9911796707
TMI Blog1951 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The tenant held the rooms as a monthly tenant at a rent of ₹ 34/- per month. In the plaint the plaintiff alleged that the defendant had made default in payment of rent from July 1946 to December 1947 and that on or about November 28, 1946, he filed a suit (being suit No. 4309 of 1946) in the Court of Small Causes, Calcutta, against the tenant for recovery of arrears of rent from July to October, 1946 : the defendant deposited ₹ 136/- in that Court and satisfied the plaintiff's claim in that suit and he also had deposited ₹ 204/- on different dates in the office of the Rent Controller on account of rent from November 1946 to April 1947: that at the date of the institution of the suit there was due by the tenant to the plaintiff on account of rent ₹ 272/- (May 1947 to December 1947). He further alleged in the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. allowed the application and granted relief under that section. From the order of Bachawat J., this appeal has been taken. 6. Two points have been argued before us by learned counsel on behalf of the appellant; first, that the decree was not made on the ground of default in payment of arrears of rent under the provisions of the Act of 1948, and therefore the tenant was not entitled to claim relief under Section 18 (1): secondly, that by the West Bengal Premises Rent Control (Temporary Provisions) (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to eject the tenant after giving him notice to quit. In this case the landlord had duly given that notice to quit and the tenancy was determined. But by the Rent Act it was provided that no order or decree for possession should be made against a tenant who had not made default in payment of rent. That was the state of law before the Act of 1948 came into force. When the Act of 1948 came into force it conferred further benefits on the tenant by saying that even if the tenant was in arrears at the date of the commencement of the Act, he would be protected if within a month from the date the Act came into force, the tenant paid all arrears together with interest and costs as provided in Section 12 (1) (b). In other words, a tenant was given protection from eviction on certain conditions and those conditions were (1) payment of all arrears, (2) payment of interest, and (3) payment of costs such as the Court might award. There fore if the tenant pays only the arrears of rent and not interest & costs, and the decree is passed, it is not passed against the tenant by reason of the fact that he made default in payment of arrears of rent, but on the ground that the tenant is not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amended Act have no application to the present case, because the application which 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 res judicata again becomes res sub judice, that is, a matter under judicial inquiry. The appeal destroys the finality of the decision, the decree of the lower Court is superseded by the decree of the appellate Court. In other words, once an appeal is filed from a decree or order in a matter, it becomes a pending matter. In this case when the appeal was preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
