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Appeal from Appellate Decree No. 284 of 1961, decided on 31st May 1966.
---Mere acceptance of house rent sent by money‑order‑Does not operate as waiver of prior notice to quit Interpretation of statutes‑Provisions of special Act prevail upon provisions of general Act‑Transfer of Property Act (IV of 1882), S. 106.
Manicklal Dey Chaudhuri v. Kadambini Dassi 43 Cr. L J 272 distinguished.
M. A. Aleem for Appellant.
D. C. Bhattacharjee for Respondent.
This appeal is by the defendant and it arises out of a suit in which the plaintiffs sued the defendant for eviction from a premises which was leased out to the defendant. Plaintiffs allege that the defendant was a habitual defaulter and, furthermore, that they (the plaintiffs) required the premises for their bona fide use and occupation. A permission was obtained from the Rent Controller to sue the defendant.
The defence was that the defendant was not a habitual defaulter and that the plaintiffs themselves raised controversies with regard to the rate of rent to be paid in respect of the premises. Furthermore, the defendant also denied that the plaintiffs required the premises for their own use and occupation. Before the learned Munsif, who tried the suit, the following issues were framed:
"(1) Is the suit bad for want of notice
(2) Is the suit bad for want of sanction of the Rent Controller
(3) Is the defendant a habitual defaulter as claimed by the plaintiffs
(4) Have the plaintiffs genuine necessity of the disputed house
(5) Are the plaintiffs entitled to a decree as claimed "
Learned Munsif found all the issues, except issue No. 2, against the plaintiffs and dismissed the suit.
Plaintiffs thereupon preferred an appeal, which was heard and disposed of by a Subordinate Judge of Mymensingh. Learned Subordinate Judge framed the following points for decision
"(a) Whether there has been due service of notice under section 106 of the T. P. Act upon the defendant
(b) Is the defendant a habitual defaulter
(c) Whether the plaintiffs require the premises in suit for their personal use "
On a discussion of the evidence in the case, he came to the conclusion that notice under section 106 of the Transfer of Property Act was duly served upon the defendant. He has rightly held that the fact that the plaintiffs accepted a money‑order sent by the defendant as house rent does not operate as a waiver of the previous notice served by the plaintiffs upon the defendant. He has relied on the provisions of section 22 of the East Bengal Premises Rent Control Act, 1953 (hereinafter called the Act), which reads thus:
"When a landlord accepts rent in respect of any premises sent by postal money order by a tenant under subsection (5) of section 17 or by the Controller under subsection (4) of section 21 or withdraws any rent deposited under section 21; the fact of this acceptance or withdrawal shall not be used in any way as evidence that he has admitted as correct any of the particulars set forth in the postal money order form or in the application for deposit of such rent or that he has waived any notice to quit given by him to the tenant."
(The underlining* has been done by me).
The next question was, whether the defendant was a habitual defaulter. From the records it transpires that there were several rent suit s instituted by the plaintiffs to recover rent from the defendant. It further transpires that the defendant had obtained lease of the premises prior to 1944: There have been several suits for recovery of arrears of rent and in that view of the matter, the learned Subordinate Judge has observed
*Here in italics
"But for sending in a Money Order the aforesaid house rent for three months, the defendant did not pay house‑rent at any time during his many years' stay in tire premises in suit until there was obtained a decree against him."
Having regard to the aforesaid circumstances, he has held that the defendant was a habitual defaulter and that the plaintiffs were entitled to have the suit decreed on that ground. Learned Subordinate Judge, however, proceeded to consider the other point, namely, whether the plaintiffs had established their bona fide requirement of the suit premises. On an appraisal of the evidence he has come .to a finding that there is nothing to disbelieve the plaintiffs when they say that they require the premises for their own bona fide use and occupation. Learned Subordinate Judge, therefore, allowed the appeal and set aside the judgment and decree passed by the trial Court. He decreed the suit and directed the defendant to vacate the premises within thirty days from the date of the passing of the appellate judgment, failing which, it was further ordered that the plaintiffs would get vacant possession of the premises in execution proceedings. Hence this appeal.
During the hearing of this appeal, I was taken through the judgments pronounced by the Courts below.
I have already discussed above the points, which have been repeated before me on behalf of the appellant.
It is patent that the Appellate Court below has rightly decided all the points that were mooted and urged by the appellant in that Court and reiterated before me.
I would like to observe that the provisions of section 22 of the Act are special provisions in a special enactment. Such provisions would prevail upon the general provisions of the Transfer of Property Act. Learned Advocate for the appellant has argued that since it has been found by, the 'trial Court that the acceptance of the house‑rent sent by money order, by the plaintiffs, amounts to waiver of the notice that was served on the defendant, the present suit could not be decreed in favour of the plaintiffs. He has relied upon a decision of the Calcutta High Court in the case of Manicklal Dey Chaudhuri v. Kadambini Dassi (43 C L J 272). It appears that in that case there is no discussion of provisions similar to those provided by section 22 of the Act. Therefore, the decision in that ease will not be. applicable to a case like this. The specific provisions of an Act must prevail over a general enactment, namely, the general provisions of the Transfer of Property Act.
The appellant has, therefore, failed in all the points, which were pressed before me. I need not repeat the reasons, which have been fully set out above.
In the result, this appeal is dismissed without any order as to costs.
S. A. H./S. Q.
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