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Siddheswar Paul Vs. Prakash Chandra Dutta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSpecial Bench Ref. in Civil Revn. Case No. 1259 of 1961
Judge
Reported inAIR1964Cal105,68CWN30
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13, 13(1), 17, 17(1), 17(3), 21, 22, 22(1) and 22(3)
AppellantSiddheswar Paul
RespondentPrakash Chandra Dutta
Appellant AdvocateAnil Kumar Sen and ;Madhusudan Banerjee, Advs.
Respondent AdvocateBijan Bihari Das Gupta, ;Ashoke Kumar Sen Gupta and ;Rathin Dey, Advs.
Cases ReferredBengal Immunity Co. v. State of Bihar
Excerpt:
- bose, c.j.1. this reference to the special division bench arises out of a civil revision case relating to proceedings under sub-sections ( ) and (3) of section 17 of the west bengal premises tenancy act, 1956. the opposite party landlord instituted a suit against the petitioner tenant on 14th september, 1960, for recovery of possession of premises no. 26/1/ic, rupnarayan nandan lane, in p. s. bhowanipore dist. 24-parganas, on the ground in clause (k) of sub-section (1) of section 13 of the west bengal premises tenancy act, 1956. the writ of summons in the suit was served upon the tenant on 3oth october, 1960, and the tenant entered appearance in the suit on 4th november, 1960. the tenant deposited with the rent controller the rent for the months of november and december, 1960, on 14th.....
Judgment:

Bose, C.J.

1. This reference to the Special Division Bench arises out of a Civil Revision case relating to proceedings under Sub-sections ( ) and (3) of Section 17 of the West Bengal Premises Tenancy Act, 1956. The opposite party landlord instituted a suit against the petitioner tenant on 14th September, 1960, for recovery of possession of premises No. 26/1/IC, Rupnarayan Nandan Lane, in P. S. Bhowanipore Dist. 24-Parganas, on the ground in Clause (k) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956. The Writ of Summons in the suit was served upon the tenant on 3oth October, 1960, and the tenant entered appearance in the suit on 4th November, 1960. The tenant deposited with the Rent Controller the rent for the months of November and December, 1960, on 14th December, 1960, and nth January, 1961, respectively. On 17th January, 1961, the tenant filed his written statement. On 27th January, 1961, the landlord filed an application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, for striking ont the defence of the tenant. On 10th March, 1961, the tenant filed an application under Section 17 (2) of the Act for determination or adjustment of rent. The learned Munsif before whom the said applications came up for hearing by his order dated the 22nd March, 1961, dismissed the application under Section 17 (2) on the ground that it is time barred but allowed the application under Section 17 (3) and struck off the defence as against delivery of possession for non-compliance with Section 17 (1). The tenant has obtained a Rule against this order. This Rule came up for hearing before a Single Bench of this Court. The learned Judge referred the matter to a Division Bench in view of conflict of decisions on the points involved. Before the Division Bench consisting of Bachawat and Laik, JJ., the order so far as it related to Section 17 (2) was not challenged but only the order so far as it related to Section 17(3) was challenged. The Division Bench felt that the Bench decision of this Court in the case of Abdul Majid v. Dr. Samiruddin : AIR1958Cal593 requires reconsideration in view of fundamental differences of opinion on the construction of Section 17 of the Act, and by their order dated 20th November, 1962, referred this Revision Case to me under proviso (iij to Rule 1 of Chapter II of the Appellate Side Rules for appropriate reference to a Special Division Bench. This Bench has been thereupon constituted for hearing the matter.

2. The main question which falls for consideration is whether a deposit in the Rent Controller's Office, of lent becoming payable after a suit or proceeding for ejectment is instituted and the writ of summons is served, can be said to be 'payment to the landlord' within the meaning of that expression as used in Section 17 (1) of the West Bengal Premises Tenancy Act. The provision which is called in aid of the argument in Section 22 (3) of the Act. So it is convenient to set out Section 22 at this stage which is as follows:

'22. Time-limit for making deposit and consequences of incorrect particulars in application for deposit -

(1) No rent deposited under Section 21 shall be considered to have been validly deposited under that section for purposes of Clause (i) of Sub-section (i) of Section 13, unless deposited within fifteen days of the time fixed by the contract in writing for payment of the rent or, in the absence of such contract in writing, unless deposited within the last day of the month following that for which the rent was payable.

(2) No such deposit shall be considered to have been validly made for the purposes of the said clause if the tenant wilfully or negligently makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery of possession of the premises from the tenant.

(3) If the rent is deposited within the time mentioned in Sub-section (i), and does not cease to be a valid deposit for the reason mentioned in Sub-section (2) the deposit shall constitute payment of rent to the landlord as if the amount deposited has been legal tender of rent if tendered to the landlord on the date fixed by the contract for payment of rent when there is such a contract, or, in the absence of any contract, on the fifteenth day of the month next following that for which rent is payable.'

3. The question is whether Section 22 (3) can be invoked for the purposes of satisfying the requirement of payment to the landlord as contemplated in Section 17 (i).

4. Now the provisions for deposit of rent in the Rent Controller's office are contained in Chapter IV of the Act. Section 21 (i) provides that it is only when 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. So unless the landlord refused to accept rent tendered in time or there is a bona fide dispute as to whom the rent is payable no deposit can be made in the Rent Controller's office. It is therefore rightly pointed out that the deposit of rent in terms of Section 21 which is constituted as payment of rent to the landlord under Sub-section (3) of Section 22 cannot be equated with payment at rent as contemplated in Section 17 (i) which casts an independent obligation upon the tenant after a suit for ejectment is filed and the writ of summons is served, to deposit in Court or pay to the landlord within one month of the service of the, writ of summons an amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made with interest as specified in the section; and thereafter he has to deposit in Court or pay the rent subsequently falling due month by month by the isth of each succeeding month. If there be no arrears at the time of the service of the Writ of summons or no arrear accrues within one month of the service of the writ of summons the tenant has to go on depositing in Court or paying to the landlord the monthly rent as it accrues due after the expiry of one month from the service of the writ within the 15th of next month. This statutory obligation is cast upon the tenant notwithstanding the fact that the landlord may have refused earlier to accept rent from the tenant and this had led the tenant to deposit the rent in the Rent Controller's office. So the nature and origin of the notional payment under Section 22 (3) and the payment under Section 17 (1) are different. Further the scheme of Section 17 is that in case of a suit or proceeding on any of the grounds referred to in Section 13 the deposit in Court or payment to the landlord as contemplated in Section 17 (1) can be made. But the deposit in Section 22 of the Act has relation or reference to only one ground, that it ground in Section 13 (1) (i). It is the case of deposits of rent for purposes of Clause (i) of Sub-section (i) of Section 13 that is dealt with in Section 22. Tho time limit for deposit under Section 22 is within fifteen days of the time fixed by the contract in writing for payment or in the absence of the contract within the last day of the month following that for which the rent is payable. All the Sub-sections (1), (2) and (3) of Section 22 form part of an integral scheme and they should be read together. Sub-section (3) cannot be divorced from Sub-sections (1) and (2). The expression 'the deposit' in Sub-section (3) refers to the identical deposit made for purposes of Section 13 (1) (i) as contemplated in Sub-sections (i) and (2) of Section 22. Then again as pointed out by Das Gupta, J., in the case of : AIR1958Cal593

'the deposit in the Rent Controller's office will be a valid deposit in a case where there is no contract in writing as regards the date of payment, if paid within the last day of the month following that for which the rent was payable that is 13 or 14 or 15 or 16 days after the 15th day of the succeeding month. In spite of this the effect of Sub-section (3) would be that the rent would be deemed to have been paid on the 15th day of the month following that for which the rent is payable. Thus a notional payment on the 15th of the succeeding month would have to be taken as sufficient compliance with the stringent requirement of Section 17 (i) that the payment must be made by the 15th of each succeeding month. I am unable to persuade myself that the legislature having in its Section 17 laid down definitely that 'payments must be made month by month by the 15th of each succeeding month irrespective of whether there was a contract fixing a date of payment or not would lightly brush that aside and produce by the words in Sub-section (3) of Section 22 the effect that payment even on the last day of the month succeeding, that for which the rent was payable would be sufficient.'

I agree that this is another feature which suggests that the scope and field of operation of Section 22 (3) and Section 17 (1) are different and they do not overlap and Section 17 excludes the operation of Section 22 (3).

5. Banerjee, J., in the case of Rampher Jaiswal v. Ram Subhag Shaw, 64 Cal WN 880 at p. 890 has given a reason in favour of the tenant to the following effect: -

'If what is payable under Section 17 (1) is not rent and if deposit in Court under Section 17 (1) has not the effect of deposit of rent with the Rent Controller or of payment to the landlord, then if the pending suit fails against the tenant, either on technical ground or on merits, a tenant may ultimately fall within the mischief of Section 13 (1) (i) of the Act and lose his statutory protection from eviction. That must be the undesirable consequence, in spite of the fact that the tenant was compelled to deposit a sum of money equivalent to rent, month by month, in the Court where a euit for eviction was pending against him, so as to save himself from the penal consequence of Section 17 (3). It is not to be expected that a tenant would go on depositing rent with the Rent Controller in order to save himself from the penal consequences of Section 13 (1) (i) and simultaneously go on depositing another sum of money equivalent to the monthly rent in Court in order to save himself from the penal consequences of Section 17 (3).'

6. I am however unable to agree with this reasoning. If pending suit the tenant deposits in Court or pays to the landlord in terms of Section 17 (i) it cannot possibly be contended in the face of the express provision of the statute which prescribes this special mode of discharge of liability of the tenant that in respect of the period for which the payment is made the tenant will still be regarded as in default. Such a construction will not be consonant to reason and common sense. In adjusting the ultimate liability of the tenant with regard to rent the amount deposited or paid in terms of Section 17 (1) has to be taken into account and has to be regarded as discharge of the liability for rent. This is on the principle which prevents unjust enrichment. The landlord cannot be allowed to pocket the money or retain it and at the same time contend that the tenant remains a defaulter for not discharging his liability for payment of rent. Sub-section (4) of Sections 17 also points to such a conclusion. The Sub-section is as follows: -

'If a tenant makes deposit or payment as required by Sub-section (i), or Sub-section (2) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord.'

7. So it is clear that by reason of the deposit or payment as required by Section 17 (1) or 17 (2) the tenant is regarded as no longer to be in default in payment of rent. In other words if the tenant follows the mode of discharge of liability for arrears and of the current liability laid down in Section 17 no question of default can arise. The fact however remains that the character of the deposit which constitutes payment to landlord under Sub-section (3) of Section 22 and the character of the payment as contemplated in Section 17 (1) are different and the one cannot be equated with the other. In some cases stress is laid on the expressions 'amount calculated at the rate of rent' and 'sum equivalent to rent' and it is contended that the amounts paid or deposited in terms of Section 17 (1) is not 'rent' but I am unable to accept this contention. It appears to me that the amount paid in accordance with the provisions of Section 17 is in discharge of the liability for rent, and the distinction sought to be drawn between the expressions used in Section 17 (1) and the expression 'rent' is unreal.

8. The attention of the Court was drawn in course of argument to cases reported in Gokul Bala Roy v. Sarat Chandra Ghosal; 61 Cal WN 890; Ganesh Chandra v. Mahabir Prosad, 61 Cal WN 893; Rajib Lochan Banerjee v. Anil Kumar Ghosh, 64 Cal WN 685; Anil Chandra v. Sati Prosanna, 64 Cal WN 689; Subhas Chandra y. Panchu Rani Dutta, 64 Cal WN 438; Dr. P. Bhattacharyya v. Lakhpati Davi, 64 Cal WN 763; Ajit Kumar Sen v. Baijnath Somani, 65 Cal WN 1110; Lakshmi Kanta v. Behari Lal Poddar, 67 Cal WN 553 and other cases but it is unnecessary to prolong this Judgment by a detailed discussion of these cases.

9. It has been also faintly argued that the Rent Controller is a Court, and the deposit with, the Rent Controller is 'deposit in Court' within the meaning of that expression as used in Section 17 (1). The argument is devoid of any substance. The expression 'Court' in Section 17 (1) means the Court in which the suit or proceeding for ejectment is pending.

10. The result, therefore, is that the deposits of rent which were made by the petitioner in the Rent Controller's office in respect of the rents for the months of November and December, 1960, on 14th December 1960 and nth January, 1961, respectively were neither deposits in Court nor payment to the landlord within the meaning of those expressions as used in Section 17 (i) of the Act and thus there being non-compliance with the provisions of Sub-section (i) of Section 17 of the Act the trial Court was right in making the order striking out the defence against delivery of possession. In the circumstances the rule must be discharged.

11. In accordance with the opinion of the majority the Rule is discharged. There will be no order as to costs.

Bachawat, J.

12. On October 30, 1960, the writ of summons in the suit was served upon the tenant. On December 14, 1960 and on January 11, 1961, respectively the tenant deposited with the Rent Controller rents for the months of November and December, 1960, at the rate last paid. The deposits were made within the time mentioned in Section 22 (1) of the West Bengal Premises Tenancy Act, 1956 and were not rendered invalid for any reason specified in Section 22 (2). By Section 22 (3) the deposits constituted payments of rent to the landlord. The tenant thus duly paid to the landlord sums equivalent to the rent for the months of November and December. 1960, at the rate at which it was last paid by the 15th of the succeeding month as required by Section 17 (1), and his defence against delivery of possession was not liable to be struck out Tinder Section 17 (3) on the ground that he failed to deposit or pay any amount referred to in Section 17(1) on account of rent for those months.

