Case: Ranjit Chandra Chowdhury Vs. Mohitosh Mukherjee

rate of nine and three-eights 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.(3) If within the time fixed in the order under sub-section (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 protection against eviction 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."* * * * * * *7. The tenant claims the benefit of Section 14 but the landlord relies upon the proviso to sub-section (3) quoted above. Further the tenant also relies upon Section 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 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 Section 12 (1) (i) in September operates as a waiver of the default under Section 24.8. 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 as cited a number of rulings. We do not consider it necessary to refer to these rulings or to discuss the question. In Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 and in Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi, AIR 1965 SC 414 (particularly 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 Calcutta Credit Corporation Ltd. v. Happy Homes (P) Ltd., 1968-2 SCR 20 = (AIR 1968 SC 471 ) the subject has been discussed in detail. Under Section l13 of the Transfer of Property 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 sloved 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 tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 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 Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 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 the 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 substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so 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 unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 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 Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Under Section l13 of the Transfer of Property 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 sloved 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 tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 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 Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 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 intosection 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 substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so 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 unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 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 Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it.