1. The respondent is the owner of a demarcated portion ofpremises No. 41, Lyall Street, in the town of Dacca. He let out the saidportion to the appellant as a monthly tenant at a monthly rent of Rs. 28 someeight or nine years back. Rent was payable according to the Bengalee months.Towards the end of vadra 1350 B. S. he served a notice to quit requiring theappellant to vacate the demised premises on the expiry of the month of Aswinfollowing. As the appellant did not comply be instituted a suit in the SecondCourt of the Munsif at Dacca in January 1944, (Title Suit No. 19 of 1944) forejectment and for arrears of rent up to Aswin 1350 and thereafter for mesneprofits. On 13th March 1944, he got an ex parte decree in accordance with theprayers made in his plaint. At the time of the institution of the suit and atthe time when the said decree was passed the Bengal House Rent Control Order of1942 (hereafter called the Ordinance) was in force in Dacca, but without Paras.10, 10A, 10B and 10C, which paragraphs were introduced by an amendment dated3rd July 1944, with effect from 6th July 1944. There was, therefore, no fetteron the landlords right to eject a monthly tenant on notice to quit at the timewhen the said ejectment suit was filed, as also at the time when the decreetherein was passed. After 6th July 1944, the position became entirely differentby reason of the introduction of Para. 10.

2. On 13th July 1944, the respondent filed in the SecondMunsifs Court Dacca, the Court which had passed the decree, an application forexecution. On the same date that Court as an executing Court passed an orderdirecting the writ for delivery of possession under O. 21, R. 35 (1), Civil P.C., to be made over to the nazir, with a further direction to the latter toexecute the writ. It appears that the nazir could not deliver possession interms of the writ as he found the outer door of the premises locked up. On afurther application by the respondent that Court on 21st July 1944, gave thenazir the authority to break open the lock. In pursuance of the writ, the nazirgave the respondent possession on 30th July 1944, by removing the appellant.When the nazir had gone to the premises to deliver possession the appellantasked the Court to stay its hands but to no effect. On 8th August 1944, he madean application to that Court under Paras. 10A and 10C of the Ordinance, whichhad come into force on 6th July 1944. In that application he alleged that theorders for delivery of possession dated 13th and 21st July 1944, passed in theproceedings for the execution of the ejectment decree were illegal in view ofthe provisions of Paras. 10A and 10C of the Ordinance. He prayed for settingaside those orders and for restoration of possession. On 19th August 1944, hepaid to the respondent Rs. 187-8-0 which would cover rent up to the end ofAssar 1351 B. S. at the rate of Rs. 28 which he was paying all along accordingto the contract of tenancy. This sum was accepted by the respondent. Thelearned Munsif and the learned Subordinate Judge on appeal have set aside thosetwo orders passed in execution. On second appeal our learned brother, HendersonJ., has reversed both the Courts below and has dismissed the application. Thisappeal has been filed under Cl. 15, Letters Patent. We will now state thereasons given by the Courts below and by our learned brother and consider thesoundness thereof.

3. Both the Courts below held that the application so far asit was under Para. 10A of the Ordinance could not lie, because sub-para. (1)thereof relates to intended or pending suits and proceedings for ejectment andsub-para. (2) relates to cases where the decree or orders for recovery ofpossession had already been made but possession had not been recovered from thetenant. They held that the applicant could, therefore, apply only under Para.10C, because possession had already been taken by the landlord by executing thedecree. They further held that the orders of the executing Court by whichpossession had been given to the landlord were bad orders as no permission ofthe Controller of Rent allowing execution had been obtained by the respondent.The ejectment suit was taken to be one under proviso (c) of Para. 10 (1), theplaint of the suit having been construed to be one for recovery of possessionon the ground that the landlord required the premises for his own use. Thesubstance of the decision of those Courts was that though as a matter of formor procedure relief could be asked by the appellant on an application made notunder Para. 10A but under Para. 10C, he was entitled to relief on the groundthat the executing Court had not complied with sub-para. (2) of Para. 10A, whenissuing the writ for possession. Their decisions assumed that the words"order for recovery of possession" occurring in Para. 10C included anorder made by the executing Court directing delivery of possession in pursuanceof a decree for delivery of possession. Our learned brother took a differentview of the plaint. He held that the cause of action was based wholly on thenotice to quit. We agree with him on this point. No doubt in para. 3 of hisplaint, the respondent made the statement that he required the premises for hisown use but that statement was made, as the paragraph itself shows, forexplaining why he ultimately served the notice to quit. The main reason onwhich the Munsif and the Subordinate Judge rested their decisions thereforedisappears. Our learned brother further held that the phrase "order forrecovery of possession" occurring in Para. 10C meant an order forpossession made by the executing Court. We do not agree with him for thereasons to be stated hereafter.

