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Suit No. 386 of 1951, decided on 25th October 1954.
Recovering possession of premises from transferee of tenant who had no right to transfer‑Court fee to be paid under S. 7 (xi) and not under S. 7 (v).
Statutory‑Has no right of assignment of tenancy‑Tenant under notice a statutory tenant.
S. 28 (1) ‑Allotment order passed on 8th September, 1948, by Rent Controller under Sind Rent Restriction Act (X of 1947) being inconsistent with Act of 1953 is not saved by section.
Exercise‑must be without taking into con sideration any reason which is not a legal one.
Syed Sharifuddin for Plaintiffs.
A. S. Farooqi for Defendant.
‑This is a suit for declaration, possession, mesne profits and injunction.
The plaintiffs are owners of the building known as "Ispahani Building" situated on McLeod Road, Karachi. This was evacuee property and the plaintiffs had purchased it from the Hindu owners and the sale deed was confirmed by the Custodian. The plaintiffs had purchased this building for their own personal use and purpose. They are the well known firm which deals in Tea. In August, 1948, a portion of the ground floor of this building consisting of two halls was occupied by one J. Tyler as monthly tenant. On 18th August, 1948, the plaintiff gave a notice to the said J. Tyler terminating his tenancy and calling upon him 'to vacate the premises under his occupation by 30th September, 1948, as the said premises were reasonably and in good faith required by the plaintiffs for their own use. In Sind Observer, dated 25th August, 1948 there appeared a notice under the signature of Mr. Phillips, Bar‑at‑Law relating to the purchase of the business of J. Tyler by the defendant. On the very date, i.e., 25th August, 1948, the plaintiffs through their advocates Messrs. Wali Muhammad Vellani & Co; (now Mr. Justice Vellani of this Court) served a notice on the said Mr. Phillips informing him about the termination of J. Tyler's tenancy and also notified to him that if the defendant entered the said premises he would be treated as a trespasser. On or about 1st October, 1948, the defendant entered into wrongful possession of the premises which were previously in occupation of J. Tyler. Before that, however, the defendant is alleged to have obtained an allotment order from the Rent Controller regarding these vacant premises on 8th September, 1948. The plaintiffs allege that this allotment order was obtained ex parte, without notice to the plaintiffs, wrongfully and illegally and was therefore without jurisdiction, ultra vices, inoperative and void. The plaintiffs further allege that J. Tyler had no right whatsoever to sublet, transfer and/or assign the tenancy to the defendant, who therefore is a trespasser in the eye of law. The plaintiffs without pre judice to their other rights, applied to the Rent Controller in view of the allotment order for ejectment certificate under section 9 of the Sind Rent Restriction Act. By his order dated 17th April, 1950, the Rent Controller granted the requisite ejectment certificate in favour of the plaintiffs. The defendant thereupon went in Revision before the Chief Judge, Small Causes Court, and the learned judge reversed the order of the Rent Controller. The submission of the plaintiffs is that this order of the learned Chief Judge, Small Causes Court, is illegal, without jurisdiction, ultra vires, inoperative and void on the grounds stated in para. 11 of the plaint. The plaintiffs' further submission is that the defendant being a trespasser at all times could not take the benefit of any of the provisions of the Sind Rent Restriction Act. The plaintiffs therefore repeatedly called upon the defendant to vacate the premises but he failed to do so. The plaintiffs claim mesne profits for use and occupation at the rate of Rs. 10 per day. The plaintiffs' further allegation, was that in March and June, 1951, the defendant started unauthorised constructions, additions and alterations of a parmanent nature in the premises in suit for which be had no right. The plaintiffs have therefore filed this suit for declaration that the orders of the Rent Controller allotting the premises and that of the Chief Judge, Small Causes Court, are illegal, ultra vires, without jurisdiction, inoperative and void. They have further prayed that they should be given quiet and vacant possession of the premises and that the‑defendant, his agents and all persons claims through or under him may be ordered to quit the premises. They have further prayed for Rs. 9,890 as mesne profits with 6 percent interest. They have also sought for an injunction to restrain the defendant permanently from putting up any unauthorised construction.
