# RANITT CHANDRA CHOWDHURY v. MOHITOSH MUKHERJEE

- **Citation:** [1970] 1 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 1969-03-17
- **Bench:** M. HiDAYATULLAH, V. Ramaswami, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ranitt-chandra-chowdhury-v-mohitosh-mukherjee-4733
- **Pages:** 6

## Headnote

West Bengal Premises Rent Control (Temporary Provisions) Act ( 17
o/ 1950), rs. 12(1) and 14(3)-Scopt of.
Wm Bengal Premises Tenancy Act (12 of 1956) s. 24-If retrospective.
The agreement of tenaocy between the landlord aod tenant of certain
premises provided that the monthly rent was to be paid oo or before the
7th of each mooth. For the mooths of Sep1ember 1954 to April 1955 the
rent wu paid beyood the agreed date.
In August 1955, a ooticc determutioa the tenancy was given. but the landlord accepted rent thereafter thus
waivin11 the notice.
In February 1956, a su:ond notice determini"B
the
tenancy was served aod a suit for eviction was filed on March I, 1956, on
the basis that. since the tenant was paying rents beyond the time fixed by
cootract he was in default according to s. 12(1)(i) of the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 by which the
proceedinas were governed.
The tenant contended that : ( l)
As the
rm: waa in fact deposited by him with the
Rent Controller for every
month within the prescribed date since February 1956, the suit for recovery
of posseasion of tho premises was liable to ho dismissed under s. 14(3) of
the A~t, and that the proviso to s. 14(3) under which a tenaot is not
. eotitled to the protectioo of s. 14(3) if there was default on throe occasions
within a period of 18 months, did not apply to him, because, on the acceptance of rent in Septemh<r l 955 there was a waiver of the previous defaults
and a revival o/ the dead tenancy, and therefore, those defaults should not
be counted against him; and (2) s. 24 of the West Bengal Premises Tenancy
Act, 1956, which repealed the 1950-Act provided that the acceptance of
rent in respect of the period of default operated as a waiver of the default
and therefore also, the earlier defaults should not ho counted against him.
HELD : ( 1) In the case of a statutory tenancy a landlord accepti"B
rent does not 11SSCnt to a new contractual tenancy but cootinu"" the old
tenancy. In fact, the tenant's attitude in the present case was that the old
tCllancy was revived and continued. If that were so, the old tenancy, with
the defaults, continued and tho landlord was entitled to rely on s. 12(1)(i)
and the proviso to s. 14(3). Th=fore, the benefit under s. 14(3) was
not available 10 the tenant. [20 E-0)
Ganga Duft Murarka v. Kartik Chandra Das. A.l.R. 1961 S.C. 1067,
Anand Nivas (P) Ltd. v. Anandji Kalyanjfs Ptdhi, A.I.R. 1%5 S.C. 414
and Calcutta Credit Corpn. Lrd. v. Happy HomtJ (P) Ltd. [1968) 2 S.C.R.
20, referred to.
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(2) Section 24 of the 1956 Act puts ao embargo on any claim based on
default in payment of rent when the landlord accepts rent after default.
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Therefore, ti alfecta the substantive right of the landlord. Since tho section
;,, not made retrospective either expressly or by necessary implication it will
only operate from the date on which it came into fora: (March 31, 1956).
and hence, the tenant in the present case C<JU!d rely on it. [20 0-H; 21 A-BJ
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RANJIT v. MOlllTOSH (Hidayatullah, C.I.)
17
A

## Text

RANITT CHANDRA CHOWDHURY
v.
MOHITOSH MUKHERJEE
March 17, 1969
(M. HiDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]
West Bengal Premises Rent Control (Temporary Provisions) Act ( 17
o/ 1950), rs. 12(1) and 14(3)-Scopt of.
Wm Bengal Premises Tenancy Act (12 of 1956) s. 24-If retrospective.
The agreement of tenaocy between the landlord aod tenant of certain
premises provided that the monthly rent was to be paid oo or before the
7th of each mooth. For the mooths of Sep1ember 1954 to April 1955 the
rent wu paid beyood the agreed date.
In August 1955, a ooticc determutioa the tenancy was given. but the landlord accepted rent thereafter thus
waivin11 the notice.