13. A valid deposit of rent under Section 21 by the 15th of the succeeding month amounts to payment of a sum equivalent to rent by the 15th of the succeeding month as required by Section 17(1). With respect I cannot agree with the decisions to the contrary in : AIR1958Cal593 and 61 Cal WN 893,

14. I reject the contention that Section 17 requires the tenant to deposit or pay sums which are not rent. The object of Section 17 is to secure to the landlord punctual payment of rent by the tenant during the pendency of a suit for eviction against the tenant. The tenant is required by Section 17 (1) to deposit in Court or pay to the landlord sums equivalent to rent at the rate at which it was last paid, but by Section 17 (2) if there is dispute as to the amount of rent payable and the tenant makes a proper application to the Court for its determination, the tenant is required to deposit or pay only the amount of rent determined by the Court to be due from him having regard to the provisions of the Act. Section 17 (2) makes it plain that the amounts required to be deposited or paid under Section 17 are rent and nothing else. The expressions 'an amount calculated at the rate of rent at which it was last paid' and 'a sum equivalent to the rent at that rate' quantify the amounts of rent to be deposited under Section 17 (1). The legislature could not have intended that the tenant would continue to deposit or pay punctually the amounts equivalent to rent required to be deposited or paid by Section 17 (1) and would at the same time be deemed to have defaulted in the payment of the rent, see the observations of Banerjee, J., in 64 Cal WN 880 at pp. 890-1. A tenant in possession of the premises against whom a suit for eviction has been instituted, but against whom no decree for eviction has been passed, is still a tenant within the meaning of Section 2 (h) and is under the obligation to pay rent to the landlord as required by Section 4 (1). Sections 17 and 21 read with 22 provide for discharge of this basic obligation to pay rent; they do not allow recovery by the landlord of sums in addition to rent in contravention of the provisions of Sections 4 (3) and 5 (1).

15. There is no substance in the contention that Section 17 (1) requires the tenant to pay 'a sum equivalent to the rent' with a view to avoid the consequence that the acceptance of rent may amount to waiver by the landlord of a previous notice or default. No question of any waiver of any previous notice or of a previous default can arise from the mere fact of deposit of rent in Court under Section 17. The landlord may withdraw the amounts deposited in Court under an order of Court and if the Court permits him to withdraw the amounts without prejudice to his contentions in the pending suit, the withdrawal will not operate as a waiver by him of any previous notice or default.

16. I find nothing in Section 17 to limit the operation of Sections 21 and 22 to cases where no suit for eviction of the tenant is pending. Unlike Section 24, the operation of Sections 21 and 22 is not in terms so limited. Had the legislature intended to exclude the application of Sections 21 and 22 to cases where a proceeding for eviction is pending in Court, it would have expressly sard so, as in Section 24. The legislature could not possibly intend that the tenant would not be at liberty to deposit rent in the Rent Conroller's office after the institution of a suit for eviction against him. Until the tenant comes to know of the institution of the suit, he cannot deposit the rent in Court under Section 17 and until then the only practical course open to him to save himself from the consequences of default in payment of rent is to deposit the rent in the Rent Controller's office under Sections 21 and 22. The case of 64 Cal WN 689 shows that the tenant may validly deposit rent with the Rent Controller within a month of the service of the writ of summons of the suit for eviction.

17. There is also nothing in Sections 17, 21 and 22 to support the alternative contention of Mr. Das Gupta that the operation of Sections 21, 22 is limited to the period before the expiry of one month of the service of the writ of summons. If a valid deposit of rent in the Rent Controller's office within one month of the service of the writ of summons may amount to payment of rent to the landlord, there is no reason why such a deposit after one month of the service of the writ of summons may not amount to payment to the landlord within the meaning of Section 17 (1).

18. On behalf of the landlord it is urged that in cases where there is no contract in writing fixing the time for payment of the rent, the effect of Section 22 (3) is that a deposit of rent on the 20th day of succeeding month, would be deemed to be a payment of rent on the 15th day of the succeeding month and that the legislature could not have Intended that a deposit on the 20th constituting a notional payment on the 15th would be taken as sufficient compliance with the stringent requirement of Section 17 (1) that the payment most be made within the 15th of the succeeding month. I find no substance in this contention. The assumption that a deposit of rent in the Rent Controller's office on the 20th of the succeeding month would constitute payment to the landlord on the 15 of the succeeding month is based upon a misreading oi Section 22 (3). The deposit of rent in the Rent Controller's office constitute payment to the landlord under Section 22 (3) on the date on which the deposit is made. The provision in Section 22 (3) that 'the deposit shall constitute payment of rent to the landlord as if the amount deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment of rent when there is such a contract, or, in the absence of any contract, on the 15th day of the month next following that for which rent is payable' means that a valid deposit of rent under Section 21 within the time specified in Section 22 (r) would constitute a payment of the rent as if the amount deposited were validly tendered by the last date fixed by Section 4 for the payment of the rent. Section 21 enables the tenant to make the deposit not only where the landlord refused to accept the rent tendered within the time fixed by Section 4, but also where there is a bona fide doubt as to the person to whom the rent is payable and, in all such cases. Section 22 (1) enables the tenant to make the deposit after the expiry of the time fixed by Section 4, provided he does so within the extended time specified in Section 22 (1). The object of Section 22 (3) is to provide that in all cases oi a valid deposit, even though the deposit is made after the expiry of the time fixed by Section 4, the amount deposited is deemed to be lawfully tendered within that time, so that the tenant is deemed not to have defaulted in payment of the rent. But the tender does not amount to payment or discharge of the debt, see Halsbury 3rd Edition Vol. VII Article 289 page 160; by Section 22 (3) the deposit constitutes the payment. Thus the payment is made on the date on which the deposit is made. To comply with the stringent requirement of Section 17 (1), the tenant must, therefore, deposit the rent with the Rent Controller by the 15th of the succeeding month. A deposit of rent in the Rent Controller's office after the 15th of the succeeding month would not constitute payment of rent to the landlord by the 15th of the succeeding month.

19. The further contention that where there is a contract in writing fixing the 20th of the succeeding month for payment of rent, the effect of Section 22 (3) is that a valid deposit of rent in the Rent Controller's office or the 15th of the succeeding month would constitute payment of rent on the 20th of the succeeding month and not on the 15th of the succeeding month as required by Section 17 (1) is also based on a misreading of Section 22 (3) and must be rejected. For the reasons already given the deposit of rent on the 15th of the succeeding month would constitute payment of rent on the 15th and not on the 20th of the succeeding month. In order to satisfy the stringent requirement of Section 17 (1), the tenant must make the deposit by the 15th of succeeding month, and if he does not do so he will not save himself from the penalty imposed by Section 17 (3).

20. The fact that by Section 23 the withdrawal of rent deposited under Section 21 operates as a waiver of a notice on the ground of default in the payment of rent referred to in Section 13 (1) (i) does not lead to the inference that the tenant may not deposit rent under Section 21 after the service of such a notice. Beyond doubt the tenant may validly deposit rents under Section 21 after the service of such a notice and before the institution of a suit on the ground of the default; he may also make such deposit within one month of the service of the writ of summons of the suit, see 64 Cal WN 689-4; and there is no reason why he may not continue to make the deposits during the pendency of the suit. Nor is it possible to say that the requirement of rent in Court under Section 17 shows an intention to preserve the efficacy of the notice on the ground of default after the institution of a suit on this ground. On the contrary Section 17 shows that the deposit of the arrears of rent with interest thereon within one month of the service of the writ of the summons of the suit will preclude the passing of a decree for eviction on the ground of the default, unless the default was for four months within a period of twelye months.

21. The overall argument on behalf of the landlord that the special requirement of Section 17 for deposit in Court of suras equivalent to rent has somehow taken away the right of the tenant to deposit rent in the Rent Controller's office under Section 21 during the pendency of a suit for eviction of the tenant overlooks the fact that under Section 17 the tenant is also at liberty to pay rent to the landlord during the pendency of the suit. By Section 22 (3), a valid deposit of rent under Section 21 in the Rent Controller's office operates as a payment of rent to the landlord. Where a valid deposit of rent at the rate last paid is made in the Rent Controller's office within the time specified in Section 17(1), there is a payment of an amount equivalent to rent as required by Section 17 (1) and there is no longer a failure by the tenant to pay the amount as contemplated by Section 17 (3).

22. The single certain method of payment of rent open to the tenant is by deposit of rent in the Rent Controller's office, and that method of payment is open to him whether or not a suit by the landlord for recovery of possession of the premises is pending. There may be breaks in the pendency of the suit. The suit may be dismissed for default of appearance of the plaintiff and after some time, the order of dismissal may be set aside, or the suit may be decreed ex parte and the ex parte decree may thereafter be set aside, or the suit may be decreed on contest and on appeal the suit may be remanded for fresh trial. If the landlord's contentions are accepted, the tenant must deposit rent with the Rent Controller during the intervening period while the suit is not pending and must deposit tent in Court as soon as the suit is revived, even if the revival takes place on the 15th day of the month and the tenant may not come to know of the revival for some time.

In my opinion, the tenant a not bound at his peril to make such a choice and he may, in all cases whether or not a suit is pending, save himself from the consequences of default in the payment of rent by depositing rent in the Rent Controller's office.

23. Section 21 affords the tenant valuable protection also in cases where there is a bona fide dispute as to the person or persons to whom the rent is payable and Section 17 does not take away this protection either by express words or by necessary implication. Where all the parties to such a dispute are not parties to the pending suit for ejectment, the deposit of rent in Court would not give the tenant the same protection as he would have enjoyed if he had made the deposit with the Rent Controller.

24. In my opinion the rule should be made absolute, the impugned order No. 15 dated the 22nd March, 1961 striking out the defence should be set aside, and the application of, the plaintiff under Section 17 (3) should be dismissed. The parties would pay and bear their own costs throughout.

Sinha, J.

25. (After stating the facts and how the Special Bench was constituted, the judgment proceeds as under:) The real point before us is as to whether in the circumstances of the case, the tenant was entitled to deposit the rents for November and December, 1960 with (the Rent Controller, and whether as a result of doing so be had rendered himself liable to have his defence struck out under the provisions of Section 17(3) of the said Act. There is indeed a conflict of decisions of this Court on the subject. It would be, in my opinion, futile to deal with all the cases. It would be sufficient to deal with some of them. Before I do so, it will be necessary to refer to certain provisions of the said Act. The first thing to be remembered is that, unlike the previous Rent Control Acts, the present Act, the West Bengal Premises Tenancy Act (Act XII of 1956) is a permanent Act, being an Act to provide for the regulation of certain incidences of tenancies of premises in Calcutta and some other areas in West Bengal. Previous to this enactment, there were a number of Rent Control Acts, orders and ordinances, all of them being temporary. It was felt that the time had come to give permanent protection to tenants in the city of Calcutta and some other congested areas of the State of West Bengal. The Act however not only gives protection to the tenant, but in many cases ameliorates the position of the landlord. In construing the Rent Acts, it has been repeatedly field, that one must not give too literal an interpretation. It is necessary to give a commonsense rendering of the provisions, such as is likely to achieve the objects with which the Act was framed. The temporary Act which it supplanted is the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 being West Bengal Act XVII of 1950. In construing the provisions of Section 17 of the present Act, read with some other Sections of the Act, it will be necessary to refer to the Act of 1950 to appreciate the difference in the provisions which has been deliberately made to meet and eliminate a particular evil. We can only appreciate the meaning of the new provisions in the 1956 Act if we are clear in our minds as to the exact evil that was intended to be remedied and the way that this has been effected by the 1956-Act.

I shall now refer to several provisions of the 1956 Act. Section 4 of the Act imposes a duty upon a tenant to pay to the landlord the contractual rent, so long a fair rent has not been, fixed. Where a fair rent has been fixed in accordance with the provisions of the Act, a tenant is to pay the fair rent to the landlord. Such rent, whether contractual or fair, is to be paid within the time fixed by the contract, by the 15th day of the following month. We now come to Section 21. Under Section 21, where the landlord does not accept any rent tendered by the tenant, within the time prescribed 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 Rent Controller, in the manner and according to the procedure laid, down in Section 21. It has been held that once the landlord has refused to accept the rent it is not necessary to tender the rent over and over again for each month, but the tenant may continue to deposit the same with the Rent Controller. The tenant has to make the deposit with the Rent Controller accompanied by an application supported by an affidavit making certain statements as required by Section 21(2). On such deposit being made, the Controller gives notice to the landlord. If the tenant wilfully or negligently makes any false statement in the application for depositing the rent, then the deposit is not a valid one also under Section 22, in order to be a valid deposit for purposes of clause (i) of Sub-section (i) of Section 13, it must be deposited within 15 days of the time fixed by the contract in writing for the payment of the rent or, in the absence of such contract in writing, within the last day of the month following that for which the rent was payable. Clause (i) of Sub-section (i) of Section 13 provides that where a tenant has made default in the payment of rent for two months within a period of 12 months, or for two successive periods in esses where rent is not payable monthly, then the landlord will be entitled to file a suit for eviction of the tenant and the tenant will not be protected. If the deposit doea not violate any of the above provisions but is in conformity with the same, then under Section 22(3), it shall constitute payment of rent to the landlord as if the amount deposited had been validly tendered to the landlord on the date fixed by the contract or on the 15th day of the month next following that for which rent was payable. Upon the deposit of rent, the Rent Controller gives notice to the landlord. The landlord may then withdraw the rent so deposited. If he does so, under Section 23 it will not operate as art admission as to the correctness of the rate of rent, or the period of withdrawal, or the amount due, nor shall it operate as a waiver of a notice to quit, except in one case, viz., where notice to quit was given by the landlord to the tenant on the ground of default, referred to in Clause (i) of Sub-section (1) of Section 13. In that case the withdrawal of the rent deposited would amount to a waiver.