The defendant has denied all the allegations of the plaintiffs. He alleges that the plaintiffs were not entitled to terminate the tenancy of J. Tyler ; he denies that the premises were reasonably and in good faith required by the plaintiffs for their own use ; he submits that the sale of the evacuee property not having been confirmed by the Custodian, the plaintiffs had no authority to give a notice to the defendant or J. Tyler to vacate. He says that in view of the mandatory provisions of section 9 of the Sind Rent Restriction Act the plaintiffs had no authority to terminate the tenancy. The defendant says that the premises were allotted to him by the Rent Controller legally and properly on 8th September, 1948, and that he had purchased the running concern with all its goodwill and heavy fixtures and machinery from J, Tyler. The defendant denies having entered into wrongful possession of the premises. He denies that J. Tyler had no right to sublet, transfer or assign these premises. He further says that the plaintiffs, having applied for an ejectment certificate under section 9 of the Rent Act, accepted the position of the defendant as a tenant and they were, therefore, estopped from questioning the defendant's tenancy now. He further says that the suit was barred by section 9 and 22 of the Rent Restriction Act. He says further that the ejectment certificate granted by the Rent Controller to the plaintiffs was wrong and was rightly set aside by the Small Causes Court. He further says that the plaintiffs are not entitled to mesne profits at Rs. 10 per day as the defendant was and is always willing to pay rent to the plaintiffs and had actually sent them cheques for the purpose which the plaintiffs refused. He denies having made any unauthorised constructions of a permanent nature as alleged by the plaintiffs. He further says that the relief of possession was deliberately undervalued by the plaintiffs and. they had to pay ad valorem Court‑fee on the market value of the property. All the contentions of the plaintiffs ate denied.
On these pleadings the following issues were framed :‑
(1) Is the plaint understamped (Para. 16 W. S.).
(2) Is the defendant a trespasser into the premises in suit
(3) Did the defendant succeed J. Tyler to the tenancy of the premises .
(4) Did J. Tyler have no right to transfer, assign or sublet the premises
(5) Is the allotment order in favour of the defendant illegal, ultra vires and without jurisdiction Can it be questioned in this suit
(6) Is the order of the Chief Judge, Small Causes Court without jurisdiction, ultra vires, illegal and inoperative
(7) Is the suit Barred by section 9 and 22 of the Sind Rent Restriction Act
(8) Is the plaintiff estopped from questioning the tenancy of the defendant (Para. 8 of W. S.).
(9) Is the plaintiff entitled to mesne profits If so, to what amount
(10) Had the defendant put up unlawful, illegal and unauthorised constructions, additions and alterations of a n permanent nature and has it caused serious injury to the plaintiff If so, what is its effect
(11) Is the suit as framed not maintainable (Para. 16 of W. S.).
(12) Is the plaintiff entitled to any of the reliefs claimed by him in para. 19 of the plaint
(13) What decree should be passed in the case.
My findings are :‑
Issue No. 1.‑No.
Issue No. 2.‑Yes.
Issue No. 3.‑No.
Issue No. 4.‑He had no right.
Issue No. 5.‑Yes.
Issue No. 6.‑Yes.
Issue No. 7.‑No.
Issue No. 8.‑No.
Issue No. 9.‑Yes ; Rs. 10 per day.
Issue No. 10.‑Dropped.
Issue No. 11.‑It is maintainable.
Issues Nos. 12 and 13.‑As below.
Issue No. 1.--‑The learned advocate for the defendant' has argued that the plaintiffs have valued their relief for possession under section 7. (11) of the Court‑fees Act, whereas they had to pay advalorem Court‑fee stamps under Article 7 (5) of the same Act. In other words, the plaintiffs should pay Court‑fee on the market value of the property, but this argument is not sound. In A I R (1927) Sind 248, and also in A I R (1932) Sind 73, it has been distinctly held that the plaintiff can value his relief for possession on twelve times the monthly rent if the defendant is in possession of only a part of the premises. Here, in this case, the defendant admittedly is in possession of a portion of the ground floor consisting of two halls only. Therefore the plaintiffs have not to pay Court‑fee stamp on the market value of the entire premises. Finding accordingly in the negative.