In February 1956, a su:ond notice determini"B
the
tenancy was served aod a suit for eviction was filed on March I, 1956, on
the basis that. since the tenant was paying rents beyond the time fixed by
cootract he was in default according to s. 12(1)(i) of the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 by which the
proceedinas were governed.
The tenant contended that : ( l)
As the
rm: waa in fact deposited by him with the
Rent Controller for every
month within the prescribed date since February 1956, the suit for recovery
of posseasion of tho premises was liable to ho dismissed under s. 14(3) of
the A~t, and that the proviso to s. 14(3) under which a tenaot is not
. eotitled to the protectioo of s. 14(3) if there was default on throe occasions
within a period of 18 months, did not apply to him, because, on the acceptance of rent in Septemh<r l 955 there was a waiver of the previous defaults
and a revival o/ the dead tenancy, and therefore, those defaults should not
be counted against him; and (2) s. 24 of the West Bengal Premises Tenancy
Act, 1956, which repealed the 1950-Act provided that the acceptance of
rent in respect of the period of default operated as a waiver of the default
and therefore also, the earlier defaults should not ho counted against him.
HELD : ( 1) In the case of a statutory tenancy a landlord accepti"B
rent does not 11SSCnt to a new contractual tenancy but cootinu"" the old
tenancy. In fact, the tenant's attitude in the present case was that the old
tCllancy was revived and continued. If that were so, the old tenancy, with
the defaults, continued and tho landlord was entitled to rely on s. 12(1)(i)
and the proviso to s. 14(3). Th=fore, the benefit under s. 14(3) was
not available 10 the tenant. [20 E-0)
Ganga Duft Murarka v. Kartik Chandra Das. A.l.R. 1961 S.C. 1067,
Anand Nivas (P) Ltd. v. Anandji Kalyanjfs Ptdhi, A.I.R. 1%5 S.C. 414
and Calcutta Credit Corpn. Lrd. v. Happy HomtJ (P) Ltd. [1968) 2 S.C.R.
20, referred to.
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(2) Section 24 of the 1956 Act puts ao embargo on any claim based on
default in payment of rent when the landlord accepts rent after default.
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Therefore, ti alfecta the substantive right of the landlord. Since tho section
;,, not made retrospective either expressly or by necessary implication it will
only operate from the date on which it came into fora: (March 31, 1956).
and hence, the tenant in the present case C<JU!d rely on it. [20 0-H; 21 A-BJ
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RANJIT v. MOlllTOSH (Hidayatullah, C.I.)
17
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 299 of
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1966.
Appeal by special leave from the judgment and decree dated
August 14, 1963 of the Calcutta High Court in Appeal from
Appellate Decree No. 1374 of 1960.
B. K. Bhattacharjee, S. C. Majumdar and S. P. Mitra, for the.
appellant.
J. P. Mitter and Sukumar Ghose, for the responden't.
The Judgment of the Court was delivered by
Hidayatullab, C.J. In this appeal, by special leave, the appellant is the tenant of a house No. 120B, Manoharpukur Road,
District 24 Parganas, Calcutta~29 and the respondent is the landlord. Both the tenant and the landlord died after the institution
of the suit and are represented by their legal representatives. The
suit was for ejectment of the tenant for default in payment of
rent as agreed to between the parties.
The suit was dismissed by the Munsif, 1st Court, Alipur, but
on appeal the judgment was reversed by the Subordinate Judge,
8th Court, Alipur whose decree was confirmed on appeal by the
learned Single Judge in the High Court at Calcutta. This appeal
is against the judgment dated August 14, 1965 of the Calcutta
High Court.
The premises were rented out to the original tenant as far
back as May 1944 on monthly rent of Rs. 130. The tenancy
was from month to month.
According to the landlord the rent
of the premises had to be paid on or before the 7th day of each
calendar month. According to the tenant the rent was to be paid
as and when the sarkars came to collect it on behalf of the landlord who employed such agents as he had many other houses
rented out to other tenants. The High Court and the appellate
Court below have accepted the case of the landlord and that is
a finding with which we must start. The monthly rent for eight
months between September 1954 to April 1955 was admittedly
collected and paid beyond the period limited by the agreement.
