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Second Appeal No. 2 of 1961; decided on 27th July 196].

[as adapted in Pakistan], Ss. 4 & S‑Purchase of property situate in Pakistan Consideration money paid in India in Indian currency from income of ancestral properties in India‑Sections not applicable.

Benimadhab Pal v. Sachinandan Roy P L D 1958 Dacca 494 distinguished.

S. 100‑Plea not taken in lower Courts‑Cannot be entertained in second appeal.

Hazrat Ali Mia and others v. Asaraddin Bepari and others P L D 1960 Dacca 651 ref.

Asrarul Hossain and Md. Nurul Huq for Appellant.

Enayetur Rahman for Respondent.

This appeal at the instance of defendant No. 2 is directed against the decision of the Subordinate Judge, First Court, Dacca, affirming that of Munsif First Court, Dacca, in a suit for possession on eviction of a monthly tenant from the disputed premises, defendant No.1 was a monthly tenant with regard to the suit premises at the rent of Rs. 125. After purchase of the premises from the admitted owners on 15‑11‑1957, plaintiff obtained permission of the House Rent Controller, Dacca, to sue Defendant No. 1 for eviction on the grounds that defendant No. 1 was a defaulter in payment of rent and that the premises were bona fide required by the plaintiff for her own use and occupation. The suit for eviction was instituted after due service of notice under section 106 of the Transfer of Property Act. Defendants 2 and 3 are sub‑tenants. Plaintiff's case is that they were inducted in this disputed premises by defendant No. 1 without authority from the former landlord.

2. Defendant No. 2 only contested the suit. Defence is that defendant No. 2 has acquired the status of a tenant as the interest of defendant No. 1 in the premises was determined, and as permission of the House Rent Controller was not taken for evicting him and notice under section 106 of the Transfer of Property Act was not served on him. It was further alleged that the plaintiff' acquired no valid title in the disputed premises as consideration for the kabala was paid in Calcutta without obtaining the permission of the State Bank and as such the kabala was void.

3. The learned Munsif held that plaintiff acquired title in the suit premises by purchase from the heirs of the original owner Jananada Kamini Ghosh, there was due service of notice under section 106 of the Transfer of Property Act on defendant No. 1, that defendant No. 1 was defaulter in payment of rent, and that plaintiff required the premises for her bona fide use. It was also held by the Trial Court that defendant No. 2 did not acquire any tenancy right in the disputed premises. Accordingly the suit was decreed.

4. On appeal the learned Subordinate Judge held that the East Bengal Premises Rent Control Act, 1953 would apply to this case, that the appellant did not acquire the status of a tenant, permission from the House Rent Controller for ejecting defendant No. 2 was not necessary, he was not entitled to a notice under section 106 of the Transfer of Property Act, and that the kabala of plaintiff was a valid one. Accordingly the appeal was dismissed and the decision of the learned Munsif was armed. Hence this appeal at the instance of defendant No. 2.

5. Mr. Asrarul Hossain, the learned counsel for the appellant has advanced the following points in support of the appeal: (I) The lower Appellate Court erred in law in holding that the East Bengal Premises Rent Control Act, 1953, and not the East Bengal Premises Rent Control Ordinance, 1951, would apply to this case, although defendant No. 2 was inducted in the premises as a sub‑tenant in 1952, (2) as appellant acquired status of a tenant after the determination of the interest of defendant No. 1 in the premises, he was entitled to a notice under section 106 of the Transfer of Property Act. (3) In view of the provisions of sections 4 and 5 of the Foreign Exchange Regulation Act, 1947 (Act VII of 1947), plaintiff has not acquired any title in the disputed premises as consideration money for the kabala was paid in Calcutta without the permission of the State Bank. (4) The Courts below erred in law in holding that there was default in payment of rent as appellant paid rent to the Evacuee Property Management Committee. (5) The lower Appellate Court erred in law as the question of bona fide requirement of the premises for the use and occupation of the plaintiff was not considered, and reliance was placed merely on the order given by the House Rent Controller.

6. The learned counsel for appellant has contended that as defendant No. 2 has been a sub‑tenant from 1952, the East Bengal Premises Rent Control Ordinance, 1951 will apply to this case, and that under subsection (3) of section 14 of the Ordinance, he is to be deemed to be a tenant on the determination of the interest of defendant No. 1 in the premises. Mr. Rahman, the learned Advocate for respondent has contended in reply that there was not a scrap of paper to show that defendant No. 2 was inducted in the premises as a sub‑tenant in 1952. It was further contended by him that even if it be held that the East Bengal Premises Rent Control Ordinance, 1951 would apply to this case, that would not protect defendant No. 2, as the premises are bona fide required by the plaintiff for her own use and occupation as mentioned in clause (e) of the proviso to subsection (1) of section 14 of the East Bengal Premises Rent Control Ordinance, 1951.

7. The plea that defendant No. 2 was inducted in the premises as a sub‑tenant in 1952 was not taken in the written statement. The objection was taken only in the appellate Court below. Reference was not made to any paper to show that defendant No. 2 was inducted in the premises as a sub‑tenant in 1952. In the circumstances the plea that defendant No. 2 has been a sub‑tenant from the 1952 cannot be accepted. The East Bengal Premises Rent Control Act, 1953 will apply to this case. The building in question was not let out to defendant No. 2 with the consent of the landlord. The lower appellate Court was justified in holding that defendant No. 2 did not acquire the status of a tenant.