Issues Nos. 2, 3 and 4.‑These three issues are inter connected and I will therefore take them together. On 18th August, 1948, the plaintiffs gave notice to the original tenant Mr. J. Tyler, terminating his tenancy. This notice is (Exh. 7) in the case. It clearly says that the plaintiffs required the two halls occupied by J. Tyler for their own use. They told Mr. Tyler that "We shall be obliged if you could please vacate the premises by the 30th of September, at the latest. Kindly treat this letter as one month's notice in advance". After the termination of tenancy Mr. J. Tyler became only a statutory tenant. That was a personal right which could not be assigned by him in any manner. We have got an important ruling reported in A I R (1953) Bom. 200, where Chagla, C. J., held that after the tenancy is terminated by notice, the tenant becomes a statutory tenant, and as such he has no interest in premises which he can in law transfer, assign or sublet. The defen dant in that case was held to be a trespasser. In Halsbury's Laws of England, Second Edition, Volume 20, page 334, para. 401, we have got it that a statutory tenant has no estate or property as tenant but merely a personal right to retain possession of the property. He cannot assign his interest or transmit it by will. In the book on the "Principles of Rent Control" by R. B. Andhyarujina at pages 3, 15 and 18, it has been clearly laid down that this purely personal right must cease the moment the statutory tenant leaves the premises voluntarily. The effect of putting by statutory, tenant, transferees into possession, in pursuance of the transfers, is to determine the statutory tenancy. In 55 B L R 582, it has been held by Chagla, C. J., and Shah, J., that the right of a statutory tenant to continue in possession is a personal right. In (1924) 1 K B 685, it has been held that the right of a statutory tenant is merely a personal right to retain possession of the premises and cannot be assigned to any other person. In the book "Rent Control" by Lloyd and Montgomery, page 100, it has been held that a statutory tenant having no proprietary interest in the premises but only a personal right of occupancy, has nothing to assign and a purported assignment is therefore nugatory and will confer no right on the assignee as against the landlord. In A I R (1930) P C 59, it has been held that a sublease for an unexpired period is not assignment but a sub‑lease only.
Applying this law to the facts of this case it becomes clear that after the tenancy of J. Tyler had been terminated he had no right whatsoever to assign or sublet the premises to anybody else. Therefore naturally the defendant became a trespasser and he did not succeed J. Tyler to the tenancy of the premises. On 18th August, J. Tyler got the notice whereby his tenancy was terminated. On 19th August a sale deed of goodwill for Rs. 10,000 was executed by J. Tyler in favour of two persons, viz., Miss Meher Dubash and the defendant. These two persons separated subsequently. The learned advocate for the defendant has relied on a receipt (Exh. 13) for rent for the month of September, 1948, of Rs. 276‑13‑0 received from J. Tyler by the plaintiffs. There appears nothing wrong in that because the tenancy of J. Tyler was terminated with effect from 30th September and therefore he was liable to pay rent for the month of September. As soon as Mr. Phillips, Bar‑at‑Law, got a notice dated 24th August, published in the Sind Observer dated 25th August regarding the purchase by the defendant from J. Tyler of the running concern, the plaintiffs immediately on that very day sent a notice to Mr. Phillips in which his advocate clearly stated that "Mr. J. Tyler is a month, tenant of our client and has no right whatever under the terms of tenancy to transfer or assign the tenancy or to sublet the premises in his occupation. Our client has already given him notice of termination of the tenancy. Our client requires the premises for his own use and purpose and if your client enters into possession our client will treat him as a trespasser and have him ejected". After this the clearest duty of the defendant was to contact the landlord and get the tenancy rights from him. As it is, he never cared for these notices and with open eyes he entered into illegal possession and for the consequence thereof, he alone is responsible. The defendant has relied on (Exh. 5) which is a receipt issued in favour of Messrs. J. Tyler in July, 1943, by the original proprietor of the building "The Universal Engineering Company". On the back of this receipt are shown the conditions of tenancy and the learned advocate has argued that there is no condition which bars Messrs. J. Tyler from subletting the premises or assigning the tenancy. There is no basis for this argument. In the first place these were the conditions of tenancy between Universal Engineering Company and Messrs. J. Tyler and not between the plaintiffs and Messrs. J. Tyler. Therefore neither Mr. J. Tyler nor the defendant can rely upon it. In the second place it is nowhere shown in those conditions that the tenant could sublet the premises. On the contrary condition No. 6 says that "On leaving the premises the tenants are to deliver the premises over to the landlords or their agent in good condition". Apparently therefore the defendant has no case whatsoever.
