Arun K. Mukherjea, J.
1. This is an appeal against a judgment and order dated 30th April, 1960, of the 5th Bench of the City Civil Court by which a decree of ejectment was passed against the defendant.
2. The short facts of the case are as follows: The defendant was a tenant under the plaintiff in respect of one shop room on the ground floor of premises No. 244, Chittaranjan Avenue, Calcutta. The tenancy was according to the English calendar month. By an order the 10th August, 1957 the Third Judge of the Presidency Small Causes Court at Calcutta fixed the standard rent of the premises in suit at Rs. 39/9/-per month from July, 1949 upto March, 1952 and at Rs. 39/11/- (i. e. Rs. 39. 69 nP) with effect from the ,1st April 1952. According to the plaintiff, the defendant continued to pay rent for the months of July, August, September and October, 1957 at the rate of Rs. 38.50 nP. though before the dates of deposits of these rents the rent had been standardised at a higher rate. It was only on the 21st December, 1957 that the defendant paid Rs. 67.25 nP which, according to the defendant, included rent at the rate of Rs. 39. 69 nP. for the month of November, 1957 as well as an excess amount so calculated as to wipe out the earlier arrears. The plaintiff claims that the defendant failed to pay or deposit the standard rate of rent i. e. Rupees 39.69 nP for more than four months in the same calendar year and is not, therefore, entitled to the benefits of protection from eviction under the West Bengal Premises Tenancy Act, 1956. A notice of ejectment dated 24th March, 1958 was served on the defendant asking the defendant to vacate the premises on the expiry of the last date of April, 1958. The defendant having failed to vacate the premises in terms of the said notice, the plaintiff filed the present ejectment suit.
3. The main defence of the defendant as it appears from the written statement is as follows: The plaintiff was entitled to the increased amount only after the 10th August, 1957. Calculating from and after that date, rents at higher rate were liable to be deposited only for September and October. There was, therefore, default only in respect of those two months. The defendant admits that in respect of November also there was technically a short deposit. Thereafter the rents have been paid at proper rates.
4. On the basis of these pleadings the following issues were settled for determination by the learned trial Judge :--
1. Did the defendant default in payment of rent for more than 4 months as alleged in paragraphs 4 and 5 of the plaint? What was the rate of rent prevalent at the time the rents for the months from July 1957 to October, 1957 deposited in the office of the Rent Controller?
2. Was the Municipal taxes a part and parcel of the rent payable by the defendant to the landlord in respect of the premises in suit?
3. Is the defendant's tenancy duly determined by notice to quit? Is the same legal valid, sufficient and operative in law?
4. To what relief is the plaintiff entitled?
5. The learned trial Judge held that issue No. 2 was redundant. With this we agree unhesitatingly. The defendant had not challenged the fixation of the standard rent by the Appellate Judge. Not having done so in appropriate proceedings it is no longer open to the defendant to come and do so collaterally by contending in this suit that the legal rent for the suit premises was not what had been fixed by the Appellate Judge on the 10th August, 1957. We are not sitting here in appeal from the order by which rent had been standardised. We, cannot, therefore, go into that question at this stage. The question whether municipal taxes are a part and parcel of the rent payable by the defendant to the landlord and the question whether municipal taxes have been included within the rent by the Appellate Judge who standardised the rent are questions with which we have no concern whatsoever in this suit. The learned trial Judge was, therefore, right in holding that issue No. 2 is an entirely superfluous issue. The learned Judge, of course, goes on to justify this standardisation but this, in our opinion, was not necessary for the purposes of the suit.