On k1gust 11, 1955 a notice determining the tenancy was served
on the original tenant and he was asked to quit on the expiry of
the month of August, 1955 on pain of being held liable in
damages at Rs. 5 per day for wrongful occupation from the 1st
September, 1955. On October 2, 1955, the original landlord
accepted rent upto September, 1955 and thus waived the notice
which was given. It appears also that the landlord accepted rent
from November 1, 1955 to February 1, 1956 and granted receipts for the rent.
On February 9, 1956 a second notice determining the tenancy was served calling upon the original tenant
18
SUPREME COUllT REPORTS
[ 1970) I S.C.R.
to deliver possession of the premises on the expiry of February,
1956. The notice this time also added a condiuon that in case
the original t.enant overstayed in the premises beyond February,
he would be liable to damages.
The present suit was filed on
March 1, 1956 with the result already stated.
In the written statement filed by the original tenant it was
"siated that the original landlord had waived the right of forfeiture
for default upto August. 1955 when he accepted rent for September, 1955 and 'acquiesced" in the continuance of the tenancy by
receiving rent upto January, 1956.
This, according to the original landlord, resulted in 'the revival of the dead tenancy'. The
High Court has held that the old tenancy .continued between the
parties with all its advantages and weaknesses and that the original landlord was, therefore, able to take advantage of the old
defaults and base the notice on them.
In this appeal it is contended that after the landlord accepted
the rent for September a new tenancy came into exist.ence and the
old defaults could not therefore be made the foundation of the
second notice to quit.
This is opposed by the answering respondent, the legal representative of the original landlord.
The matter is governed by the West Bengal Premises Rent
Control (Temporary Provisions) Act, 1950. It came into force
on March 30, 1950. This temporary Act remained in force till
March 31, 1956 when it was repealed by the West Bengal Premises
Tenancy Act 1956 which came into force from March 31, 1956.
However, as the suit had already been filed it continued to be
governed by the repealed Act in view of s. 4 of the new Act which
states :
"that notwithstanding the repeal of the old Act any
proceedings pending on the 3 Ist day of March, I 956
would continue as if the said Act had been in force."
Under the old Act there was a protection to tenants against eviction and that was enacted in s. 12 of the old Act. We are concerned with s. I 2 ( I )( i) and it reads as follows :
"12(1) Notwithstanding anything to the contrary
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in any other Act or law, no order or decree for the
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recovery of possession of any premises shall be made
by any coun in favour of the landlord against a tenant
including a tenant whose lease has expired :
Provided that nothing in the sub-section shall apply
to any suit for decree for such recovery of possession :
( i) Subject to the provisions of section 14, where
the amount of two months' rent legally payable by the
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RANJIT v. MOH!TOSH (Hidayatullah, C.J.)
I 9
tenant and due from him is in arrears by not having
been paid within the time fixed by contract, or in the
absence of such contract by the fifteenth day of the
month next following that for which the rent is payable or by not having been validly deposited in accordance with section 19."
Section 14 which is referred to here provided as follows :
"14 (i) If in a suit for recovery of possession of
any premises from the tenant the landlord would not
get a decree for possession b1,1t for clause (i) of the
proviso to sub-section (1) of section 12, the Court
shall determine the amount of rent legally payable by
the tenant and which is in arrears taking into consideration any order made under sub-section ( 4) and effect
thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of
rent calculated at the rate of nine and three-eighths per
centum per annum from the day when the rents became arrears up to such date, together with the amount
of such cost of the suit as is fairly
allowable to the
plaintiff-landlord and shall make an order on the
tenant for paying the aggregate of the amounts ( specifying in the order such aggregate sum) on or before
a date fixed in the order.
(2) Such date fixed for payment shall
be the
fifteenth day from the date of the order excluding the
day of the order.
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( 3) If within the time fixed in the order under subsection ( 1), 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 of the
premises, shall be
dismissed by the court. In default of such payment the
court shall proceed with the hearing of the suit :
Provided that the tenant shall not be entitled to the
benefit of proteciion against eviciion under this section
if he makes default in payment of the rent referred to
in clause ( i) of the proviso to sub-section ( 1) of section 12 on three occasions within a period of eighteen
months."
The tenant claims the benefit of s. 14 but the landlord relies
upon the proviso to sub-section (3) quoted above.