The learned advocate for the defendant has then argued that since the goodwill was sold for Rs. 10,000 by Mr. J. Tyler to the defendant and Miss Dubash, the tenancy goes along with the goodwill. I do not think there is any basis in this argument also. Goodwill, etc., always goes under the Partnership Act and not in a case of this kind where it cannot be said that the tenancy was assigned. It was practically the transfer of tenancy rights which Mr. J. Tyler as a statutory tenant after the termination of tenancy, had none whatsoever.
The learned advocate for the defendant has relied on a ruling reported in A I R (1943) Bom. 141, but that has been overruled by a full Bench ruling reported in A I R (1945) Born. 237.
In view of these reasons I hold on issue No. 2 in the affirmative and Issues Nos. 3 and 4 in the negative.
Issue No. 5.--‑With a view to maintain his illegal hold on the premises in suit the defendant manipulated on 8th September, 1948, to secure the allotment order from the Rent Controller. In the first place this allotment order was issued ex parte as the landlord had no notice of it whatsoever. The allotment order is (Exh. 11) in the case and it says that the flat in suit be let out to J. Tyler & Co. The adoption of this name was yet another device on the part of the defendant to perpetrate a fraud on the plaintiffs. The original tenant was "J. Tyler" and when the defendant and Miss Dubash purchased the running concern from J. Tyler, they called it by the name "J. Tyler & Co.". Miss Dubash is a Parsi lady while the defendant is a Muslim. The adoption of J. Tyler's name was therefore made with a view to show that the goodwill along with the tenancy rights had been purchased. The defendant has not proved that the plaintiffs had any notice of this allotment. If they had any notice it is clear that they would have contested it vehemently before the Rent Controller. Apart from this, there is a legal objection against this allotment order. The Sind Rent Restriction Act X of 1947 was passed on 28th March, 1947. It was to remain in force for a period of one year from its commencement, but the Provincial Government was authorised to extend its operation for successive periods of one year at a time by notification in the Official Gazette. In accordance with this power the Provincial Government went on extending the operation of this Act from year to year, but it is now held by this Court that all these extensions subsequent to 28th April, 1948, were ultra vires of the powers of Government, and therefore any action taken under the Act of 1947 as extended after 28th April, 1948, was illegal, ultra vires and without jurisdiction. After this ruling was pronounced by this Court, the Governor‑General was pleased to issue Ordinance No. 1 of 1953, whereby all the provisions of the Act were brought into force again and all action taken or purported to have been taken under the Act of 1947 was validated. This Ordinance was ultimately replaced by the Karachi Rent Restriction Act, 1953, which was published in the Gazette of Pakistan, Extraordinary Issue, dated 17th April, 1953. Now, by this Act, the Sind Rent Restriction Act, 1947, the Sind Rent Restriction (Amendment) Act, 1952 and the Karachi Rent Restriction Ordinance, 1953 were repealed, and it was further laid down by subsection (1) of section 28 that any Order or rule at anytime made or purporting to have been made under any of the said enactments shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been made under the provisions of this Act and shall have effect accordingly. Now it is clear from this, that what was saved by section 28 was any order passed or purporting to have been passed under any of the previous Acts so far they were not inconsistent with the Act of 1953. It is most important in this connection to note that in the Act of 1953 there is no provision whereby the Rent Controller could allot any premises. The allotment of premises was altogether ruled out at the time of passing this Act of 1953. It therefore follows automatically that the allotment order in this suit which was passed on 8th September, 1948, i.e., after 28th April, 1948, was not saved or validated by the Act of 1953. Apparently therefore this allotment order passed on 8th September, 1948, was altogether ultra vires and illegal and was passed by the Rent Controller at a time when he had no jurisdiction to do so. The learned advocate for the defendant has relied on Ordinance I of 1953 and argued that in this Ordinance the power of allotment was there and therefore this order was saved. But this Ordinance was repealed by the Act of 1953 and the effect of repeal is as if the Ordinance never existed on the Statute Book. Therefore the defendant cannot take any protection behind Ordinance No. 1 of 1953.
In view of these reasons I hold on this issue in the affirmative.
Issue No. 6.‑--The learned advocate for the defendant has argued that the Chief Judge, Small Causes Court, had jurisdiction over this matter and therefore he had the juris diction to decide it rightly as well as wrongly, and this Court cannot go into the reasoning of that order. He has also relied on several rulings in this connection and they are A I R (1951) S C 115, A I R (1952) Pat. 254, A I R (1952) Pepsu 119, A I R (1946) Cal. 435 and A I R (1954) Mad. 514.