6. The real important issue is Issue No. I. On this issue the learned trial Judge has found entirely in favour of the plaintiff. We are also in agreement with the learned trial Judge on this point. On 12th August, 1957 when the defendant deposited the rent for July, 1957 the order of standardisation had already been made. Therefore, rent was liable to be paid at the rate of Rs. 39.69 nP. In fact, what the defendant paid on 12th August, 1957 was less than the legal rent in respect of the month of July, 1957. He paid at that rate for July, August, September and October, 1957. Therefore, that by itself would mean that the defendant had defaulted in payment of rent for four months in course of a year. It was argued on behalf of the defendant before the learned trial Judge that the period of 12 months for which defaults have to be counted is the period of twelve months just preceding the date of filing of the suit and that since the present suit had been filed on 10th October, 1958, any default earlier than 10th October, 1957 should not be taken into consideration. Reliance was placed on the decision in Gopal Chandra v. Murari Mohan, reported in (1958) 62 Cal WN 614. It was contended that the four defaults which would disentitled the defendant to protection from eviction in terms of the proviso to Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act, 1956 must be defaults within a period of twelve months prior to the filing of the suit. It was sought to be argued that since during the period of 12 months prior to 10th October 1958, i. e. to say, in the period 10th October, 1957 to 9th October, 1958 there were only twodefaults, namely, default in respect of the payment of the rent for September 1957 and also in payment of rent for October, 1957, the earlier two defaults for July, 1957 and August, 1957 should be ignored for the purpose of counting the defaults in terms of the proviso to Section 17 (4) of the Act. It appears, however, that the defendant had deposited the rents for November and December, 1957 with the Rent Controller and that he had not tendered these rents to the landlord before depositing them with the Rent Controller. The learned Judge held that as the deposits for November and December, 1957 were made without previous tender of the same to the plaintiff, those deposits were not valid deposits so that there were defaults also in respect of November and December, 1957. Indeed, the learned Judge found that all the deposits made by the defendant from October, 1957 right upto the date of the filing of the suit in October, 1958 were invalid deposits even when the deposits were made at tie higher rate because they were in contravention of Section 21 of the Act of 1956. There was sortie attempt on the part of the part of the defendant to make out a case that a prior tender to the plaintiff had been made. For this purpose, reference was made to an affidavit dated 19th December, 1957 filed by the defendant before the Rent Controller, Calcutta, at the time of the deposit made in December, 1957. Paragraph 2 of that affidavit runs as follows: --
'4. That the tenant tendered Rs. 22/9/-as increased arrears of rent from April, 1956 to October, 1957 and also Rs. 39/11/- as rent for November, 1957 to the landlord within the prescribed date under Section 4 of the West Bengal Premises Tenancy Act, 1956 but the landlord refused to accept it.'
7. The learned Judge rejected this story and described it as a complete after-thought. Indeed, before delivering judgment in this case the learned trial Judge recalled the defendant and examined him on this point on 4th April, 1960. The learned trial Judge asked him the following question :--
'After the appellate Judgment was passed on 10-8-57, did you tender rent as fixed by the appellate Court to the landlord?' The defendant's answer was as follows: -- 'I went to the landlord in the first week of December, 1957 with money to pay rent of November, 1957 and arrear Municipal Taxes from April, 1956 to October, 1957. But he refused to take the money. Then I deposited the money in Rent Control Office.'
On cross-examination by the plaintiff the defendant said he could not remember the date when he tendered rent to the plaintiff but that it was in the first week of December, 1957. The defendant, however, admits that he did not thereafter send the money by money order. It is significant that when the defendant had come into the witness box for the first time he did not mention about this tender before the landlord in December, 1957 at all. The fact thatthat defendant stated before the learned Judge that he went to the landlord in the first weekof December to offer rent of November, 1957 and 'arrear municipal taxes from April to October, 1957' shows that the defendant was not a witness of truth. When he refers to 'arrear municipal taxes from April 1956 to October, 1957' he was apparently referring to the increase in rent that he had to pay in view of the order of standardisation of rent passed on 10th August, 1957. But the defendant obviously overlooked that he had already deposited rents for August, September and October, 1957 with the Rent Controller at the rate of Rs. 38.50 nP. that is, at the old rate even though rent had been fixed at Rs. 39.69 nP. from 11th August, 1957. Besides, there is nothing in his earlier evidence to suggest that the defendant had tendered those rents to the plaintiff before depositing the same with the Rent Controller. For these reasons the learned Judge refused to believe the witness. We see no reason to interfere with the learned Judge's finding, particularly, in view of the fact that the learned trial Judge had the advantage of recording the evidence himself and therefore of seeing the demeanour of the witness.