We now come to Section 24. This deals with the situation where there is no proceeding pending in Court for the recovery of possession and the rent is accepted by the landlord directly after 'the tenant has committed a default in payment of rent. It is provided that such acceptance of payment by the landlord operates as a waiver of the default. We now come to Section 17, the relevant part thereof runs as follows:

'17. When a tenant can get the benefit of protection against eviction. -

(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall subject to the provisions of Sub- section (2) within one month of the service of the writ of summons on him, deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such arnount calculated at the rate of eight and one-third per cent vex annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

(2) If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (i), deposit in Court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable...

(3) If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2) the Court shall order the defence against Delivery of possession to be struck out and shall proceed with the hearing of the suit.

(4) If a tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord;

Provided that a tenant shall not be entitled to any relief under this Sub-section if he has made default in payment of rent for four months within a period of twelve months.'

26. Section 24, the provisions whereof have been referred to above, is entirely new. Under the old Act, late payment even for a day constituted default in payment of rent for that month and such default for two consecutive months gave the landlord a right to bring an actiop for ejectment. But the tenant in such a case was given the benefit of protection by depositing in Court the arrears of rent together with interest and cost. If however, the tenant had committed such default for two consecutive months on three occasions within a period of 18 months, the default could no longer be remedied. In such a case, the principle followed was 'once a defaulter always a defaulter.' Even if the rent was paid and accepted by the landlord after such default, it would not amount to a waiver. This was remedied by Section 24. Section 17 is a modification of Section 14 of the Act of 1950. The modifications have been made not only to benefit the tenant, but also the landlord. Under the 1950 Act, the landlord would have to file an application for an order directing the tenant to deposit the arrears of rent as well as current rent. In such a case, the tenint would have to deposit the rent, but this liability was restricted to suits brought on the ground of default only. All these difficulties have now been sought to be remedied. It is now provided that upon a suit or proceeding being instituted by the landlord, not only on the ground of default but on any of the grounds referred to in Section 13, the tenant is under a bounden duty to deposit the arrears of lent as well as the growing rent in Court, within the time prescribed. He may also make the payment directly to his landlord. If he does not do so, then he is to be penalised, and his defence in the suit is liable to be struck out. On the other hand, if he does make the deposit of the payment in terms of Section 17, no decree or order for delivery of possession will be made against him on the ground of default in payment of rent, provided however, that he has not defaulted in payment of rent for four months within a period of twelve months. If he has made such a default, then he loses the protection. I have already mentioned that Section 24 lays clown that, where no proceeding is pending in Court, the acceptance of rent in respect of the period of default operates as a waiver. In contrast where a suit or proceeding is pending for, recovery of possession under any of the grounds referred to in Section 13, then Section 17(1) specifically provides that the tenant may make payment direct to the landlord. This will no longer amount to a waiver. Of course, if the amount has been paid in terms of Section 17, then the question of waiver is no longer important, in the case of a suit for possession on the ground of default, because the tenant would then be protected under Sub-section (4) of Section 17. But the question of waiver is still important if the tenant does not comply with the terms of Section 17(1) in the case of a suit for recovery of possession on a ground other than that of default. In my opinion, the scheme of the present Act seems to be quite simple. Under the said Act, a landlord cannot bring a suit for recovery of possession except on grounds mentioned in Section 13(1), and if it is on the ground of default, unless such a default has occurred as is prescribed therein. Even when such a default has occurred, the landlord might waive the default by accepting the payment of rent after the default. But, otherwise, the tenant may tender the rent to the landlord and if he refuses to accept, the tenant may deposit it with the Rent Controller. If he does so, in accordance with the law, it amounts to a payment to the landlord. The landlord can withdraw the rent so deposited, without any fear of admission of waiver, except in the case of default. These are the general provisions. Then there are specific provisions which are applicable when a suit or proceeding has been filed in Court for recovery of possession. Section 17 deals with that specific case. It lays down that, when a suit or proceeding has been instituted by the landlord for recovery of possession, which of course, can only be done if it comes within any of the grounds in Section 13(1), then the tenant, if he wishes to have protection from eviction, has to take certain steps. If it is a suit for recovery of possession on the ground of default, then he would have to make two kinds of payment, which are as follows:

(a) Payment of arrears.

He will have to deposit in Court or pay to the landlord the arrears calculated at the rate of rent at which it was last paid, for the period for which he may have made default, including me period subsequent thereto, upto the end of the month previous to that in which the deposit or payment was made, together with interest on such amount calculated at the rate of 8 1/3 per cent per annum, from the date when such amount was payable, upto the date of depcsit. This amount has to be deposited or paid as the case may be, within one month of the service of the writ of summons on tne tenant defendant.

(b) Payment of current rent.

The tenant must deposit or pay to the landlord month by month by the 15th of each succeeding month, a sum equivalent to the rent at the same rate.

27. Under Sub-section (2), if there is any dispute about the payment of rent by the tenant, he may deposit in Court the rent admitted by him and also apply for the determination of the rent payable. The Court will thereupon proceed to determine the rent which is to be deposited or paid as provided therein. It is only if these amounts are deposited or paid within the time afoiesaid, that the tenant can get protection against eviction, in case of default in the payment of rent which would justify a decree or order for recovery of possession under Section 13(1). Although these specific provisions have been made, as to what steps the tenant should take for getting protection in cases where a suit or proceeding has been filed in Court for recovery of possession it is argued that the general provisions of Section 21 are not abrogated and that it is still open to the tenant to go on depositing the rent with the Rent Controller, and receive protection. The question to be decided is as to whether this view is correct.

At this stage it will be convenient to deal with case law on the subject. I have already mentioned that the decisions are prolific and conflicting. It will only be possible to deal with the leading ones. The first to be cited is a decision of Renupada Mukherjee, J. 61 Cal WN 890. The facts in that case were at follows: A suit was filed by the landlord against the tenant for eviction on the ground that the premises were reasonably required for her own use and occupation. The tenant defendant appeared and contested the case. The Summons was served upon the defendant on the 15th May, 1956. The rent was payable according to the Bengali Calendar month. After the service of summons, the tenant deposited rent twice with the Kent Controller, namely rent for the months of Baisakh and Jaistha 1363 B.S. These rents were deposited within the 15th day of the succeeding month. The rent for Ashar 1363 B.S. was deposited in the trial Court, but after the expiry of the statutory period for making deposit. The landlord made an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 for striking out the defence of the tenant. The learned Munsif rejected the application, and thereafter an application was made in revision to this High Court. The learned Judges held that Section 17 recognised two modes of payment namely, deposit in Court or payment to the landlord. Therefore, if a deposit is made in accordance with the provisions of Sub-section (3) of Section 22, with the Kent Controller, it must be taken as equivalent to payment to the landlord. Therefore, Mukherjee, J. held that the rent for the months of Baisakh and Jaisthha 1363 B.S. should be deemed to have been paid to the landlord. The learned Judge however held that the payment for Ashar was not made within time, and the learned Munsif who extended the time for payment, had no jurisdiction to dc s'. In the result therefor', the defence of the tenant WHS struck out. The reason why, according to the learned Judge, the tenant could still deposit with the Rent Controller after the filing of a suit, and the service of a writ of summons, was that after the filing of an ejectment suit, the feelings between the parties might get strained and it was not to be expected that the landlord would be willing to accept rent amicably. In these circumstances the tenant might deposit the rent with the Rent Controller, with respect I say that this reasoning is manifestly erroneous. If the landlord does not accept payment, there is a provision in Section 17(1) itself, namely, a deposit in Court

The next case is also that of a single Judge, Guha Ray, J. and is reported in the same volume 61 Cal WN 893. The learned Judge differed from the decision of Mukherjee, J. The learned Judge held that the provisions of Chapter IV of the West Bengal Premises Tenancy Act, 1956 lay down the circumstances and the modes in which rents might be deposited with the Rent Controller where there is no suit or proceeding pending between the landlord and the tenant, for recovery of possession. Where a suit is pending, Section 17 becomes applicable, and deposits or payments to the landlord must be made according to the requirements of that section. In that case, the suits were filed on the 4th January. 1957 and summons were served on the 15th February, 1957. The tenant deposited with the Rent Controller the rent for February, 1957 on the 12th March, 1957, for March, 1957 on the 11th April, 1957 and for April, 1957 on the 10th May, 1957. Thereafter, rents were deposited in Court. It was held that the deposits with the Rent Controller could neither be taken as a deposit in Court, nor payment to the landlord, and the defence must be struck out under Section 17(3). One of the grounds relied upon by the learned Judge was that a deposit under Section 17(1) of the said Act was not a deposit of 'rent', but a deposit of an amount equivalent to the rent at which it was last paid and, therefore, the operation of Chapter IV of the Act which deals with deposit of rent was not attracted. The learned Judge said aa follows:

'Section 17 is obviously in the nature of a special provision applicable only to cases where there is a suit for ejectment on grounds mentioned in Section 13 and it must accordingly in such cases take precedence over the provisions in Chapter IV even when the conditions for the application of that chapter exist. The provisions of Chapter IV which lay down the circumstances and the modes in which rent may be deposited with the Rent Controller are meant to cover all caSeS where there is no suit between the landlord and the tenant and where Section 17 has no application. Consequently, when there is suit to which Section 17 applies, deposits or payments must be made according to the requirements of that section and not in accordance with the rules in Chapter IV, even if the deposits could otherwise be made under these rules.'

28. The next case to be decided (sic) is a decision o a Division Bench of this Court presided over by K. C. Das Gupta, J. : AIR1958Cal593 . The facts in that case were as follows: On the 25th July, 1956 a suit was filed by the landlord against the tenant for recovery of possession on the ground that the landlord required the same for his own use and occupation. The summons was served on the nth August, 1956. On the 24th August, 1956 the tenant appeared and on the 18th September, 1956, filed his written statement. Even after the service of the writ of summons, the tenant went on depositing the rent with the Rent Controller under the provisions of Section 21 of the said Act. On the 4th December, 1956 the landlord made an application under Section 17(3) of the said Act for striking out the defence ot the tenant. The learned Mnnsif held that the deposit of rent before the Rent Controller amounted in law to payment to the landlord within the meaning of Section 17. In this view, he rejected the apnlication. Against that order the landlord made an application in revision. Das Gupta, J. had before him the two conflicting decisions mentioned above. He accepted the decision of Guha Ray J., as correct. The learned Judge also relied on the fact that in Section 17(1) what was mentioned was not a deposit of 'rent', but deposit of an amount calculated at the rate of rent ar which it was last paid. The learned Judge said as follows:.

'Obviousy, this choice of language by the legislature in Section 17(1) was deliberate. The difference of payment of an amount as rent and payment of an amount equivalent to rent is well known. When an amount is paid as rent, it will, in many circumstances, have the legal consequence of any previous' notice or default being waived and of the acknowledgment of a tenancy being continued, or being created. When a similar amount is paid and received not as rent but purely as a sura of money, there is no chance of these legal consequences' as regards waiver coming into existence.'

29. Although the learned Judge mentioned this ground, he said that he would hesitate to base his decision on this distinction alone. He held that on a closer examination of the provisions of Section 17, it was clear to him that the whole purpose and object of the provisions of that section would be frustrated if a deposit under Section 21 be held to mean a payment of rent to the landlord within the meaning of Section 17. He pointed out that under Section 17, no distinction is made between cases where there was a contract in writing fixing a day for payment of rent and cases where there was no such contract. In all cases, where a suit has been instituted by the landlord on any of the grounds referred to in Section 13 the deposit shall be made in respect of the arrears for which there was default within a month of the service of the writ of summons and the tenant must continue to deposit or pay month by month by the 15th day of each succeeding month, a sum equivalent to the rent at the rate at which it was last paid. These are not in conformity with the provisions of Section 21 to 22. The learned Judge said ag follows:

'What happens to this requirement if instead of deposit in Court by the 15th or payment to the landlord by the 15th, a deposit is made under the provisions of Chapter IV, Sub-section (1) of Section 22, which I have already set out, provides that in order to be a valid deposit, the amount has to be deposited within fifteen days of the time fixed by the contract in writing and in the absence of such contract in writing, within the last day of the month following that for which the rent was payable? Deposit in the Rent Controller's office will be a valid deposit, in a case where there is no contract in writing as regards the date of payment, if paid within the last day of the month following that for which the rent was payable, that is, 13, or 14 or 15 or 15 days after the fifteenth day of the succeeding month. In spite of this, the effect of Sub-section (3) would be that the rent would be deemed to have been paid on the 15th day of the month next following that for which the rent is payable. Thus, a notional payment on the 15th of the succeeding month would have to be taken as sufficient compliance with the stringent requirement of Section 17(1) that the payment must be made by the 15th of each succeeding month.'

30. The learned Judge said that he was unable to persuade himself that the legislature having laid down a definite period for payment in Section 17 would still have contemplated that the payment within a different period as provided for in Section 22 would still satisfy its Conditions. The result was that an order was made striking out the defence.