Further the
tenant also relies upon s. 24 of the repealing Act which is to the
following effect :
"24. When there is no proceeding pending in Court
for the recovery of possession of the premises,
the
20
SUPREME COURT REPORTS
(1970] 1 s.c.R.
acceptance of rent in respect of the period of default
in payment of rent by the landlord from
the tenant
shall operate as a waiver of such default."
Therefore it is contended that the acceptance of rent in respect
of the period of default in payment of rent under s. 12(1) (i) in
September operates as a waiver of the default under s. 24.
Mr. Bhattacharji on behalf of the tenant contends that
the
old tenancy was dead after the notice and on acceptance of rent
a new tenancy came into existence.
The other side contends
that by the acceptance of rent, the old tenancy on the old terms
continued. Each side has cited a number of rulings.
We do not
consider it necessary to refer to th.ese rulings or to discuss the
question.
In Ganga Durr Murarka v. Karlik Chandra Das and
Another(') and in Anand Nivas Private Ltd. v. Ana1ulji Kalyanii's Pedhi and Others(')
(partieuJarly the first at page 1069) it
was held in connection with a statutory tenancy that a landlord
accepting rent does not assent to a new contractual tenancy but
continues the old tenancy.
In the Ca/cu/ta Credit Corpora/ion
Ltd. & Anr. v. Happy Homes (P) Ltd.('), the subject has been
discussed in detail.
Under s. 113 of the Transfer of Propeny
Act a notice is waived, by an act on the part of.the person giving
it showing an intention to treat the lease as subsisting, provided
there is the express or implied consent of the person to whom
it is given. Here the difficulty is solved by the attitude the tenant
took in this case.
His case was that the old tenancy revived and
continued.
According to him, the landlord acquiesced in having
the old tenancy continued. If we go by the tenant's own case it
is obvious that the old tenancy with the default continued and the
landlord was thus able to use the provisions of s. 12(1) (i) against
the tenant as also the proviso to sub-s. (3) of s. 14 of the repealed Act.
There were two consecutive defaults and
in
the
period of 18 months there were more than three defaults. The
benefit of s. 14 sub-s. (I) of the 'repealed Act is not available to
the tenant because of the operntion of the proviso to sub-s. (3).
Further s. 24 of the new Act can hardly assist the tenant. That
section is not retrospective and will operate from the date on
which it came into force.
Mr. Bhattacharji claimed that it may
be taken as a rule of decision or laying down a rule of evidence
but we think it impinges upon the substantive rights of landlord
and tenants which can only be claimed after th.~ commencement
of the Act and not before.
The section puts an embargo on
any claim based on default in payment of rent when the landlord accepts rent after default and therefore it affects the
sub-
>tantive right of the landlords.
Accordin~ to the accepted can-
(!) A. t. R. t961 S. C. 1067
(2) A. I. R. 1965 S. C. 414.
()) (196ij ! S. C. R. 20.
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RANJIT v. MOH!TOSH (Hidayatullah, C.J.)
21
ons of interpretation of statutes, a substantive right cannot be
taken away retrospectively unless the law expressly sC> states or
there is a clear intendment. There are no express words in the
statute making s. 24 retrospective and we fail to see any intendment in it to apply to cases pending on March 31, 1956 when
the new Act came into force, and this suit was then pending. If
it had been merely a matter of procedure or creating a rule of
decision we might have held that the provisions applied to the
suit, but that is not the case here.
As we said the section creates
a change in the substantive rights and therefore must be held to
be prospective in operation and not retrospective unl\)Ss we can
gather retrospectivity from the language of the statute or by clear
implication in it.
There is no question in this case that the tenant was in default according to s. 12 (1 )(i) because he had been paying rents
beyond the period limited by the agreement or by the section.
These defaults were also more than three and therefore the proviso to s. 14 ( 3) deprived the tenant of the benefit of s. 14 ( 1).
On the wliole, therefore, the decision of the High Court was
correct and we see no reason to differ from it.
The appeal therefore fails and is dismissed but in view of the
fact that the rent of the premises has been paid upto the date of
hearing ·and the previous defaults were only so far that the rent
was not paid before the date fixed for payment, we are of opinion
that the parties in this case should be left to bear their own costs
throughout. The tenant is further grant¢ six months' time from
the date of this judgment to vacate the premises. The tenant
further undertakes to deposit the rent as and when it falls due.
V.P .S.
Appeal dismissed.