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TMI Blog1951 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... t of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, but the possession of such ? premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this subsection till the application has been dismissed under sub-section(4). 2. The facts of the case shortly are these: The plaintiff (landlord) filed a suit for possession of certain rooms in premises No. 21B Canning Street, Calcutta. It was filed on May 13, 1948. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and costs as contemplated by that section of the Act of 1948 had not been paid. The defendant's counsel's argument at the hearing was that only the rent had to be paid within the month, but not interest or costs. He said that costs at the time of the hearing were not assessed or ascertained. So he contended that if the arrears of rent were paid within the time mentioned in Section 12 (1) (b), his client would be entitled to pay interest and costs at any other time and yet would be entitled to get relief. This contention was not accepted by the Court and a decree for possession and mesne profits was made on January 30, 1950. I set out below the following portion from the judgment delivered on that occasion : In my view the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions) (Amendment) Act, 1950, the Act of 1950 has been amended; the amendments are retrospective in their operation: under the amended Act the applicant is not a tenant who is entitled to the relief claimed. The relevant sections are Sections 5 and 6 of the Amending Act. They are as follows: 5. In all applications made under sub-section (1) of Section 18 of the said Act, which are pending at the commencement of this Act and in all suits referred to in sub-section (5) of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied. 6. Where at any time between the commencement of the said Act and of this Act, an order or decree for the recovery of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decree was passed' on the ground of default in payment of arrears of rent. Though in the plaint the landlord claimed arrears of rent, at the time of the hearing it was admitted by the landlord's counsel that all arrears had been paid. If arrears of rent had been paid, how could a decree possibly be passed on the ground of default in payment of arrears of rent? It is quite true that the plaint was filed on the ground that rent was in arrears, but that by itself does not make the decree, a decree passed on the ground of default in payment of arrears of rent. By accepting rent before the hearing of the suit, the landlord waived the default and it was no longer open to him to say that he asked for a decree for possession on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd becomes entitled to press his common law right of ejectment and the claim becomes irresistible, In this case the tenant did not pay the interest and costs and so the decree was made. On these grounds I am unable to hold that the decree was passed on the ground of default in payment of arrears of rent. 9. With regard to the second contention of Counsel for the appellant, it will appear from Sections 5 and 6 which I have already set out that if at the date of the commencement of the Act, namely, the Amending Act of 1950, there were applications pending for relief under Section 18 (1) of the Act of 1950, the provisions of the Amended Act will apply. By amendment, in Section 18 (1) of the Act of 1950, for the words: on the ground of def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tenant made cannot be said to have been pending at the commencement of the amending Act. The amending Act came into force on November 30, 1950 and Bachawat, J's order was made previous thereto, namely, on May 24, 1950. Therefore said Mr. T. P. Das that this application was not pending at the date when the amending Act came into force, having been disposed of by Bachawat J. long before, that date. But the appeal was preferred from Bachawat J's order on September 1, 1950 and once the appeal was preferred from the order that order lost its finality. A decision liable to appeal may be 'final' until the appeal is preferred, But once the appeal is filed the decision loses its character of 'finality' and what was once r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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