31. The next case to be considered is also that of a Division Bench of this High Court, 64 Cal WN 880. In that case the facts were 'as follows: The landlord instituted a suit for ejectment on 9th May, 1958. The writ of summons was served on the tenant on the 4th June, 1958. The tenant deposited the rent for May, 1958 with the Rent Controller on 10th June, 1958. As there was no contract to the contrary, monthly rent, was payable by the 15th day of tbe succeeding month, according to Section 4(2) of the West Bengal Premises Tenancy Act, 1956. Prior to this, the tenant had been depositing the rent regularly with the Rent Controller. All rents beginning from the rent of June, 1958 were deposited month by month in Court. The landlord made an application under Section 17(3) for striking out the defence of the tenant, and the only deposit that was questioned was that for the month of May. The trial Court allowed the application and struck out the defence. From this order there was an application in revision to the High Court. Renupada Mukherjee J., who presided over the Bench, noted that there had arisen a conflict of decisions of this Court, upon the point in issue, but that there was a distinguishing feature in that case, upon which it could be decided. Section 17(1), according to the learned Judge, contemplated three kinds of payments after the institution of a suit. The first kind related to an amount which was to be deposited or paid for a period during which the tenant had made default. The payment for May had been made within the 15th day of the next following month and therefore, there was no default. Hence, the provisions of Section 17(1) were not attracted at all. Banerjee J., however, went further. He did n t agree with the previous decisions which distinguished the deposit or payment to be made under Section 17(1), not as rent but as an amount equivalent to rent. He pointed out that if it was not rent, then if the snit failed, the tenant would be in default, and thus loose protection. The learned Judge considered the conflicting decisions and was inclined to the view that the deposit with the Kent Controller was equivalent to the payment of rent to the landlord. However, he concluded by saying that he was not concerned in that particular case with such conflict, because the case before him could be, disposed of on a point not involved in such conflicting decisions, namely, that the payment concerned was not of any rent for which the tenant was in default and consequently the provisions of Section 17(1) were not attracted. The learned Judges held that the application under Section 17(3) was not maintainable. This decision is understandable on the footing that Section 17(1) contemplates a deposit in Court of the amount in default, within a month from the date of the service of summons, and if there is no amount in default, then this provision does not come into play at all. In other words, if even after the service of the writ of summons there is still time to deposit the arrears of rent with the Rent Controller within the grace period of one month, without there being any default, then there is nothing to prevent the tenant from doing so. In such a case, he is only called upon to pay the growing rent thereafter, within the 15th day of each succeeding month.

The next case to be considered is another bench decision of the Court, presided over bv Sen, J., 64 Cal WN 689. In that case, the facts were as follows: The tenancy commenced from the 15th September, 1956. From the start, there was trouble over the payment of rent. From the 15th December, 1956 the tenant had been regularly depositing the rent, with the Rent Controller upto the month ending September 14, 1957. The writ of summons was served on the tenant on the nth October, 1957. On the very next day, after the service of the writ of summons, i.e., on the 12th October, 1957 the tenant deposited with the Rent Controller, rent for the period 15th September, 1957 to 14th October, 1957. Then, on the 7th November, 1957 he deposited rent from 15th October, 1957 to 14th November, 1957 also with the Rent Controller. On the 9th November, 1957, i.e., on the 28th day after service of summons the tenant deposited rent from 15th September, 1956 to 14th December, 1956, amounting to Rs. 1800/- in Court. On the 11th November, 1957 he deposited interest on the said sum calculated at the rate of 8 1/3 per cent, upto the date of deposit, amounting to Rs. 144/-. The landlord made an application under Section 17(3) for striking out the defence. The position was a peculiar one. The writ of summons was served on the 11th October, 1957. On that date he was certainly in default in payment of rent. He had only started depositing rent with the Rent Controller from 15th December, 1956 so that rent for three months, from 15th September, 1056 to 14th December, 1956 was in arrears. Therefore, in accordance with Section 17(1) he was to deposit in Court within one month from the date of the service of summons the said arrears together with an amount equivalent to rent calculated upto the end of the month previous to that in which the deposit or payment was made, together with interest. So far as the arrears are concerned for the three months from 15th September, 1956 to 14th December, 1956 these were deposited in Court within one month. But together with it, the tenant did not deposit an amount equivalent to rent for September/October and October/November 1957, which amounts he had deposited with the Rent Controller after the writ of summons had been served upon him. Sen J., held that this was quite in order because at the time the arrears were deposited, these had already been deposited with the Rent Controller and were not due. In my opinion, this case was wrongly decided. Where on the date when the writ of summons was served, there is no amount for which there is defa It, it may be argued that the first part of Section 17(1) does not come into operation and payment into Court will commence under the second part, namely, on the 15th day of each succeeding month after the expiry of the first month. But where there is a default on the date when the writ of summons is served, it is not permissible to deposit an amount equivalent to the defaulted amount into Court, and deposit the amount equivalent to the rent subsequent thereto upto the end of the month previous to that in which the deposit or payment is made, with Rent Controller. The first part of Section 17(1) requires that the amount to be deposited in Court, should not only be the amount equivalent to the rent in default but also 'includes' the latter amount. The words used are 'including the period''. The two payments cannot, therefore, be treated separately. I could have understood the position if the latter amount had been deposited with the Rent Controller before the writ of summons was served. It could then have been said that the amount was not in arrears on the date of the service of the writ, although an earlier amount was still in arrears. That was, however, not the case.

Before concluding with the decided cases, I must point out that the learned Advocate appearing on behalf of the petitioner has rightly pointed out that in the instant case, we are not concerned with payments in respect of the first part of Section 17(1) but with the second part of it. Adbul Majid's case, : AIR1958Cal593 (Supra) certainly covers this eventuality, whereas the other rases purport to deal with deposits in respect of the first part of Section 17(1). He has rightly argued that even assuming that something can be said in favour of a tenant depositing the amount referred to in the first part of Section 17(1) with the Kent Controller, where there was no default in payment, upon the day when the writ of summons was served or within a month thereof there is no excuse at ail for malting such deposits under the second part of Section 17(1). It is clear that these payments must be deposited in Court in order to get protection and to bar the application under Section 17(3). In reality, there are two extreme views namely-(1) that after the filing of a suit or proceeding for recovery of possession, no amount can be deposited with the Rent Controller at all but must be deposited in Court or paid to the landlord and (2) that notwithstanding the filing of a suit or proceeding in Court for the recovery of possession the tenant has an option of either depositing the amount in Court or depositing the same with the Rent Controller. Neither view is strictly correct, but that the latter view cannot possibly be correct will appear from the grounds mentioned below:

(1) The scheme ot Sections 21 and 22 is entirely different from that of Section 17.

(2) Sections 21 and 22 unlike Section 17 appear under Chapter IV which is headed -- 'deposit of rent'. Section 17(1) deliberately avoids the expression 'payment of rent' but speaks about the payment of an amount calculated at the rate of rent at which it was last paid. In Abdul Majid's case, : AIR1958Cal593 (Supra) this distinction was pointed out for the first time. This point of view has not been approved in subsequent decisions, and although Banerjee, J. in Rarapher Jaiswal's case, 64 Cal WN 880 (Supra) did not base his decis'on on this ground, he did not agree with the view expressed by Das Gupta, J. He reasoned that if the amount that is deposited and/or paid under Section 17(1) be not rent, then if the suit was later on dismissed for some technical reasons, the tenant would be in default and would lose protection. The reasoning is that such a deposit or payment has only the ertect of preventing the landlord from getting a decree or order for possession in that particular suit or proceeding which he has brought. But if the proceeding fails, then the tenant gets no protection. In my opinion, this is going a little too far. It is true that upon a suit or proceeding being instituted by the landlord for recovery of possession, compliance with Sub-sections (i) and (2) of Section 17 attracts the protection mentioned in Sub-section (4) and precludes the penalty, in Sub-section (3). It could however never been contemplated that the protection was merely confined to that particular suit or proceeding, and that in order to get absolute protection, the tenant would have to deposit in Court as well as go on depositing, rent for the same period with the Rent Controller. This interpretat on would lead to an absurd situation, and ought not to be permitted. As long as a suit or proceeding is pending, the provisions of Section 17 apply, whether it ultimately succeeds or fails. If the suit or proceeding terminates otherwise than as provided far in Sub-section (4) of Section 17, then at once the general provisions of Sections 21 and 22 come into operation once again. But it cannot be said then, that there has been a default during the period for which the suit or proceeding was pending. As I have stated during the introductory part of my judgment, the provisions ol the Rent Control Acts should be interpreted reasonably and not too literally so as to defeat the objects of the Act. Another objection to the view of Das Gupta, J. which was sought to be made before us is that in Sub-section (2) of Section 17 which was introduced by an amendment in 1959, it is provided that if there is a dispute as to the amount of rent payable by the tenant then the Court may be called upon to determine the 'rent payable'. It is argued that if the amount to be deposited or paid under Section 17(1) was not the rent, then it was meaningless for the Court to determine the amount of rent payable. In my opinion, there is no substance in this argument. Whereas, under Section 17(1) the amount to be deposited or paid is not rent but an amount equivalent to the rent, it is clear that the determination by the Court must necessarily be of the amount of rent payable, from which will follow the amount equivalent to the rent. It would be fatuous to ask the Court to determine an amount equivalent to rent and not the rent. The reason why the legislature has not deliberately used the word 'rent' in Section 17(1). but the words -- 'amount calculated at the rate of rent' is to avoid certain undesirable consequences which may arise in compelling the parties at that stage to admit that what is deposited or paid is 'rent'. There is a controversy with regard to the character of the money paid by a tenant to his landlord after the institution of a suit for his eviction. In some cases, it has been held that such payment, if made by way of rent and accepted as such amounts to a fresh tenancy or as 'holding over' by the tenant of the previous tenancy. Under Sections 112 and 113 of the Transfer of Property Act, acceptance of rent after the determination of the tenancy operates as a waiver. It is true that the position, under the Rent Control Acts is a little different, because even after the determination of the tenancy, the tenant continues to be a tenant in the eyes of the law, and what is payable is still rent and not damages until there is a decree for possession. However, there are these difficulties and, it was doubtlessly left that if the word 'rent', was used it would make the parties hesitant to work out the provisions of Section 17(1). That is why. instead of the word 'rent' the expression used is 'an amount calculated at the rate of rent'. Since it was contemplated that landlords should be out in a position to receive the amount of rent while the suit or proceeding vote pending, the statute was so worded that landlords could accept the amount paid without any apprehension. It 'was however, never contemplated that the deposit or payment of rent under Sections 21 and 22 would be an alternative method to deposit or payment under Section 17, even while a suit or proceeding for recovery of possess on was pending.

(3) Section 22 speaks of deposit of rent for the purposes of Clause (i) of Sub-section (i) of Section 13, whereas the deposit or payment under Section 17(1) nay be on any of the grounds mentioned in Section 13(1). Thus the two do not cover the same field of operation.

(4) For purposes of the Act, the position of the landlord, in accepting payment from the tenant before the filing of a suit or proceeding, and after the filing of a suit or proceeding are entirely different. For example, it is stated in Section 24 that, where no proceeding was pending in Court for the recovery of possession, the acceptance of rent by the landlord for the period of default would operate as a waiver. Section 17 deals with the position wheie a suit or proceeding has been instituted in Court. Therefore in such cases. Section 24 would have no operation. It is clear therefore, that the Act did not contemplate that the same procedure should operate when a suit or proceeding is pending in Court and when no such suit or proceeding is pending.

(5) The time-limit for making a deposit under Section 22 is entirely different to that of Section 17. Under Section 22, the time-limit for deposit is different in different cases depending on the existence of a contract or otherwise. If a contract existed, providing for the date of payment of the rent, that it is obvious that the time limit would be different under different contracts. Under Section 17(1) however, the time-limit for payment has been fixed and does not depend upon the contract between the parties. In fact, the time limit is fixed by the statute itself and cannot vary. This distinction was felt to be of some importance in Abdul Majid's case, : AIR1958Cal593 (supra).

(6) Under Section 22, the amount to be deposited is the amount of rent at the time of the deposit, whereas under Section 17(1) the amount to be deposited or paid is an amount equivalent to an amount calculated at the rate of rent at which it was last paid. This makes a great difference. For example, let us imagine a case where the rent is progressive, increasing from month to month. Under Section 22, the actual rent must be deposited whereas under Section 17(1) it will have to be calculated at the rate at which it was last paid.

(7) The validity cf a deposit under Section 22 is a conditional one. Together with the application for deposit the tenant has to make an application supported by an affidavit. If the tenant makes a false statement In the affidavit, either wilfully or negligently, the deposit is not a valid one, except in the case where the landlord has withdrawn the amount. This restriction does not apply to deposits or payments under Section 17(1) or 17(2).

(8) In case of a deposit under Section 22, Sub-section (3) of Section 22 provides that the deposit was to constitute payment of rent to the landlord, as if the amount deposited had been tendered to the landlord on the date fixed by the contract for payment of rent or in the absence of any contract, on the 15th day of the succeeding month. This is not the effect of a deposit or payment under Section 17. There, particular dates for deposit or payment have beer, laid down and if the deposit or payment has been made in compliance with it, no decree or order for possess-on can be passed. Let us take an example. Supposing that there is a contract by which the parties agree that the rent for January should be paid by the 2oth February. Under Section 22, if the rent is deposited with the Rent Controller within the 7th of March, then it is a valid deposit and it will be deemed as if the payment had been made on the 2oth February. Coming to Section 17(1), if it is a payment under the latter part of that sub-section, the amount will have to be deposited or paid by the 15th February irrespective of the date of the contract. It is obvious that in working out these provisions we cannot take the forum of payment from one section and the time-limit from another.