The learned advocate for the plaintiffs again has relied on several rulings to show that this order was without jurisdiction and ultra vires.
Finding that the defendant was taking protection behind the allotment order (Exh. 11), the plaintiffs applied to the Rent Controller for an ejectment certificate under section 9 of the Act and now section 10 of the Act of 1953. The Additional Rent Controller granted the ejectment certificate to the plaintiffs. The defendant then went in Revision to the Small Causes Court and the learned Chief Judge reversed the order of the Additional Rent Controller. It is this order of the learned Chief Judge of the Small Causes Court which has been attacked vehemently by the learned advocate for the plaintiffs. I am, however, of the opinion that since the allotment order itself was illegal and ultra vires and was issued by the Rent Controller without jurisdiction, subsequent proceedings that followed, including the plaintiffs' application for ejectment certificate under section 9, and the defendant Revision application from that order, became infructuous and therefore should be ignored completely. There can be no two opinions that if the allotment order had not been passed by the Rent Controller, the plaintiff would not have been reduced to the necessity of applying for ejectment certificate under section 9. He could have gone to an ordinary Court of law for ejectment of the defendant who was a trespasser or the could even have prosecuted the defendant criminally. Therefore, apparently the order of the Additional Rent Controller as well as of the Chief t Judge, Small Causes Court in Revision, should be treated as if they do not at all exist. But since the learned advocates have concentrated much on this order, it is necessary for me to quote the important passage from there. The Additional Rent Controller in his order reached the conclusion that the plaintiffs had genuine need of the premises in suit and therefore a clear case for grant of ejectment certificate was made out. The important passages from the learned Chief judge's order are reproduced below :‑
"The order of the learned Rent Controller appealed against makes very interesting reading and has struck me as one in which he was far from being convinced of the case in favour of the respondents. One point at this stage may be referred to and held beyond doubt. It is that the respondent firm are the owners of the building in question by virtue of having obtained certificate from the Custodian confirming its sale with retrospective effect as from 13th December, 1947.
The case of the appellant is that they migrated from East Punjab due to the disturbances after he had lost all they had and in Karachi invested whatever they had redeemed in buying up J. Tyler and his business which at the time consisted of two portions, one of which they later sold to Miss Dubash themselves retaining the premises in dispute but they had no notice of eviction when they bought over the concern, that their machines like ramps, petrol tanks, etc., are permanent fixtures which it would not be possible to remove anywhere else and that they have actually nowhere else to go to for business and therefore for a living . . . .
I agree with the remarks of the learned Rent Controller in his order that this is a case, difficult in its simplicity, and that both sides have a case generally strong or weak as one would wish to take it. There is to my mind substance in the argument that on the strictly legal aspect the respondent company have a strong case in their favour. It is also clear on a perusal of the record that the appellant's hands during the pendency of the matter before the Rent Controller have not been entirely clean nor their conduct aboveboard in the sense that they are proved to have been aware of the notice of eviction when they bought over the premises from J Tyler. On the other hand the Rent Controller concluded and rightly in my opinion that the opponents had failed to establish before him any other ground for ejectment e.g., nuisance caused by the spray and smoke from the workshop of the owners, except their own genuine need of wishing to expand accommodation for their business . . . .
The respondent firm is a vast business organization dealing with commodities of vital concern to Pakistan. Their interests in our country are far flung and are not confined solely to Karachi. On the other hand there is nothing to show that the appellants have any other means of livelihood except their automobile business on McLeod Road housed in the building owned by the respondent. Purely from a humanitarian point of view ejecting the appellants from these premises would be literally driving them on the streets, and although the continuance of the appellants' concern in their building would inconvenience respondents firm to some extent, they cannot be said to be in any way vitally affected in their vast business by the continuance of the appellants' business in these premises, comprising of two halls on the ground floor.
Ejectment of the appellants would therefore operate very harshly against the appellants. It is the policy of the Government as far as possible to help to rehabilitate M all who have migrated to Pakistan from other Dominion where they have lost all they had there. This is the case of the appellants. Their ejectment would definitely result in one more substantial case on the hands of the authorities who would in justice have to be resettled in some business or the other.