4. Our learned brother also held that the appellant couldinvoke the protection of the Ordinance only by paying to the respondent thearrears of rent not at the rate he was to pay under contract but 20 per centmore, that is at the rate of Rs. 28 plus Rs. 5-9-7 and as the payment made bythe appellant on 19th August 1944 was at the rate of Rs. 28 only he was notentitled to invoke the provision of the Ordinance for resisting ejectment. He heldthat was the effect of the phrase "to the full extent allowable under theorder" occurring in sub-paras. (1) and (4) of Para. 10 of the Ordinance.Mr. Gupta appearing for the respondent admits that he cannot support this viewof our learned brother. We do not wish to rest our judgment on the concessionof Mr. Gupta but would give our decision as the point is of general importance.Confining ourselves to the case where, as in the case before us, a house hadbeen in occupation of a tenant on 1st December 1941, the said date being theprescribed date, the Ordinance provides that the landlord cannot charge rent ata rate higher than 20 per cent of the rent that was being paid by the tenant on1st December 1941 (Para. 3).

5. Under the general law, a landlord can enhance house rentonly if the tenant agrees to his higher demand, there being no provision as inthe Bengal Tenancy Act by which he can enhance rent by suit; and under thegeneral law the rent could be enhanced to any amount by agreement. The Ordinancehas made a change in two respects. It has left the right of the landlord toeffect enhancement on the basis of contract with the tenant, but has controlledthat right by fixing the maximum. The increase is not to be by an amount whichis more than 20 per cent of what was being paid on 1st December 1941. It hasfurther given the landlord a new right, namely the right to get enhancementagainst the will of the tenant by having recourse to the Rent Controller. Herealso there is a limit to enhancement-the same limit of 20 per cent In ourjudgment the phrase "to the full extent allowable by the order" usedin sub-paras. (1) and (4) of Para. 10 of the Ordinance means that the tenant isto pay only the rent which was being paid on 1st December 1941, plus twenty percent and not more, in the case where under a contract between him and thelandlord entered into after 1st December 1941, he had agreed to pay rent at arate which exceeds twenty per cent of the rent which was being paid on 1stDecember 1941. Under Para. 10 he is not required to pay the excess over thesaid twenty per cent in order to get the statutory protection from eviction.The effect is that the tenant must pay the rent settled by the Rent Controlleror, the rent which he was to pay according to contract as the case may be, butin the last mentioned case subject to the qualification that where by acontract entered into after 1st December 1941, he had undertaken to pay at arate which is higher than twenty per cent over the rent that was being paid on1st December 1941, he need not pay what is in excess of the said twenty percent in order to get the benefit of the Ordinance. As in the case before usthere was no contract after 1st December 1941, by which rent had been enhancednor an order of the Rent Controller by which rent had been settled, in order toget the statutory protection from eviction the appellant had only to pay at therate which he was paying just before the notice to quit, namely, Rs. 28 amonth.

6. The word "order" in the phrase "order forrecovery of possession" used in Para. 10C is alternative to the word"decree" and so, that paragraph must be read as follows: "Whereany order for recovery of possession, or any decree for recovery of possession,of any house has been made but possession of the house has not been recoveredbefore the 6th day of July 1944 by the execution of the order for the recoveryof possession or by the execution of the decree for possession" etc. Ifthe paragraph is read in that manner, and it must be so read as a matter ofconstruction, it would at once be apparent that the phrase "order forrecovery of possession" cannot mean the order of the executing Courtdirecting delivery of possession in execution proceedings. That phrase mustmean an original order for recovery of possession-an order in the nature of adecree passed in a suit for ejectment. We will hereafter use the phraseoriginal order to distinguish it from an order passed in execution. The furtherground on which we rely for our aforesaid conclusion is as follows: It is awell established principle of construction that the same word or phrase used inone part of a statute must have the same meaning in every other part of thesame statute, unless the subject or context implies otherwise. In this light themeaning of that phrase must also be considered. That phrase occurs inParagraphs 10A (1) and 10A (2) which deal with the stage before execution. Theword "order" in that phrase occurring therein must therefore mean anoriginal order-an order in an original proceeding- a proceeding analogous to asuit. The learned advocate for the appellant, however, contends that thisinterpretation is not acceptable. He develops his argument in the followingmanner:

7. The draftsman of the Ordinance must be taken to know thedistinction between a decree and an order, a distinction which depends upon theform in which litigation is started. The final adjudication of the rights ofthe parties would be termed a decree or order (original order to adopt ourphraseology) according as the litigation had started on a plaint or on anapplication. But as a litigation to eject a tenant can only be started on aplaint there would be no sense in having the phrase "order for recovery ofpossession" in Para. 10C if the word "order" was used to mean"an original" order only. But that phrase cannot be ignored, and, onthe principle of construction that no word or phrase used by the Legislaturecan ordinarily be cut out, we have no other alternative but to take the word"order" used in that phrase to mean an order passed by the executingCourt in the absence of a satisfactory explanation. This argument requirescareful consideration. In the Presidency Towns ejectment proceedings can bestarted on an application by reason of the provisions of S. 41, PresidencySmall Cause Courts Act. A suit is not necessary. So in Calcutta the Small CauseCourt, as the trial Court, can make at the instance of the landlord an originalorder for recovery of possession.

8. On the law of procedure as it was existing in Calcuttawhen the Calcutta House Rent Control Order, 1943, was promulgated there wasnothing unhappy in having the phrase "order for recovery ofpossession" in Paras. 9A, (1), 9A (2) and 11 thereof, for there could bean original "order for recovery of possession," an ordercorresponding to a decree passed in a suit for ejectment. In the moffusil,however, a tenant can be ejected under the existing procedure only through asuit, and therefore there cannot at present be an original "order forrecovery of possession" of the demised premises. Those paragraphs of theCalcutta House Rent Control Order, 1943, were bodily incorporated in the BengalHouse Rent Control Order, 1942, by the amendment of 3rd July 1944, the dateregarding delivery of possession being only altered. That furnishes theexplanation as to why the word "order" was left side by side with theword "decree" in that phrase in Paras. 10A (1), 10A (2) and 10C,Bengal House Rent Control Order, 1942. As a matter of construction, however, aswe have already noticed the phrase "order for recovery of possession"used in Para. 10C, cannot include an order directing delivery of possessionmade by the executing Court in execution of a decree for possession. The ordersof the executing Court dated 13th and 21st July 1944 by which the nazir wasenjoined to deliver possession cannot therefore be set aside by the directinvocation of Para. 10C. Those orders would fail through only if the decree forpossession can be set aside by taking the aid of Para. 10C. As the appellantsprayer in the application which he made on 8th August 1944 was for settingaside those two orders passed by the executing Court but not the ex partedecree he cannot strictly ask for any relief in these proceedings. But as theCourt to which the application under Para. 10C was made was also the Courtwhich had passed the decree, we think that it would be proper to proceed on thefooting as if that application had been made to the Court which had passed thedecree with a prayer for rescinding the decree. If that course had beensubsequently adopted in the lower Court it would only have required anamendment of the application, which would have been allowed to avoidmultiplicity of proceedings. A decree for ejectment can, however, be rescindedor varied only if the Court comes to the conclusion that it would not have beenmade at all or made in that form if Para. 10 of the Ordinance had been in forceat the time when the decree was passed. This is what has been laid down inPara. 10C.

9. At the time when the respondent instituted his suit forejectment against the appellant who was a mere monthly tenant it was notnecessary for him to find the cause of action on any of the matters mentionedin the three provisos to Para. 10 (1). In fact none of the causes mentioned inthose provisos would have then given him a cause of action for ejectment-noteven the breach of provisions of cl. (m), (o) or (p) of S. 108, T. P. Act, forthese breaches would then have furnished a cause of action for damages only. Anotice to quit Could be, at that time, the only available cause of action forejectment. It would, therefore, be unreasonable to tie him down to his plaintin an enquiry to be made by the Court under Para. 10C. We think that in thatenquiry he can show that conditions mentioned in any one of three provisos werein fact present, though he had not pleaded them in his plaint, because at thetime when the suit for ejectment was instituted none of those pleas would havebeen relevant. The language employed in the concluding portion of Para. 10C iswide enough to enable him to raise the pleas mentioned in the provisos and asthe justice requires that he should be offered the opportunity to raise any oneof those pleas mentioned in the provisos to Para. 10 (1) and to substantiatethem by evidence we do not think that we should give that narrow constructionto Para. 10C which would have the effect of adding the words "on the caseas made in the plaint" after the words "if it is of opinion." Inthis view of the matter, there must be a remand to the Court of first instanceso that the respondent may say on which proviso to Para. 10 (1) or which partof Provisos (a) and (c), if he relies on them, he places his case and theparties may lead evidence.