(9) Under Sub-section (6) of Section 21, rent deposited with the Rent Controller which is not withdrawn by the landlord within a specified time, is liable to be forfeited. Where it relates to a deposit when no legal proceeding is pending, this is understandable because if the landlord is not diligent he must suffer for it. But the same consideration cannot apply when a legal proceeding is pending. In the latter case, it may be that the time-limit has expired, but not for any default on the part of the landlord. It may be that in spite of his best efforts the suit or proceeding could not be brought to a conclusion. Therefore, it could not have been contemplated that when a suit or proceeding is pend'ng in Court, the provisions of Section 22 can still have application.

32. In my opinion, the position in law may be summarised as follows:

1. The West Bengal Premises Tenancy Act 1958, provides for protection of tenants from eviction by their landlords. It is however not a provision for penalising landlords, and some of its provisions are actually calculated to improve their existing position under the Rent Control Statutes.

2. Notwithstanding anything to the contrary in any other law, no landlord can obtain a decree or order against, a tenant for the recovery of possession of any premises, except on one or more of the grounds set out in Section 13 of the said Act.

3. One of such grounds is that the tenant has made a default in the payment of rent in terms of Clause (i) of Sub-section (i) of Section 13.

4. Where the landlord does not accept any lent tendered within the time allowed under Section 4, or where here is a bona fide doubt as to the person or persons to whom the rent is payable, he may deposit the rent with the Rent Controller as provided for in Section 21. If the rent is deposited in accordance with such provision, and within the time prescribed by Section 23, then it will constitute payment of rent to the landlord and there will be no default on the part of the tenant.

5. Such deposits can only be made if there is no suit or proceeding instituted by the landlord for recovery of possession. Where, however, such a suit or proceeding has been instituted on any of the grounds mention d in Section 13, and the tenant has been served with the writ of summons, he must deposit in Court or pay to the landlord directly an amount calculated at the rate of rent last paid, together with interest in accordance with the provisions of Section 17(1) of the said Act.

6. Section 17(1) contemplates three kinds of deposits or payments, as follows:

Period and nature of duesAmount to be paid and manner of payment

(i) For the period for which the tenant may have been indefault.

An amount equivalent to the rent last paid for period (i)and

(ii) For the period subsequent thereto, upto the end ofthe month previous to that in which the deposit or payment is made.

(ii) together with interest at the rate of 8 1/3% p. a.from the date when the amount was payable, upto the data of deposit orpayment must be deposited in court or paid directly to the landlord, withinonemonth of the service of the writ of summons.

(iii) For the period subsequent to (i) and (ii)

An amount equivalent to the rent last paid, to bedeposited in Court, or paid to the landlord direct, by the fifteenth day ofeach succeeding month.

7. Deposit of rent with the Rent Controller, prior to the service of the writ of summons, in accordance with the provisions of Sections 21 and 22 is perfectly valid.

8. After a writ of summons is served, one month's time is given to the tenant to pay up the amount in default. If there was no default on the date when the writ of summons was served and if any amount can be deposited with the Rent Controller within one month thereafter, without there being any default, such deposit would be valid. But if there is any amount in default on the date when the writ of summons is served, it most be deposited in Court together with the amount in arrears upto the end of the month previous to that in which the deposit or payment was made, with interest. In such a case, the latter amount cannot be split up and deposited with the Rent Controller.

9. All other amounts required to be deposited or paid under Section 17 must be deposited in Court or paid to the landlord directly, within the fifteenth day of each succeeding month.

10. Where a suit or proceeding is filed for recovery of possessions by the landlord on any of the grounds mentioned in Section 13 and there is any dispute as to the amount of rent payable by the tenant, he must follow the provisions of Subsection (2) of Section 17 by making the deposit in Court of the admitted amount and making an application for determination of the amount payable, and the Court will follow the procedure laid down in Clauses (a) and (b) of Sub-section 2 of Section 17.

11. Receipt by the landlord of the amounts which the tenant is entitled to pay under Section 17 after the institution of a suit or proceeding for recovery of possession will not amount to waiver, nor will it create a fresh tenancy.

12. If a tenant makes payment or deposit in terms of Section 17, he can never be said to be in default of payment of rent, lor the period for which such payment or deposit has been made, irrespective of the results of such suit or proceeding. Where, however, such a suit or proceeding terminates and no decree or order for recovery of possession has been made, the tenant's right to deposit rent with the Rent Controller under Ch. IV, revives, as also his liability for default if such deposits are not mad .

33. Let us now apply the above principles to the facts of the present case. In the present case, the. writ of summons was served on the tenant on the 30th October, 1960. On that date, he was not in default and under Section 4 the rent for October 1960, was payable by the 15th November, so that the deposit for the rent for October with the Rent Controller on the 9th. November, 1960. was quite in order. One month's time expired on 30th November, 1960. The deposits made on 14th December, 1960, and nth January 1961, with the Rent Controller were not made in accordance with the provisions of Section 17 (See Section 17 (1) and item 6 (iii) of the summary above). Therefore, the tenant fell within the mischief of Sub-section (3) of Section 17 and his defence was rightly struck out. A point was incidentally mentioned in course of argument but not much was heard about it. I may however give it a passing mention. As an argument against holding that Section 17 (1) did not exclude the right of the tenant in depositing the rent with the Rent Controller even where he was served with a writ of summons, it was said that a tenant who denied tenancy tinder the plaintiff would, in that case be without a remedy. I do not think that this is so. Sub-section (2) of Section 17 provides for an immediate adjudication by the Court of the amount of rent, before the defendant tenant is called upon to make a deposit in Court. If he denies the tenancy, he may claim that the amount was 'nil', not being payable at all. Then the Court would have to decide that issue, otherwise it cannot determine the 'amount of rent' payable. I confess that the language used is inartistic, but as stated at the inception, Rent Control Acts must be interpreted reasonably and not literally. They should be interpreted so as give effect to the objects of the statute and not to defeat them.

34. For the reasons aforesaid, this application fails and should be dismissed. The Rule should be discharged.

P.N. Mookerjee, J.

35. I agree with my Lord Bachawat, J., that this Reference should be answered by making the Rule, out of which it arises, absolute upon the view inter alia that the petitioner tenant's deposits with the Rent Controller of the rents for November and December, 1960, were valid deposits, constituting due payment, in law, of the said rents to the landlord opposite party under Section 17 (1) of the West Bengal Premises Tenancy Act, 1956, so as to put him, the tenant, outside the mischief of Section 17 (3), which would have otherwise justified the striking out of his defence against delivery of possession under the said sub-section. I am strongly of the view that Section 22 (3) would permit no other conclusion and there is nothing in the statute, which would militate against the same. The contrary view would lead to obvious difficulties and injustice in many cases and, as the statute does not compel it, but, expressly, -- at any rate, by plain, implication, -- forbids the same, the Court should not lean towards it. It will be opposed to the wordings of the statute itself and to all recognised rules of statutory construction and I can find no justification for departing from the same.

36. To turn, now, to the facts of the instant case. They are short and simple, however much they might have led to a complex legal problem. These facts are as follows:

37-42. (After stating the facts, the judgment continues as under: -) The point involved is simple, though it has now assumed a complexity due to acute divergence of judici I opinion. The earliest reported decision is of Eenupada Mukherjee, J., in the case of 61 Cal WN 890, where his Lordship held that a deposit with the Rent Controller in accordance with Section 22 of the Act was Sufficient for purposes of Section 17 (1) as payment to the landlord. In the next reported case, however, namely, 61 Cal WN 893, Guha Ray, J., also sitting singly, took the opposite view and expressly dissented from the aforesaid earlier decision. The point then came up before a Division Bench (Das Gupta and Law, JJ ,) in : AIR1958Cal593 (Supra), which agreed with Guha Ray, J., though hesitating to rely merely on the reason, given by the said 1earned Jndge for his view on the point and feeling the need of supplementing it by another reason. Subsequent reported decisions (Vide 64 Cal WN 689, 64 Cal WN 880 and Ram Prasad Karnani and Co. v. Champalal Sethia, 66 Cal WN 51 have purported to rest themselves on certain distinctions, which are more apparent than real, and, in all of them, there was a steady undercurrent, which ran counter to the Bench view in Abdul Majid's case, : AIR1958Cal593 (Supra).

43. In the above state of the authorities, the instant reference came to be made and, in the context, the best course would be to decide the point on the statute and the ruling principles of construction and, in the course of that decision or in the light thereof, to point out the infirmities of the opposite point of view. I would, therefore, proceed to the statute at once, bearing in mind the relevant rules of construction, which are so fundamental, so well known and so well established that no authorities need be cited for them.

44. Of the statute, the immediately relevant provisions are Sections 2 (h), (4), 17, 21 and 22 but reference may be necessary also to Sections 13 (1), 23 and 24. The first rule or canon of construction, to which I need refer, is the golden rule of construing a statute on its language, Unless the result be an absurdity or some inconvenience, which the statute did not contemplate. Words, again, in a statute should be given their plain meaning except to the extent that a different, that is, an extended or narrower, sense is dictated by the statute itself or, in other words, a statute should be construed in all its parts and on their wordings with an eye to their harmonious blending and smooth and cohesive working and such construction should not be made by reading ambiguities, where there are none, or finding difficulties, which are non-existent, or by altering their structure or contents by introducing or rejecting words for suiting particular constructions. For the above propositions or rules of interpretation, I do not think that citing of authorities will be necessary, as they are too obvious to admit of any controversy.

45. The petitioner, even if his contractual tenancy has been determined, as the opposite party claims, is, undoubtedly, continuing in possession after the said termination of his tenancy and, against him, no decree or order for possession has yet been made. He is, therefore, a tenant within the meaning of the Act (Vide Section 2 (h) ). He has, accordingly, the liability to pay the tent, agreed upon, namely, Rs. 37/- per month, payable according to the English Calendar, under Section 4 (1) of the Act, and, under Sub-section (2) of that Section 4, there being no contract, in the instant case, fixing the time for payment of rent, he (the tenant) has to pay it by (or within) the fifteenth day f the month next following the month, for which it is payable'. If he does So, he will not be in default in payment of rent; otherwise, of course, he will be a defaulter. This is the plain reading and plain consequence of the said Section 4. The tenant, however, cannot compel the landlord to accept the rent. The tenant, again, may have bona fide doubts as to who is his landlord. In such cases, the tenant cannot pay the rent or may not be able to pay it to the proper person or landlord. If, then, the statute had made no provision in that behalf, the tenant would have, for no fault of his own, become a defaulter and would have been liable to the consequences of default including ejectment (Vide Section 13 (1) (i) ). To remedy this, the legislature enacted Section 21, providing, inter alia, that, under such circumstances, the tenant can deposit the rent with the Rent Controller. For such deposits, certain conditions are prescribed in the said Section itself but the statute does not stop there and, in the following Section, namely, Section 22, (Vide Sub-section (i) ), it prescribes the time-limit for such deposit for inter alia subsection (3) of that Section (Section 22), so that the deposit of rent in question may 'constitute payment of rent to the landlord' under the said latter sub-section. To constitute such payment, the particular deposit must satisfy another condition, namely, that the tenant's relative application under Section 21 (2) of the Act should net contain any false statement and, if there be any such false statement, the deposit would not be valid and would not constitute payment to the landlord except where the landlord has withdrawn the same before the institution of a suit or proceeding for ejectment (Vide Section 22(3) read with Section 22 (2) ). If, however, the above conditions are satisfied, the deposit would constitute payment ot rent to the landlord on the footing of a corresponding deeming or fictional lender, deemed to have been validly made within the time, prescribed in Section 4.

46. If, now, we turn to Section 17, it will be seen that it purports to provide rel.ef to the tenant against eviction on the ground of default in payment of rent in certain cases and also subjects him to a very serious disability or adverse consequence, namely, the striking out of his defence against delivery of possession, in certain contingencies. To obtain the said relief or benefit and/or to avoid the said adverse consequence, the tenant has to 'deposit in Court or pay to the landlord' certain amounts with interest and certain amounts, month by month, within the respective times prescribed. The controversy centres round the three phrases 1) 'pay to the landlord', 2) 'an amount, calculated at the rate of rent at which it was last paid' and 3) 'a sum equivalent to rent at that rate'. If, pending suit, whether before or after service of summons, Section 22 (3), that is, the said Section, read with Section 2r and Sections 22(1) and 22(2), applies the deposit of rent with the Rent Controller in accordance with the said provisions would 'constitute payment of rent to the landlord' so as to satisfy prima facie the requirements or ingredients of all the above phrases. True, the statute nowhere provides for deposit of interest with the Rent Controller but the question of interest cannot arise, unless there is default in payment of rent, and, when such default occurs, which implies failure to pay or tender rent to the landlord 'within the time referred to in Section 4' (Vide Section 4 and Section 21 (1) ) and/or failure to deposit it with the Rent Controller' 'within the time mentioned in Section 22 (1)' (Vide Section 22 (3) ), no valid deposit can be made with the Rent Controller. Strictly speaking, then, when the tenant has committed default and is Table to pay the amount for the defaulted period and, necessarily, then, with interest, no deposit of the same can be made with the Rent Controller and the same has to be either deposited in Court or actually paid to the landlord or his agent to satisfy the requirements of the correspondent part of Section 17 (1), but, barring such cases of defaulter tenants, and the present case is not one of default --- I do not see why Section 22 (3) would not apply so that deposits ot rent, validly made, as contemplated thereunder, may 'constitute payment of rent to the landlord' and, if they do constitute such payment, why they would not be sufficient for purposes of Section 17 (1) of the Act. When, in Section 22 (3), the statute lays down that, under circumstances, mentioned therein, deposits of rent with the Rent Controller would 'constitute payment of rent to the landlord'', it would be ignoring the statute and its clear and express mandate to deny such deposits the said character, unless there be something, in the particular case, pointing to the contrary. It is argued before us that Section 17 (1) contains such contrary indication in that what is required to be paid thereunder is not rent but either 'an amount, calculated at the rate of rent, at which it was last paid -- which, relating, as it does, in its context, to defaulted rents, would not, strictly, as seen above be relevant for our present purpose -- or a sum equivalent to rent at that rate' and, accordingly, Sections 21 and 22 would not apply so as to permit its deposit with the Rent Controller and constitute such deposit 'payment of rent to the landlord' and, further, because Sections 21 and 22 would not apply, when a suit for eviction has been instituted, -- at any rate, when the summons therein has been served. Both the above contentions are fallacious and, however plausible at first sight, they are unacceptable, both on the terms of the statute and in view of the difficulties, which would follow from their acceptance.