In my opinion therefore no case has been made out on behalf of the respondents for a genuine and/or pressing need of the premises occupied by the appellants and therefore no cause for a grant of a certificate for ejectment against the appellants."
Having come to this conclusion, the learned Chief Judge of the Small Causes Court rounded up his order in the following manner:
"In justice to the respondent firm I order that if the appellants invest in any other business or it can be proved that they have substantial interest with a reasonable return in a business other than the one on McLeod Road running in the name of J. Tyler & Co., or if in the future appellants sell or transfer the business to anyone else, respondents should be entitled to the immediate possession of these premises, and ejectment of anyone person or firm taking over from the appellants personally or as a firm.
The order of the Rent Controller is therefore reversed and the Revision application allowed".
Whatever may be said about this order, frankly I must confess that this order of the learned Chief judge is the most novel one I have yet seen. No evidence in the case has been discussed, not even a bare reference to any witness, who has been examined, has been made, and the matter has been decided entirely on humanitarian considerations in spite of the fact that according to the learned judge himself the respondents, i.e., the plaintiffs in this case, had an excellent case on a strictly legal aspect. I must also express my inability to understand the meaning of the phrase "this is a case, difficult in its simplicity". If the case was a simple one there should have been no difficulty for the learned judge to dispose of it immediately. A Judge has to decide a case according to law regardless of the consequences which his decision might entail. The learned Judge has admitted that the hands of the defendants had not been entirely clean and that their conduct had not been above board. He admits that they knew of the notice of eviction served on J. Tyler and yet they purchased this running concern with open eyes, Clearly, therefore, the defendant was a trespasser in the eye of law and should have been treated as such by the learned judge. It is for the Government to consider the humanitarian points of view and not the Court of Law. Discretion has always to be exercised in a judicial manner, and not in an arbitrary manner as has been done in this case. Let us take the case of a. young man who is the only son of his aged parents and the only bread‑winner of the family. Suppose he commits a brutal and savage murder and the prosecution prove the case against him. Will a Judge then be entitled to say, for instance, that "On the strictly legal aspect the accused is guilty of a very brutal murder but because he is the only bread‑winner of the family and the only child of his aged parents, if I convict him the entire family will be ruined and will be thrown on the street, I will therefore let him go". In Maxwell on the Interpolation of Statutes, the following passage occurs on page 123 under the Chapter "Discretion":‑
"Where, as in a multitude of acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statue. According to his discretion' means, it has been said, according to the rules of reason and justice, not private opinion, according to law and not humour ; it is to be, not arbitrary, vague and fanciful but legal and regular, to be exercised, not capriciously, but on judicial ground and for substantial reasons . . . . .
And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that is, within the limits and for the objects intended by the legislature. These dicta may be summed up on the statement of Lord Esher that the discretion must be exercised without taking into account any reason which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eyes of the law they have not exercised their discretion. Moreover, if a public authority bases its exercise of discretion on a misinterpretation of the statute which it purports to administer, the Court has jurisdiction to interfere."
Similar remarks occur in the book "Justice and Adminis trative Law" by William A. Robson at page 400. It is further said there :‑
"The idea of a discretion which is to be exercised, not in a capricious and impetuous way, but in a disciplined and resposible manner, is a conception which has had a wide application in English Law and politics."
In Susannah Sharp v. Wakefield and others ((1891) App. Cas.173 p. 179) the follow ing passage occurs :‑
"An extensive power is confided to the justices in their capacity as justices to be exercised judicially ; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion ; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. Where justices thought proper not to enforce the law because they considered that the Act in question was unjust in principle, the Court of Queens Bench compelled them by a peremptory order to do the act which nevertheless the statute had 'said was in their discretion ‑to do or leave undone."
