs. 45 per month from June, 1952 onwards. This order, dated June, 3, 1952, was complied with by the Defendant.

The learned Munsif held that under the Rent Control Act of 1948 the tenancy of the Defendant must be deemed to have ipso facto terminated on account of non-payment of rent. But the learned Munsif was of opinion that by virtue of the provision of Section 18(1) (introduced by the Amending Act III of 1950 on November 30, 1950) the tenant Defendant was entitled to the benefits of Section 14(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, of 1960, being of the further opinion that he was not hit by the proviso to Section 14(5) of the said Act. The learned Munsif, therefore, passed the following order:

That the suit would be dismissed on contest without cost provided the Defendant deposit Rs. 1,327-4-9 *** within is days from the date of the order. In default the suit will be decreed on contest. The Plaintiff is at liberty to withdraw the amount in deposit.

The Defendant having had deposited the sum of Rs. 1,327-4-9 as directed, the learned Munsif dismissed the suit, on March 3, 1953.

The Plaintiff appealed to the first appellate court against the decree of the trial court. The tenant-Defendant also filed a cross-objection against the finding that they were defaulters. During the pendency of that appeal the Plaintiff unconditionally withdrew the said sum of Rs. 1,327-4-9 deposited by the tenant under the order of the trial court referred to above.

Relying on a Full Bench decision of this Court, Ajit Kumar Roy Vs. Surendra Nath Ghose, the first appellate court held that the tenant-Defendants were entitled to the benefits of Section 14(7) read with Section 18(5) of the Rent Control Act of 1950, and in that view of the matter held that the trial court had rightly decided the suit. The first appellate court gave an additional reason why the appeal should be dismissed. It held that by reason of the unconditional withdrawal of the sum of Rs. 1327-4-9 the Plaintiff had submitted to the decree of the trial court and as such had waived his right to proceed with the appeal. The first appellate court dismissed the appeal, it also dismissed the cross-objection.

Against the decree of the first appellate court the Plaintiff preferred a second appeal to this Court. The second appeal came up for hearing before Renupada Mukherjee, J. It was contended before his Lordship on behalf of the Appellant, that the withdrawal of money would not operate as a bar because the right to appeal and the right to prosecute the appeal were statutory rights and the Appellants predecessor having had exercised that right it could not be said that the right was lost or waived by withdrawal of the money. Reliance was placed in support of the contention on certain observations in the cases Sarat Kumari Dasi v. Amulyadhan Kundu (1922) 27 C.W.N. 629 (P.C.), Hurrybux Deora v. Johubmull Bhotoria (1928) 33 C.W.N. 711, Gopesh Chandra Aditya v. Benode Lal Das (1936) 40 C.W.N. 553, and Lissenden v. C.A.V. Bosch Limited [1940] A.C. 413

Renupada Mukherjee, J., however, dismissed the appeal with the following observations:

I agree with this contention of Mr. Mukherjee and hold that the present case does not tall within the principles relating to her of appeals aid down in the cases reported in Burrybux Deora v. Johubmull Bhotaria (1928) 33 C.W.N. 711 and Gopesh Chandra Adity v. Benode Lal Das (1936) 40 C.W.N. 553, which the learned Judge of the Lower appellate court seems to have applied to this case. The learned Judge has also said that the Plaintiff cannot be allowed to "approbate and reprobate". I do not see how that principle can be attracted to this case. The trial court dismissed the suit after the tenant had complied with its direction for depositing a sum of Rs. 1,327-4-9, Although the final order was one for dismissal of the suit, that order must be read with the above direction and it must be held that there was a decree for Rs. 1,327-4-9 against the tenant school. If the Plaintiff withdrew that amount after filing the appeal I cannot see how the doctrine of "approbate and reprobate" or the equivalent doctrine of election can be invoked against the Appellant.

From the foregoing observations, it would be clear that I do not agree with the reasons given by the lower appellate court for dismissal of the appeal. But that does not dispose of the present appeal. I have yet to consider what is the effect of the unconditional withdrawal of the money by the Plaintiff when her appeal was pending in the lower appellate court. In my opinion, the withdrawal is tantamount to a satisfaction of the decree and the legal consequence of the withdrawal is that the appeal of the Plaintiff in the lower appellate court became incompetent after the withdrawal. I have already said that in order to understand what decree was actually passed by the trial court the conditional order passed on February 24, 1953, and the final order dismissing the suit on March 11, 1953 must be read together. The combined effect of these two orders is that a sum of Rs. 1,327-4-9 was decreed in favour of the Plaintiff in lieu of her claim for ejectment. This amount was duly deposited in the trial court by the tenant-Defendant. As soon as the Plaintiff withdrew the amount the decree was satisfied and the appeal preferred by the Plaintiff could not be prosecuted after such satisfaction of the decree. It may be that the Plaintiff withdrew the money upon wrong legal advice and without understanding the legal implication of such withdrawal. But that will not prevent the law from taking its course.