47. Before, however, I proceed to examine the above contentions, I deem it necessary and convenient to set out Section 17, on which the same are sought to be founded, and analyse the same. That section runs as follows: -

* * * * (After quoting Section 17, judgment proceeds as follows:)

48. The Section, as I have said above, purports to confer certain benefits or protection upon the tenant on certain conditions but also subjects him to certain disabilities or liabilities or adverse consequences in cases of non-fulfilment of those conditions.

49. By Sub-section (1), it casts a duty upon the tenant, against whom a suit for eviction has been filed by the landlord on any of the grounds, referred to in Section 13:-

(a) to 'deposit in Court or pay to the landlord', within one month of the service of the summons an amount, calculated at the rate of rent, at which it was last paid, for the period, if any, of default, including the period, subsequent thereto, up to the end of the month, previous to that, in which the deposit or payment is made, together with interest as mentioned therein, and

(b) to continue to deposit or pay thereafter, month by month, by the 15th of the next succeeding month, a sum, equivalent to the rent at that rate.

50. Sub-section (2) provides for the determination of dispute as to the amount of reat, payable by the tenant. Under that sub-section, the tenant has to deposit in Court within the period, specified in Sub-section (1), his admitted dues together with an application to the Court for determination of the rent payable and it directs and empowers the Court to pass, in the first instance, as soon as possible, and not beyond a year, a preliminary order, specifying the amount, if any, payable by the tenant, which has to be deposited or paid, as above, within a month of the said order, and, as soon as possible thereafter, to pass a final order, determining the rate of rent and the amount, to be deposited in Court or paid to the landlord, after necessary adjustments, if any, and specifying the time for such deposit or payment.

51. Sub-section (3) then provides that the defference against ejectment will be struck out, if the tenant fails to deposit or pay any of the above amounts and Sub-section (4) relieves him, the tenant, from the penalty or liability of a decree for eviction on the ground of default in payment of rent in case of payment or deposit, as aforesaid except when he has made default in payment of rent for four months within a period of twelve months.

52. An analysis of tbe above Section thus clearly shows that, in a pending ejectment suit, the tenant has to deposit or pay in accordance with Sub-section (1) above, in the light, of course, where necessary, or the Court's determination and order under Sub-section (2), and, in case of default, his defence against ejectment is liable to be struck out and, in case of complance, ejectment on the ground of default will be refused, unless the tenant is a defaulter for four months within a period of twelve months. It is clear also that deposit or payment under (a) above will be necessary only when the tenant is a defaulter. Indeed no deposit under (a) for any period whatsoever will be necessary, if the tenant is not a defaulter. This is plainly evident, as the non-default period if any, under (a) is comprised within the phrase 'including the period subsequent thereto', which, on its very terms excludes its existence apart from and independently of a period of default. The question of payment or deposit under (a) will, therefore, arise only when the tenant is a defaulter and, ir. such a case, he will be required to pay or deposit interest also, as mentioned in Section 17 (1). It is true that, so far as the amount, payable under (a), is concerned, which must include payment or deposit for a period in default and interest, Section 21 -- and, obviously, then, Section 22 also -- will not apply inasmuch as, already seen above, for the period in default, no valid deposit can be made with the Rent Controller, nor is then; any provision for deposit of interest with him, but that is no ground for excluding the said Sections and for refusing to apply them to current payments or deposits under (b) above. To the extent, say, for example, as said above. Sections 21 and 22 do not apply to particular amounts, deposit of the same cannot constitute payment to the landlord under Section 22 (3) but, where the said Sections do apply. there is no reason why the deposit should not constitute such payment and satisfy the requirement of the phrase 'pay to the lardlord' within the meaning of Section 17 (1).

53. It thus becomes necessary to examine whether and, if so, to what extent, Sections 21 and 22 are excluded or curtailed by Section 17. As seen hereinbefore, to the amount, if any payable under (a) above, the said sections cart have no application. To that extent, they are excluded and their scope and operation is limited or curtailed. Indeed, this follows from the wordings of the Sections (Sections 21 and 22) themselves. It is to be seen now whether any further exclusion, curtailment or limitation of the said two Sections 21 and 22 is intended by the statute.

54. It is argued by Mr. Das Gupta that Section 17 excludes Sections 21 and 22, or, in other words, that, in applying Section 17, Sections 21 and 22 will have to be kept aside, and his submissions are as follows;

(i) That Sections 21 and 22 deal with deposit of rent but Section 17 is not concerned with, rent but only with 'an amount calculated at the rate of rent at which it was last paid' or 'a. sum equivalent to rent at that rate' and

(ii) that the institution of a suit (or proceeding) lor ejectment or, at any rate, the service of summons thereof, excludes Sections 21 and 22 and. suspends them so long as the suit (or proceeding) pends.

Of the above, the second submission seems to be more fundamental, as, obviously. if a deposit of rent with me Rent Controller constitutes payment of rent to the landlord, the tenant must be held to have paid to the landlord the rent, that is, 'an amount calculated at the rate at which rent was last paid' or 'a sum equivalent to rent at that rate', as rent is nothing but the amount, at which rent is paid or a sum equivalent to rent, so that, in such a case, the first submission would have no force or relevance and, whatever the answer to it, the requirements of Section 17 would be satisfied. Even so, 1 am satisfied that the said first submission also is untenable inasmuch as the amount or amounts, required to be paid or deposited under Section 17 (1), cannot but be rent in view of Sub-section (2) of Section 17 and Section 17 (4), including its proviso and the absurd or unreasonable consequences, which would otherwise follow. To this aspect, I shall return later, after I have dealt with the opposite party's more fundamental second submission.

55. Turning, then, to the second submission first, it is to be observed, in the first place, that the scope of Sections 21 and 22 and the conditions of their applicability are to be found in the said Sections themselves and have to be ascertained from them, unless some extraneous matter becomes pertinent for consideration, either by reason of something in the statute itself or in any other relevant material, compelling, requiring or justifying such consideration. In the instant case, barring the language of Sections 17 and 22 -- and, particularly, of the latter -- and Sections 13 and 23, nothing else has been relied on by the opposite party for whittling down the scope of Sections 21 and 22 and restricting them in matter, involved, in his aforesaid second submission. I shall examine, therefore, how far the said reliance is justified.

56. The language of the two Sections (Sections 21 and 22), whatever else it might show, does not suggest -- at any rate, it would not support -- limiting the said two Sections -- or, moreprecisely, Section 22 (3), with which we are immediately and directly concerned, -- to non-suit, pre-suit or pre-summons state. It is plain enough on the point and quite comprehensive, -- not containing, at any rate (Vide Section 22 (3) ) any express limitation. Reference, however, is made to Sub-section (6) of Section 21 and Sub-sections (i) and (2) of Section 22 to suggest an implied limitation. On Sub-section (6), it is argued that, if Section 21 applied to a suit stage, that Sub-section may compel the landlord to lose or forgo a considerable part of his rent or damages (mesne profits), as the landlord cannot, during the pendency of the suit for ejectment, withdraw the deposit of rent except at his risk, peril and prejudice (Vide, in particular, Section 23 in this connection, which I shall presently consider)' and may thus be compelled to incur forfeiture of the same under the said Sub-section (6), but this argument overlooks Sub-section (7) of Section 21, as the order of the Rent Controller, which, under the aforesaid Sub-section (6), is a necessary pre-requisite to the statutory forfeiture of the deposit thereunder, cannot be passed in view of the said Subsection (7), except after hearing the parties, and it is difficult to conceive that the Controller would direct forfeiture of the deposit on account of non-withdrawal, even where such non-withdrawal is because of and due to the pendency of the ejectment suit. This is apart from the question, which I shall presently discuss, whether Section 23 would cause any, or, any real, prejudice to the landlord in case of withdrawal of deposit during suit.

57. On Sub-sections (1) and (2) of Section 22, the simple answer is that, whatever the scope of the said two sub-sections, Sub-section (3) is wider and applies, on its language, to bath suit and Eon-suit stages. True, Sub-section (i) purports to fix the time-limit for valid deposits for purposes of Section 13 (1) (i), which, presumably, refers to a pre-suit stage, and Sub-section (2), also, in its last part, where it embodies the exception to the invalidity of the deposit, as referred to in its earlier part, speaks of a pre-suit or non-suit stags, but Sub-section (3) contains no such restriction or limitation. Under it, a deposit Of rent with the Rent Controller would 'constitute payment of rent to the landlord', if made within the time, prescribed in Sub-section (1) and if not invalid under Sub-section (2). Indeed, this Sub-section (Sub-section (3) of Section 22) prescribes the conditions for a deposit to constitute payment to the landlord and, for this purpose, it takes the time-limit from Sub-section (1) and emphasises and postulates, as a firm requis'te, the absence of any bar to its validity under Sub-section (2), and attaches those two additional conditions to a deposit, otherwise valid under Section 2r, as and by way of essential pre-requisites, to constitute payment to the landlord. That, in my view, is the true reading of Section 22 (3) and I find in it no warrant for restricting its scope and limiting it to non-suit or pre-suit stage by reason of the reference to the two earlier sub-sections. The purpose of the said reference I have fully explained above and it should not be enlarged or extended in the face of the clear language of the said Sub-section (3). To construe it, as I haye done, would be giving effect to its plain language and avoiding violence to the same without, at the same time, infringing the rule of harmoious construction of statutes and raising any conflict with the other two sub-sections of the same Section (Section 22) or any other part of the statute.

58. Indeed, the language o Section 22 (3) is clear enough on the point and it gives the said Sub-section a wider scope as above, no matter that it is part of the same section (Section 22) whose other two sub-sections are, as seen above, much narrower, this difference in scope being plainly dictated by the words, employed by the statnte, in the said several parts. As already explained by me, there is nothing in Section 22(3),--be it its language or structure or reference to the two earlier sub-sections, -- which will limit its scope to non-suit or pre-suit stage.

59. I would, therefore, hold that Section 22 (3) applies to all stages, suit, pre-suit and nonsuit, and the institution or pendency of a suit or proceeding tor ejectment does not limit or affect its operation or application.

60. The above analysis would lead to the following results: -

(1) That, if the conditions under Section 21 are satisfied, the deposit is a valid deposit under that Section but, if it does net satisfy the time-limit test under Section 22 (i) or is affected by the infirmity, mentioned in the first part of subsection (2), unrelieved or exempted that is to say not cured or remedied, under the latter part of that sub-section, it would not be a valid deposit for purposes of Section 13 (1) (i) or for purposes of Section 22 (3) either, however much it may be valid for other purposes. If, however, all the above conditions are satisfied, the deposit of rent would not Only be valid under Section 21 and for purposes of Section 13 (i) (i), but would also constitute payment to the landlord on the footing of a valid legal and timely tender under Section 4 of the Act. This, indeed, is the effect of subsection (3) of Section 22 and it is general in its terms, although it covers, within it, pre-suit stage also e. g., under Section 13 (i) (i).

61. While, on the above, it is important to notice that, where this particular statute intends that a particular effect or provision is to be confined to a particular state of things or a particular stage or point of tune, it expressly says so. Thus, Section 24 is expressly limited to a non-suit stage, the last part of Section 22 (2) is also similarly limited and Section 22 (1), so far as its own terms go, is clearly relevant only for purposes of Section 13 (1) (i). Judged by this test and in this context, Section 22 (3) is comprehensive enough to cover all stages, pre-suit, post-suit or otherwise.

62. Let us see, now, whether the above wide scope of Section 22 (3) is restricted or curtailed by anything in Section 17 and/or Section 23. The relevant part of Section 17 contains the words 'pay to the landlord' and, but for the phrase 'shall constitute payment (of rents) to the landlord' in it, Section 22 (3) would not have been relevant for purposes cf Section 17. If, however, those words of Section 22 (3) (Vide the phrase quoted) are to be given their natural meaning and effect. I do not see why they would not be the same as or equivalent to the corresponding words 'pay to the landlord' in Section 17 To pay to the landlord is to do something, which will constitute payment to him and vice versa. True, by doing something, which constitutes payment to the landlord, you may not always be actually paying him. or, in other words, it may not be a case of actual payment to the landlord but may well be only constructive payment or a deeming conception of payment but, when the statute says that a particular act will constitute payment to the landlord, it must be so regarded and given effect as such and the landlord must be deemed to have been paid except where nothing but an actual payment is contemplated (Vide e. g., Section 25, which as I shall show hereinafter, has this obvious implication). There is nothing in Section 17 or anywhere else in the statute to compel or even enable or entitle the Court to hold that the words 'pay to the landlord' in Section 17 (1) must contemplate direct or actual payment and exclude deposits of rent with the Rent Controller, which, the statute itself says (Vide Section 22 (3) ), would constitute payment to the landlord. In this respect, the said, section stands materially different from the aforesaid Section 25, where payment to the landlord, obviously, contemplates direct or actual payment, inasmuch as it entitles the tenant to demand ('obtain') 'forthwith' 'a written receipt' for such payment 'from the landlord or his authorised agent'. The idea of actual payment is thus inherent in the said Section 25 of the Act and this inherent conception or consequence necessarily excludes the idea of deposit, be it in Court or with the Rent Controller, from constituting payment to the landlord for the purposes of the said Section. Section 17, therefore, does not, militate against the view that Section 22 (3) has a wide and comprehensive application and is not restricted to any particular stage -- non-suit, pre-suit or pre-summons.