In 54 C. W. N. 20 at pages 25 and 26, we have the following important observation :‑
"Mr. Sen has argued that the defendant is a Lawyer Magistrate who has been in Government service and still is, and whose family members reside in his house. The defendant is a Sub‑Divisional Relief and Rehabilitation Officer of the Government of West Bengal. At present he says he is at Siliguri and he will remain there until October, of this year. He has his wife and two children, one is aged 9 years and the other is 13 years, who live at 26‑C, Amherst Row, Calcutta, and. from where they attend Scottish Churches Collegiate School. In 1943, he he was practising in the Bankshall Police Court as a pleader and was‑ residing. at 26‑C, Amherst Row. He joined Government service in 1945, In January, 1945, he was posted at Barisal for 2 years and 8 months and he left his family to live in that house in Calcutta. Then from Barisal he was posted to Contai for 6 months. Mr. Dutt has on these facts argued that the tenant really does not need the house. On the same facts Mr. Sen argues that it will be a very great hardship on the defendant if he is to leave the house. In my view both such arguments are misconceived. The test that is to be satisfied and considered under the Statute is whether the landlord bona fide requires the house for his own occupation and not whether the tenant needs the house or that a decree for ejectment will cause hardship to the tenant. Proviso (f) of section 11 (1) of the Act engrafts an exception where a decree for recovery of possession can still be made in favour of the landlord who bona fide requires the premises for his own occupation. The statute thereby recognises a wholesome principle that a man should not be deprived of his own house if he bona fide requires it for his own occupation. Under the common law or the Transfer of Property Act the landlord has considerable rights to evict a tenant from his property. A good many of these rights have been taken away by the Act in order to meet the prevailing and acute shortage of housing accommodation for the citizens of this province. A Statute like the West Bengal Premises (Temporary Provisions) Rent Control Act, 1948, is designed t0 meet the fugitive exigencies of the hour and in doing so the Legislature in its wisdom has still left the landlord with that remnant of his right, which is an incident of ownership, to be able to evict a tenant, when he bona fide requires his property for his own occupation. This Court will be loath to confiscate that valuable right of the landlord without express statutory provision".
It, would, therefore, clearly appear that the order of the learned Chief Judge, Small Causes Court, was an order without jurisdiction and was inoperative. The final order providing for the ejectment of anybody hereafter purchasing the business from the defendant, without that person oven being before the Court, was, to say the least arbitrary and ill‑considered. No order can be passed against a person who has not yet been before the Court. The learned advocate for the defendant argues that right or wrong this order could not be questioned. I do not think so. In K. G. Pandit v. Narsinghdas Sitaram (A I R (1951) Nag. 207) it has been held that if the Rent Controller (and in this case the Chief Judge of the Small Causes Court) refuses to exercise jurisdic tion in granting the permission the landlord would be able to dispense with that permission in a Civil Court by establishing facts which entitle him to the permission. Finding accordingly in the affirmative.
Issue No. 7.‑--The same arguments apply to this issue, and when the allotment order of the Rent Controller itself has been held to be illegal and without jurisdiction, it is apparent that the suit cannot be barred. Finding accordingly in the negative.
Issue No. 8.‑--The learned advocate for the defendant has argued that since the plaintiffs made an application under section 9 for ejectment certificate, they accepted the tenancy of the defendant and were therefore estopped from questioning the defendant's tenancy. I do not agree with this view. The plaintiffs have never admitted at any time that the defendant was a tenant. The plaintiffs were reduced to the necessity of making an application under section 9 for an ejectment certificate, because the Rent Controller had passed an allotment order, however illegal it was. The doctrine of estoppel can never apply in a case of this kind. Finding accordingly in the negative.
Issue No. 9.‑The plaintiffs have claimed Rs. 10 per day as mesne profits which comes to Rs. 300 per month. The rent of the premises which was being paid by J. Tyler himself was Rs. 276‑13‑0. The plaintiffs claim only Rs. 23-3‑0 more and that, according to me, is not unreasonable in view of the fact that the defendant has illegally persisted in remaining in occupation of the premises. Finding in the affirmative.
Issue No. 10.‑--By consent of parties this issue has been dropped.
Issue No. 11.‑--Para. 16 of the written statement says that the plaintiff cannot be allowed to treat the defendant as a trespasser and also seek a declaration that the order of the Chief Judge, Small Causes Court, refusing ejectment certificate is illegal and ultra vires. The plaintiff must elect to treat the defendant either as a tenant or a trespasser. I do not think there is any force in this argument. Alter native pleas are always allowed in civil cases. In this connection see the Commentary in Mulla's C. P. C., on page 611, 12th Edition. Finding accordingly in the negative.
Issues No. 12 and 13.‑--In view of all these reasons I decree the plaintiffs' suit for declaration and injunction as prayed for, for possession and for Rs. 9,890 as mesne profits with interest at 6 per cent. per annum from the date of suit till payment. I also direct the defendant to bear, the casts of the plaintiff in this suit.
A. H. Suit decreed.
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