His Lordship, however, granted to the Appellant leave to appeal under Clause 15 of the Letters Patent. This is how the matter comes before us. We agree with the decree made by Mr. Justice Renupada Mukherjee but on a line of reasoning somewhat different from that given by his Lordship.

In the suit for eviction the Plaintiff pleaded that the tenant-Defendants had disentitled themselves to the protection against eviction by reason of statutory default in payment of rent. It is not disputed now that by reason of introduction '' of Section 18(5), under Act LXII of 1950. Section 14 of the Rent Control Act of 1950, would govern the instant case. u/s 14(1), in a suit for recovery of possession where the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 12 (that is to say, statutory defaults in payment of rent) the court is to determine the amount of rent legally payable by the tenant and rent in arrears and make an order on the tenant to pay the amount of rent due with statutory interest thereon and such costs as the court may allow, within 15 days from the date of the order. Under Clause (3) of Section 14, if within the time fixed the tenant deposits in the court the sum specified in the said order, the suit so far as it is a suit for recovery of possession shall stand dismissed. In default of such payment the court is to proceed with the hearing of the suit. Under the. proviso to Sub-section (3) of Section 14, the benefits of Section 14 shall not be available to a tenant if he has made default in payment of rent referred to in Section 12(l)(i) on three occasions within a period of 18 months. Therefore, under the scheme of Section 14 a court shall not make an order under Sub-section (1) of Section 14, if the proviso to Sub-section (3) applies to the case. In the instant case there is no dispute that the proviso to Sub-section (3) of Section 14 applies. That being the position an order under Sub-section (1) of Section 14 should not have been made and the tenant-Defendants were not entitled to defeat a decree for eviction by depositing in court the amount ordered under Sub-section. (1) of Section 14. The Plaintiff landlord, therefore, had a good appeal, against the decree for dismissal of the claim for eviction made by the trial court. Having had preferred such an appeal the Plaintiff chose to withdraw the amount deposited by the Defendants. That again the Plaintiff did unconditionally, that is to say without prejudice to her right to pursue the appeal. The question, therefore, arises whether by such withdrawal the Plaintiff disentitled herself from further proceeding with the appeal.

The law on the point was laid down by Rankin, C.J. (CO. Ghosh, J. agreeing with him) in the case Hurrybux Deora v. Johurmultl Bhotoma (supra). According to his Lordship there is no rule that acting in any way on any order necessarily debars a party from appealing against that order. The only principle is that a party cannot challenge an order after accepting the benefit of the terms imposed in his favour as a condition of that order upon the opposite party at whose instance the order was made.

In the present case the order u/s 14(1) was made at the instance of tenant-Defendants." The order for deposit of all sums due as rent, together with interest and cost, was made for the benefit of the Plaintiff. She might as well have refused to accept the said benefit and challenged the decree of dismissal. Instead of accepting rents due from the tenants, with interest and cost, deposited by them, in compliance with the order u/s 14(1), she might have elected to take her chance to get a decree according to her claim by successfully prosecuting the appeal. But the colour of money tantalised her. She could not resist the lure of a considerable sum of money, deposited by the tenant-Defendants which became immediately available to her by virtue of the order made by the trial court. That money was temptatiously seductive money. (By accepting such money the Plaintiff must be deemed to have been seduced to a position wherefrom she could not challenge the order which made such money available to her

In the case of Hurrybux Deora (supra) Rankin, C.J. summarised some of the English authorities on the point in the following language:

Coming now on to the English eases, Tinkler v. Hilder (1849) 4 Exch. 191 was a case in which the Judge on summons made an order to stay an action for trespass on payment of the costs of the day and of the execution of a certain writ of enquiry. These costs had been taxed and paid. On a motion to resumed the order, it was contended that the Plaintiff could not now question the order after having allotted it and acted under it by accepting the costs. King v. Simmonds (1845) 7 Q.B. 289 and Pearce v. Chaplin (1843) 9 Q.B. 802 were cited. In reply it was argued that in those case the costs were given by the order and could not otherwise have been obtained whereas in the present case they would have following the judgment. Parke B. replied, "you have obtained them more speedily by mean of the order which give you the advantage. You have, therefore received the benefit under the order and cannot now say it is valid for one purpose and invalid for another.

Applying the ratio decided in the aforesaid cases we find that the Plaintiff in the instant case not only accepted the rent due but an amount of interest on such rent to which she would not have been entitled but for an order u/s 14(1) of the Rent'' Control Act of 1950. She also took the benefit of a speedy recovery of the rent, due to her, by withdrawing the money deposited by the tenant. Having thus taken the benefit of the order u/s 14(1) read with Section 14(3) it befits her to pursue her appeal against that order.

In the view that we take we are of the opinion that the second appeal to this Court was rightly dismissed. We, therefore, dismiss the Letters Patent appeal with costs.

Amaresh Roy, J.

I agree.