8. As defendant No. 2 is not a tenant, he is not entitled to a notice under section 106 of the Transfer of Property Act. The fact that there was due service of notice under section 106 of the Transfer of Property Act on defendant No. 1 has not been challenged.

9. It has been contended by the learned counsel for the appellant that the plaintiff has not acquired any valid title in the premises as consideration money for the kubala was paid in Calcutta without the permission of the State Bank. In support of this contention reference has been made to sections 4(l) and 5 of the Foreign Exchange Regulation Act, 1947 as adapted in Pakistan. Section 4(1) of the Foreign Exchange Regulation Act, 1947 will not apply to this case as this is not a case of buying or borrowing, selling or lending, or exchanging, any foreign exchange.

10. Section 5 of the Foreign Exchange Regulation Act, 1947, also will not apply as the kabala shows that the consideration money was paid in Calcutta in Indian currency from the income of the ancestral properties of plaintiff in Burdawan District. No Pakistan currency was involved in the transaction.

11. The learned counsel for appellant has referred to section 23 of the Contract Act and has contended that the contract cannot be enforced as payment of consideration in Calcutta, was unlawful. This contention cannot be accepted, as the payment in Indian currency out of the money obtained by plaintiff from her ancestral properties was not in violation of the provisions of sections 4 and 5 of the Foreign Exchange Regulation Act, 1947.

12. The learned counsel for the appellant has cited the case of Benimadhab Pal v. Sachinandan Roy (P L D 1958 Dacca 494), in support of the contention that the payment was in violation of the provisions of sections 4 and 5 of the Foreign Exchange Regulation Act, 1947. In that case, plaintiff lent Rs. 3,000 in Indian currency to defendant No. 1 in Calcutta on condition that it would be paid back or exchanged for an equivalent sum in Pakistan currency at Galachipa in the District of Barisal. It was held that the transaction in question was contrary to the provisions of sections 4 and 5 of the Foreign Exchange Regulation Act, 1947 and that it could not be enforced by a Court of law in Pakistan. But the facts of the present case are distinguishable as there was no contract for repayment of any money in Pakistan.

13. The learned Advocate for respondent has contended that the objection that the kabala was void, because consideration Was paid outside Pakistan, was not taken in the trial Court, and that had this objection been taken in the written statement and in the trial Court, plaintiff would have adduced evidence to show that the State Bank also did not object to the transaction. It has been contended that as this plea was not taken in the trial Court, it cannot be entertained. In support of this contention reference has been made to the case of Hazrat Ali Mia and others v. Asaraddin Bepari and others (P L D 1960 Dacca 651). In that case, the locus stand of a co‑applicant to pre‑empt the sale in a case under section 26‑F of the Bengal Tenancy Act was challenged for the first time in the Court of appeal below. It was held that the co‑applicant had the locus stand to pre‑empt the sale and that this view was also supported by the fact that the objection regarding locus standi of the co‑applicant was not taken in the Court of first instance. In the facts of the present also the view that the kabala is not void is supported by the fact that no such objection was taken in the written statement or at the time of trial.

14. It transpires that permission was not taken from the Government for registration of kabala. The learned counsel for appellant has contended that permission from Government would not amount to permission from the State Bank. The plea that permission of the State Bank was not taken should have been raised in the trial Court. In the circumstances, the contention E that plaintiff has not acquired any title on the basis of the kabalo cannot be accepted.

15. The premises were placed under the management of the Evacuee Property Management Committee in April 1958. Plaintiff's purchase took place on 15‑11‑57. For the fact that defendant No. 2 paid rent, if any, to the Committee from April 1958, it cannot be held that there was no default in payment of rent as the Evacuee Management Committee had no right to receive rent for the premises after plaintiff's purchase. The fact that defendant No. 1 made default in payment of rent has not been challenged.

16. The contention that the appellate Court below relied merely on the order of the House Rent Controller in holding that the premises were bona fide required by the plaintiff for her own use and occupation has no substance. The lower appellate Court has discussed the evidence on this point as will appear from the following observation :‑

"It has been contended that the learned Munsif's finding that the plaintiff requires the house is not supported by the evidence. But it appears from P. W. 1 that the plaintiff requires the house for her own use. In cross‑examinations be also stated that she has no other house. There is no evidence to show that the plaintiff does not require the house and she has got other houses. In view of this it cannot be said that there is evidence to hold that the plaintiff requires the house for her own use and occupation."

It will thus appear that the lower appellate Court has looked in the evidence and has come to its own finding about the bona fide requirement of the house by the plaintiff for her own use and occupation.

17. There is no ground for interference with the decision of the learned Subordinate Judge.

18. In the result the appeal is dismissed with costs. The judgment and decree passed by the learned Subordinate Judge are armed.

19. Leave under Clause 15 of the Letters Patent as prayed for by Mr. Md. Nurul Huq is granted.

20. Civil Rule No. 1565(s) of 1960 is discharged without costs.

K. B. A.

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