8. Even if we accept the defendant's evidence that he had tendered the rent for November to the landlord before depositing the same with the Rent Controller, that by itself would not entitle the defendant to the benefits of Section 17, Sub-section (4) of the said Act. All deposits made after December, 1957 to October, 1958 were made without tendering them before the landlord in the first instance. Those deposits, therefore, would be in contravention of Section 21 of the said Act and would be invalid deposits. It was, argued on behalf of the appellant that it is not necessary for the tenant to tender the rent every time to the landlord before depositing the same with the Rent Controller. It was contended that a valid tender of a month's rent to the landlord on one occasion would be sufficient not only for the tenant's deposit of the rent of that month with the Bent Controller but also for a subsequent deposits of rent with him. Reliance for this purpose was placed on a Division Bench judgment of this High Court in Satya Chorone Roquittee v. Suresh Chandra, (1961) 65 Cal WN 1239. But this is a point which was not relevant for the purpose of deciding that case and must be regarded as obiter. P. N. Mookerjee, J. who delivered the judgment in that case made this observation in his judgment to clear up what his Lordship describes as a reported misconception about another decision of his Lordship, namely, Ballabhdas Agarwal Pvt. Ltd. v. Dalhousie Properties Ltd., 65 Cal WN 1021. As this was a point which was not necessary for his Lordship to decide in the case of Satya Chorone Roquittee, (1961) 85 Cal WN 1239 his Lordship did not give any reasons for this observation. With great respect we are unable to agree with this observation. Section 21 and Section 22 of the Act are the relevant sections in this connection, Sub-sections (1) and (2) of Section 21 are in the following terms:--
'21. Deposit of rent by the tenant. - (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner.
(2) The deposit shall be accompanied by an application supported by an affidavit by the tenant stating -
(a) the premises for which the rent is deposited with the description sufficient for identifying the premises;
(b) the period for which the rent is deposited;
(c) the name and address of the landlord, or the person or persons claiming to be entitled to such rent;
(d) the reasons and circumstances for the application for deposit of the rent;
Provided that in the case of deposits of rent for successive months during any continuous period no affidavit in support of applications shall be required after the first deposit if the reasons and circumstances which led the tenant to make the first deposit remain the same '
We are not concerned with the other subsections and other provisos to that section here. The proviso to Sub-section (2) shows that in the case of deposits of rent for successive months during any continuous period it is not necessary for the tenant to make another affidavit in support of his application for deposit before the Rent Controller if the reasons and circumstances which led to the first deposit continue to be the same. This specific mention dispensing with the filing of an affidavit in the case of subsequent deposits shows that all other requirements and Formalities involved in making a deposit should be the same in the case of such subsequent deposits as in the case of a first deposit. Besides, the language of Sub-section (1) of Section 21 puts the matter beyond all doubts. It says where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 the tenant may deposit such rent with the Rent Controller in the prescribed manner. The words 'such rent' towards the latter part of this Sub-section obviously refer to 'any rent' in the first part and must obviously mean rent for every month. Every deposit must, therefore, be preceded by a proper tender and a refusal on the part of the landlord to accept the tender. In the instant case even the defendant does not say that he made any tender before the landlord after December, 1957. Therefore, all deposits of rent before the Rent Controller beginning from December upto October, 1958 were in any event invalid deposits. Unless the deposits are valid and in conformity with Section 21 of the Act, the deposits cannot cure the defaults for the respective months.
9. Therefore, in any view of this matter it is quite clear that between October, 1937 and October, 1958 the appellant was guilty of four defaults so that the appellant is not entitled to the protection afforded by Sub-section (4) of Section 17 of the Act.
10. The result is that this appeal must fall and we order as follows: The appeal is dismissed with costs and the judgment and order dated 30th April, 1960 are confirmed.
11. I agree.