63. That Section 22 (3) cannot be restricted to a non-suit or pre-suit stage was, in a sense, conceded by Mr. Das Gupta, when it was pointed out to him that, after a suit for eviction has been instituted, summons may not be served for over four months and, during this period, the tenant, not knowing of the suit, may be depositing rents with the Rent Controller. In such a case, if the said Section does not apply because of the pending suit and since its institution, the said deposits would be invalid, leaving the tenant no option but to become a defaulter 'for four months within a period of twelve months' (Vide proviso to Section 17 (4) ) and thus compel him to lose the benefit of Section 17 without giving him any opportunity to comply with it and avail the same. Such an unreasonable construction is obviously unacceptable, when, as we have seen above, the statute does not compel it. Section 22 (3) contains no exception and permits no implication. It is plain in itsslf and, prima facie applies . to all stages -- suit, non-suit or otherwise -- and thus inter alia to cases, coming under Section 17, for purposes of the said Section too. Section 17 also contains nothing to rule out Section 22 (3). Why, then, would this benevolent provision be restricted by refusing to apply i; and the legislature's own dictionary, as contained in it, to cases under Section 17?

64. Realising the difficulty, Mr. Das Gupta sought to wriggle out of it by suggesting that the defaults under the proviso to Section 17 (4) meant pre-suit defaults so that the above situation would not arise. He relied in this connection upon the three decisions of this Court under the corresponding Section 14 (3), proviso, of the earlier 1950 Act in the cases of Amal Krishna Basn v. Chandi Charan, : AIR1953Cal145 , Pulin Behari v. Miss Lila Dey, : AIR1956Cal106 and Gopal Chandra Narayan v. Murari Mohan, 62 Cal WN 614, but, clearly, the said decisions, even if otherwise they would have been of help to Mr. Das Gupta, would not assist him, as the language in the new statute is materially different in that the significant words, qualifying the defaults under the said proviso to the old Section 14 (3), namely, 'in payment of the rent referred to in Clause (i) of Section 12, Sub-section (i)', or, any similar or corresponding or qualifying words, referring to pre-suit defaults, are absent in the new statute (Vide the proviso to Section 17 (4) of the 1956 Act). Even apart from that, if Mr. Das Gupta's contention be accepted, it would mean that in case of delayed service of summons, the tenant's defaults for the period between the filing of the suit and. the service of summons -- Whatever its length -- would not be available or actionable under Section 13 (1) (i) nor relevant Under the proviso to Section 17 (4), however much they might otherwise be within the mischief of Section 17 (1), which may be avoided by deposit, -- of course, with interest, --- within a month after service of summons. That, however, could not have been the intention of the statute, as, then, obviously, defaults during this period would have carried no serious consequence and would have been encouraged much against its Underlying policy, which seeks inter alia, to ensure regular payment of rent.

65. In the above situation, Mr. Das Gupta shifted his ground and contended that Section 22 (3) should be restricted, at least, to a pre-summons stage. I do not find, however, any justification for such a view on any known principle of construction Of statutes. Section 22 (3) contains no warrant for it. Sections 22 (1) and 22 (2), whatever support they might have given to the other argument of Mr. Das Gupta that Section 22 (3) applied only to a pre-suit or non-suit stage would give no support to this new argument. Section 17 also raises no necessary implication in that behalf, just as, as already seen, it does not contain any such implication to exclude Section 22 (3), immediately a suit for eviction is filed. If the legislature intended that Sections 21 and 22 (3) would not apply except at the non-suit, pre-suit or pre-summons stage and deposit of rent with the Rent Controller under and in accordaace with the provisions of the said Sections would not, in spite of Section 22 (3), 'constitute payment of rent to the landlord' during the pendency of the suit, or, at least after service of summons, it could have easily indicated it and provided for such limitation or restriction either in Section 17, say, by way of opposite 'Explanation', or, in Section 22 itself, by restricting its operation, by use of appropriate words therein, as it has done in the case of Section 24. The absence of any such limiting or restrictive provision is, in my view, strong evidence of a contrary intention.

66. There is another aspect of the matter, which also supports the view that Section 22 (3) cannot be restricted to a non-suit, pre-suit or even pre-summons stage. Take the case of a tenant, having bona fide doubt as to who is his landlord. Under Section 21, he is prima facie entitled, under such circumsances, -- of course, in accordance with its terms and provisions, -- to deposit rent with the Rent Controller, who is authorised to make over the money to the real claimant or the person, really entitled to it (Vide Section 21 (5) --and, indeed, is charged with the duty in that behalf -- subject to a final decision by 'a Court of competent jurisdiction.' -- presumably, the Civil Court on the claims of the rival claimants. One of the alleged landlords or claimants to the landlord's title low institutes a suit against the tenant on certain grounds under Section 13 (1) of the Act. What is the poor tenant to do in such a case in the matter of rents? If Sections 21 and 22 (3) have no application because of the pending suit, he cannot validly deposit rent with the Rent Controller after the institution of the suit and any such deposit, however timely and valid according to the said Sections, would not constitute payment to the landlord and he cannot by such deposits avoid the evil consequence of Section 17 (3). He cannot also actually pay to the landlord or his authorised agent as he has bona fide doubt as to who is his landlord. He may, no doubt, deposit the amount in Court ,-- say, to the credit of the Court, as he does not know whether the plaintiff is his landlord -- but, even then, he may not be safe, as. in the' event of the plaintiff not being his landlord and the rival claimant, -- who may not, normally, at least, -- and certainly, would not necessarily, -- be a party to the suit, -- being entitled to that status, the tenant would not, by his deposit in Court, avoid being a defaulter. To explain myself, some elaboration is necessary. The plaintiff who claims to be the landlord and has brought the ejectment suit, is not obliged to implead his rival claimant and would not, ordinarily, do so. The Court also cannot, -- at any rate, should not -- compel him to make his rival claimant a party to the suit and convert the ejectment suit into a full-fledged suit for title -- which by the way, is not favoured by law and is against its normal policy -- and the plaintiff may choose to take the risk of having his suit ultimately dismissed, if he cannot establish against the tenant his claim to the landlord's title. In such a case, the deposit cannot have any effect against the real landlord, the more so, as it cannot be paid to him, he not being a party to the suit. Even if the said rival claimant be or be made a party to the ejectment suit, he will be there -- not as plaintiff but either as a defendant or a pro forma defendant, and he cannot be compelled to become a plaintiff and claim ejectment. The deposit, then, will be in a suit, in which the landlord is not the plaintiff, and, in such a suit, it may be difficult to contend that Section 17 would apply. In that view, the deposit in Court would have no legal effect and would not save the tenant from being a defaulter vis-a-vis his real landlord and the said tenant would thus run the risk of ejectment at his hands, --- and even of the mischief of the proviso to Section 17 (4). -- in a suit by the said real landlord, for no fault of his own. It was suggested during discussion that Section 17 (2) of the Act provides inter alia for the above contingency and would meet the same and offer a way of escape to the tenant in the aforesaid circumstances. But I am not convinced. I am not quits sure whether Section 17(2), which speaks of -- and, thus, requires for its application. -- a dispute as to the rent, payable by the tenant, will apply, where the tenant has only a bona fide doubt as to who is his land-lord. Assume, however, that it applies. If the Court decides against the plaintiff under that Section, ail is well with the tenant and he will not be prejudiced. If, however, the Court decides in favour of the plaintiff, that decision will not be binding on the rival claimant, if he is not a party in the suit, and, even if he is a party, the decision at the Section 17 (2) stage may not be final, so far as he is concerned, and may be questioned later and the point of title may be re-opened and may he differently decided at the final hearing. It may also happen that the plaintiff, though not the real landlord, may succeed against the tenant at the Section 17 (2) stage and yet his suit may fail at the final hearing on some ground other than the absence of relationship of landlord and tenant. In such a case, the tenant would be left completely at the mercy of the real landlord without any chance of retrieving his position. I do not think that the statute ever intended to place an honest tenant in such a precarious position. True, that, in such a case, the tenant may save himself by making a double deposit of rent -- one in Court and another with the Kent Controller -- but that would impose such a burden on the tenant and would be so onerous, unjust and unreasonable that I would refuse tr. accept, in the absence of a clear and unmistakable indication in that behalf, that that was the intention of the statute. I find no such indication before me and, accordingly, I reject the suggestion.

67. Similar, indeed, would be the situation and the same result would follow from a consideration of cases, where the pendency or continuity of the ejectment suit or proceeding is interrupted by a break or temporary termination and then revived or re-established as a result of appeal or of an Order 9 Rule 13 or any similar proceeding under the Code. Further elaboration, however, is unnecessary on this particular aspect as it has been fully dealt with by my Lord Bachawat, J., and I would not prolong this discussion.

68. On the above view, I would reject Mr. Das Gupta's second submission and hold that Section 22 (3) applies, even where a suit for ejectment is pending and summons therein has been served, and permits the tenant to make deposits under that Section, which would const'tute 'payment to the landlord' for purposes of Section 7 (1) but, before I do so, it is necessary to notice and overrule two other objections, which have been urged against the above view.

69. The first of the above two objections is sought to be founded or Section 23. It is urged that, if deposit of rent with the Rent Controller were permitted during suit, the landlord would not be able to withdraw the same except at the risk of submitting to waiver of the notice to quit on the ground of default. That, it is said, would be nutting an unreasonable restraint on the landlord, it seems to me, however, that this proceeds upon a misreading of the Section (Section 23). The Section does not say, -- and this appears clear when it is closely and correctly lead, -- that such withdrawal would amount to any waiver. It provides for inter alia exceptions to waiver, arising on such withdrawal, though the exceptions are not full or absolute and do not extend to cases of notice to quit -- and that expression seems to have been used here in a broad and general sense and not in the technical sense (Vide my judgment delivered today, in the Special Bench Reference in F. A. No. 444 of 1961 and F. A's Nos. 101 and 102 of 1961 (Surya Properties Private Ltd. v. Bimalendra Nath, : AIR1964Cal1 (SB) ) -- on the ground of default. That only means that, where waiver of the notice is sought to be founded on withdrawal of rent from the Rent Controller and may otherwise succeed, no such plea would be allowed except in the case of a notice to quit -- as above explained -- on the ground of default. The section, then, imposes no new restraint on the landlord. It, or the other hand, relieves him from some restraints. In ether worlds, where, otherwise, the withdrawal would have amounted to waiver of all notices to quit, -- using the said expression in a general and not in the technical sense -- it would, in view of this Section, amount to waiver only of the notice to quit on the ground of default. In this view, the above objection cannot stand.

70. Even otherwise, Section 23, if it prevents the landlord from withdrawing the rent deposited except, at the risk of waiving the notice to quit on the ground of default, and assuming that it does so, it would not really prejudice the landlord save in cases where the tenant is a defaulter for four months so as to fall within the mischief of the proviso to Section 17 (4), as, in all other cases, the suit on the ground of default would be bound to fail under the main pad of the said Section. And, in the above excepted cases, which may not be many, it may well have been intended that the landlord would hold his hand until the ejectment suit was decided, which, normally, at least would or should not be long as the tenant's defence against delivery of possession would, in these cases, be struck out under the proviso to Section 17(4). It is to be remembered, further, that this objection, if good, would remain, even if the view be that Section 22 (3) is excluded only at the post-summons stage, as, on the above interpretation of Section 23, the landlord would still be prevented from withdrawing the rent, deposited between the institution of the suit and the service of summons, except at his risk, peril and prejudice, as aforesaid. That will, then, lead to the exclusion of Section 22 (3) at all post-suit stage, which as seen above, is attended with much graver consequences, and which, as noted hereinbefore, was not eventually pressed by Mr. Das Gupta.

71. I come now to one aspect of the problem before us, which, at first sight, appears to present some difficulty and uncertainty. This difficulty and uncertainty arises from the last part or the concluding lines of Section 22(3), where the fiction of a valid tender is introduced to supplement the theory of statutory payment to the landlord, as enacted in the earlier part. The situation here is somewhat complex and it is necessary -- and it will doubtless be convenient too, -- to set out the section (Section 22(3) ) for a proper, easy and immediate understanding of the true legal position in the present context. That Section, as the Statute shows, runs as follows: 'If the rent is deposited within the time mentioned in Sub-section (1), and does not cease to be a valid deposit for the reason mentioned in Sub-section (2), the deposit shall constitute payment of rent to the landlord as if the amount deposited has, been valid legal tender of rent if tendered to the landlord on the date fixed by the contract lor payment of rent when there is such a contract, or, in the absence of any contract, on the fifteenth day of the month next following that for which rent is payable.'