10. Mr. Gupta who is appearing for the respondent, however,submits that even on this view of Para. 10C a remand is not necessary, for theappellant cannot invoke the statutory protection from eviction, as he cannot betaken to have observed the conditions laid down in Para. 10 of the Ordinance,if it be deemed to have been in force on 3rd March 1944, when the decree forejectment was passed. His argument is that that as the Ordinance is to bedeemed to be in force on 3rd March 1943, though in fact it was not in forcethen, some adaptation has to be made to Para. 10 and that the only possibleadaptation which the nature of the case demands is to read sub-para. (4)without the last sentence which gives the tenant the three months time to payup all arrears leaving sub-para. (1) as it is. To support his contention herelies upon the decision in 49 C. W. N. 647 Radharani Debi v. Sanat KumarChatterjee (45) 49 C. W. N. 647. That decision being of a single Judge Benchhas only recommendatory force. The reason given in that judgment for thenecessity of an adaptation of sub-para. (4) and for the adaptation in thatmanner is that the tenant would get a much longer time than three months to payup arrears of rent, if that sub-paragraph be taken as it exists. We are notimpressed by that reason. The policy of the Ordinance as expressed is to giveto the tenant who is in arrears a period of grace. If an ejectment suit broughtagainst a tenant, who was also in arrears, on a notice to quit had been fixedfor final hearing and on that very date the Ordinance had come into operationin fact, the Court could not have passed a decree for ejectment on that date,but would have been bound to postpone the hearing date so as to give the tenantchance to pay up arrears. It is the opportunity to be afforded to pay, and notthe time within which to pay, is of the essence in a case to be consideredunder para. 10C.

11. In the case before us the decree could not have beenpassed on 3rd March 1944, if Para. 10 had been in force on that date, for thoughthe tenant was in arrears at that date he could not have been deprived of theopportunity to pay them up. In any case if any adaptation is necessary that canbe done by substituting the words "commencement of the order" inplace of the words "sixth day of July 1944," because the 6th day ofJuly 1944 was in fact the date of the commencement of Para. 10 of theOrdinance, and to take the phrase "if the provisions of Para. 10 of thisorder had been in operation at the date of the...... decree," used in Para.10C, as it can be done without straining the language unduly, as equivalent tothe phrase "if the provisions of Para. 10 had come into operation at thedate of the.... decree." This would avoid the mutilation of Para. 10 (4),and so would accord with the fundamental principle of construction of statutesthat the interpretation is to be preferred which avoids additions to oromissions of words or phrases from a statute. We cannot therefore accept thedecision on this point in 49 C. W. N. 647 Radharani Debi v. Sanat KumarChatterjee (45) 49 C. W. N. 647 or Mr. Guptas argument on this point. The neteffect of Para. 10C is that the Court would look only into the question as towhether facts justifying the application of any one of the provisos to Para. 10(1) were in existence at the time when the decree in question was made. Theresult is that this appeal is allowed. The judgments of the Courts below and ofthis Court in the second appeal are set aside. The case is remanded to thelearned Munsiff. On receipt of the record he will cause written notices of thearrival of the records to be served on the pleaders of both parties as soon aspossible. The respondent must within ten days of the service of said notice onhis pleader state to Court in writing on which of the provisos to Para. 10 (1)of the Ordinance and on which parts thereof he relies, and he must also givesuch particulars in that statement as are required in plaints. The learnedMunsif would give to the parties opportunity to lead evidence-the respondent insupport of his statement, and the appellant in rebuttal. The learned Munsif isrequested to decide the case as expeditiously as possible, and if possiblebefore the Court closes for the next long vacation. The costs before us, and ofthe second appeal as also of the final hearing after remand would abide theresult. The parties would bear their respective costs of the past hearingsbefore the learned Munsif and the Subordinate Judge. Let the records be sentdown without delay.

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Nanda Lal Roy vs.Suresh Chandra Sen (01.08.1945 - CALHC)