72. Under the Section, a deposit of rent, as contemplated under it, would constitute payment to the landlord on the footing, presumably, of a valid legal tender within the time, prescribed for payment in or under Section 4 of the Act. The words are not very clear -- either in their sense or from the grammatical point of view. It may well bo that the emphasis was intended on the amount as in the corresponding provision (old Section 20(3) ) of the preceding 1950 Act, but, possibly, necessity was felt for the fiction of a tender within the times mentioned, as, otherwise, -- at least, in cases of bona fide doubt, also covered by Section 21(1), -- the fictional payment by deposit with the Rent Controller, which may well be beyond the time or t.mes, prescribed for payment under Section 4, may not be preceded by a valid legal tender, as required by it. and may not thus be effective to avoid the consequences of default under that Section, thereby rendering Section 22(3) ineffective in those cases. The attempt in this behalf has, no doubt, been clumsily executed and the words employed are not as said above, clear, either in their sense or even grammatically. They, however, do not, in my opinion, mean anything more than this that, where the deposit is made within the time, contemplated in Section 22(3), read with Section 22(1), but beyond the time, mentioned in the last part of Section 22(3), the relative fictional tender would relate back to the said last-mentioned time for avoiding the adverse consequences of non-payment or non-deposit within the said time. It does not certainly mean that the effect of a payment --actual or fictional -- and the tender, which it obviously involves, implies and comprehends would be postponed. In other words, under the aforesaid section, the effect of a payment and the tender, which it necessarily involves, would not be postponed, although it may be advanced or accelerated by the tender, relating back to an earlier date. This, it is said, will enable and entitle the tenant, in certain cases, to make the deposit with the Rent Controller within the extended time, mentioned in Section 22 (Vide Subsection (i) as attracted to Sub-section (3) ), and to avoid the consequence of non-payment to the landlord and non-deposit in Court within the shorter period, namely, the 15th of the succeeding month, as mentioned in Section 17. That, contends Mr. Das Gupta, would encourage the tenant to disregard the shorter time-limit under Section 17(1) and renders the same nugatory. I do not think, however, that such would be the consequence. I do not think also that, even assuming that, in some cases, the effect would be as envisaged by Mr. Das Gupta in his above contention, that by itself, would be any sufficient ground for refusing to give Section 22(3) full effect and restricts its scope. It is true that, on such a view, the tenant, for purposes of Section 17 will have the liberty (Vide the second part of Section 17(1));

(1) of depositing in Court his current dues within the fiteenth of the next succeeding month,

(2) of paying the same to the landlord within the aforesaid time, and

(3) of depositing the said dues with the Rent Controller within the extended time, as aforesaid, under Section 22 of the Act.

73. But that may well be the policy of the law. A valid deposit with the Rent Controller must be preceded by the fulfilment of certain essential statutory conditions (Vide Sections 21 and 22) e.g. timely tender or bona fide doubt. For this, as also from practical considerations, the Legislature may have decided on a longer time for deposit with the Rent Controller. The longer period is certainly available for the formal deposits with the Rent Controller, that is, where, admittedly, such deposits can be validly made, say, for example, prior to suit, in circumstances, mentioned in Section 21 of the Act. Therefore, there must, be reason for it and the mere institution of a suit for ejectment would not necessarily affect the position. Besides, tender is not payment and it may very well be contended, from the scheme and structure of Section 17, that mere tender would not be, equivalent to payment for purposes of the said Section. The fiction of tender, then, and its date, linked by Section 22(3) with a deposit of rent, with the Rent Controller, will be irrelevant, so far as Section 17(1) is concerned, although, to the extent that the said deposit constitutes payment to the landlord under the said Section 22(3), it will be. relevant under Section 17(1) and, there, obviously, the date of the deposit will be the date, of payment. In that view, the deposit with the. ent Controller, however valid for other purposes, if made within the extended period under Section 22, will have to be made within the, shorter period of the fifteenth of the next succeeding month, as. required by Section 17(1) in its relevant part, for purposes of that Section. I would, therefore, hold that a valid deposit of rent with the Rent Controller under Section 31(3) of the Act within, at any rate, the fiteenth of the next succeeding month, will constitute payment of rent to the landlord for purposes of the second part of Section 17(1) and would satisfy the requirement of 'pay to the landlord' 'by the 15th of the next succeeding month' under that provision in terms of its said requirement and fully comply with all the requisites of the said part of the statute.

74. While on the above, I may also point out that if the fiction of accelerated tender as incorporated in Section 22(3) be inapplicable to cases under Section 17, the tenant may, in spite of payment or deposit within the 15th of the next succeeding month, as prescribed in Section 17(1), would be a defaulter and guilty of; default in payment of rent in view of Section 4(2), where, under the contract of tenancy, rent is payable before the said date. This would be so in spite of Section 17(4) of the Act, as the defaults, which would be cured by the refusal of the decree for ejectment on the ground of default under that provision, would be defaults, for which such a decree might otherwise have been passed, or, in other words, defaults under Sectopm 13(1)(i), that is, defaults, prior to, and not subsequent to, the. suit. This also would be another ground to support the view that Section 22(3) would apply to cases under Section 17.

75. Adverting now, to the first submission of Mr. Das Gupta, which I have not dealt with so long, it seems to me that not much need be said upon the same. If his second submission, which I have shown above to be more fundamental, be rejected, as aforesaid, hardly anything of any importance is le.it of his first submission. This I have explained above but, in my view, the said first submission has, evea apart from that, no substance.

76. Under the Act (Section 2(h)), a 'person continuing in possession after the determination of his tenancy', is a 'tenant' until a decree or order is obtained against him for eviction, and, under Section 4, a 'tenant' under the Act has to pay to the landlord 'rent', as mentioned in the several parts of the aforesaid statute. The 'tenant', then, is under a statutory obligation to pay 'rent' until a decree or order for eviction is passed against him. If, now, the amount, mentioned in Section 17, be not rent, the 'tenant' to save himself from the mischief of the said section (Vide Section 17(4) including its proviso), and to fulfil, at the same time, his above statutory obligation and to avoid the adverse consequence of its non-discharge wilt have to make double payment or double deposit of the amount of 'rent' for, at least, the period, during which Section 17' will operate. This, on the face of it, would be unreasonable and could not have been intended by the statute. This apart, even in Section 17 itself (Vide Section 17(2), which speaks of 'amount of rent' and 'rent payable,'), there is enough indication that what is required to be paid or deposited under Section 17(1) is nothing but rent. The same view follows from Section 17(4), which, on deposit or payment, as required under or in terms of Section 17(1) or Section 17(2), wipes out default in payment of rent, as also from the proviso to the said Section 17(4), in which reference to default in payment of rent includes, as seen above, default in payment or deposit under Section 17(1) or Section 17(2).

77. Before concluding I ought to refer to one other matter.

78. During discussion in Court, an attempt was made to exclude Section 23(3) in casts, coming under Section 17, by seeking affirmance of the, view, expressed by the Bench (Das Gupta and Law, JJ.) in : AIR1958Cal593 , Supra, on the doctrine or theory of stare decisis. The attempt, however, had to be. hastily abandoned and the suggestion quickly withdrawn as soon, as it was pointed out, almost immediately after it was made, -- that neither age nor authority or following would be available to support the said contention. Five, years would be too short a period -- particularly, in the context of relevant circumstances here, -- to give hoariness or sanctity to a decision to claim the protection or privilege of stare decisis and, as to its being followed, --

authority or following, as it is usually called, --so far as the above case is concerned, the simple and obvious answer is that the reported decisions show that there was a steady and universal undercurrent against it and it has almost always been put aside on one distinction or another. To invoke the principle of stare decisis in such circumstances and in support of such a decision would be to ignore the basic conception, underlying references to Full Benches and Special Benches, and give Bench decisions authority, which they were never intended to have. To say the least, it would be a flagrant misuse or abuse of the said doctrine. This, indeed, is obvious but, if necessary, I may just refer, in this connection, to the decision of the Supreme Court in the Bengal Immunity Co. v. State of Bihar, : [1955]2SCR603 , which, I think, would be enough and to the point.

79. My conclusion, therefore, is:

A. If the tenant is not a defaulter, the first part of Section 17(1) would not be attracted, and, so far as its second part is concerned, his deposit of rent with the Rent Controller in accordance with Section 22(3) within, at any rate, the 15th of the next succeeding month, would be valid and sufficient for its purpose.

B. If the tenant is a defaulter, so far as the first part of Section 17(1) is concerned, the amount under it (including interest) has to be deposited in Court or paid to the landlord and no deposit with the Rent Controller will be permissible, as neither defaulted rents nor interest can be so deposited, but the amount under the second part of the Section (Section 17(1) ) may still be validly deposited with the Rent Controller in accordance with Section 22(3), read, of course, with the connected Section 2r, -- at any rate, within the 15th of the next succeeding month.

80. In the above view, the instant Rule should succeed and I would make it absolute without costs.

G.K. Mitter, J.

81. This matter has been referred to us for determination of the question as to whether a deposit of rent with the Rent Controller in terms of Section 21(1) of the West Bsngal Premises Tenancy Act after the institution of a suit for ejectment of the tenant constitutes valid payment to the landlord wihin the meaning of Section 17(1) or (2) of the West Bengal Premises Tenancy Act 1956, (hereinafter referred to as the Act) for the purpose of excluding the operation of Section 17(3) of the Act.

82. The facts are as follows: The plaintiff Prakash Chandra Dutta filed a title suit No. 659 of 1960 on September 14, 1960 in the Court of the Fourth Munsif at Alipcre against Siddheswar Paul the tenant under Section 13(1)(k) of the Act. The writ of summons was served on the defendant on October 30, 1960 and he entered appearance in the suit on November 4, 1960. He deposited rent for the month of October 1960 with the Rent Controller on November 9, 1960. Thereafter even with the knowledge of the suit and after service, of the summons he deposited rent for November, 1960 with the Rent Controller on December 14, 1960 and similarly deposited rent with the Controller for the month of December, 1960 on January 11, 1961. He filed his written statement on January 17, 1961. The plaintiff made an application under Section 17 (3) of the Act on January 22, 1961. The defendant put in his objection thereto on March 10, 1961 and simultaneously therewith filed a petition under Section 17(2) of the Act. The learned Munsif held that the deposit of rent with the Rent Controller for the months of November and December 1960 did not either amount to payment to the landlord or deposit of the rent within the meaning of Section 17(1) ot the Act and by his order dated March 22, 1961 he struck off the defence of the tenant and directed the case to be heard ex parte. Against this order the defendant came up to this Court giving rise to the reference mentioned.

83. In order to appreciate the point involved it is necessary to refer to some of the provisions of the Act which has not abrogated the law between landlords and tenants as provided for in the Transfer of Property Act but has effected drastic changes in certain respects for the protection of tenants. In this case we are concerned with the rights of monthly tenants and my observations must be treated as limited to them. Under the Transfer of Property Act the tenancy of a monthly tenant could at any time be terminated by 15 days notice expiring with a month of the tenancy unless there was a contract or local law or usage to the contrary. It was not necessary for the landlord to give any reason for ejectment of the tenant. A mere notice to quit indicating the termination of the tenancy was enough. That right has been very substantially cut down by Section 13(1) of the Act which has in clauses (a) to (k) specified the grounds on which alone a decree for the recovery of possesssion can be made in favour of the landlord. Under Clause (k) a tenant who has agreed in writing with the landlord, to deliver vacant possession of the premises to the landlord and has failed to do so is to be liable to eviction. Another ground for eviction contained in Clause (1) occurs where the tenant has made, a default for the payment of rent for two months within a period of r2 months or for two successive periods in a case where the rent is not payable monthly. Under Section 2(h) of the Act 'tenant includes any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be payable and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction'. This shows that notwithstanding the termination of the contractual tenancy the person continuing in possession remains' a tenant so long as a decree or order for eviction is not passed against him. Under Section 19(1) of the Act

'a tenant who. is in possession of any premises, to which the Act applies shall observe all the terms and conditions of the contract creating the tenancy and shall be entitled to the benefits thereof so far as these, terms and conditions are consistent with the provisions of this Act.'

The result is that a person who continues in pogsession after the termination of the tenancy is still under an obligation to observe the condition as to payment of rent. Under Section 4(2)

'rent shall be paid within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month lor which it is payable.'

84. Chapter IV of the Act which is headed 'deposit of rent' contains Sections 21 to 25, Under Section 21(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 p. bona Me 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.'

Sub-sections (2) and (3) of the said section lay down the formalities which the tenant must observe in making the deposit. Sub-section (4) enjoins upon the Controller to intimate to the landlord full particulars of the deposits. Under Sub-section (5) the Controller is empowered to make an order for payment of the rent deposited to the landlord if he is satisfied that he is the person entitled to receive the rent. Rent which has been deposited but not withdrawn bv the landlord for ten years may be forfeited to Government by an order of the Controller.

85. Section 22(1) lays down that in order to avoid becoming a defaulter under Section 13(1)(i) the tenant must deposit the rent under Section 21

'within fifteen days of the time fixed by the contract in writing for payment of the rent or in the absence of such contract in writing within the last day of the month following that for which rent was payable.'

'The tenant cannot get the benefit of the deposit if he wilfully or negligently makes any false statement in his application for depositing the rent by virtue of Sub-section (2) of Section 22. Under subsection (3) of Section 22

'if the rent is deposited within the tune mentioned in Sub-section (1), and does not cease to be a valid deposit for the reason mentioned in Sub-section (2), the deposit shall constitute payment of rent to the landlord as if the amount deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment of rent when there is such a contract, or in the absence of any contract, on the fifteenth day of the month next following that for which rent is payable.'

86. The precondition of a deposit under Section 21 is the refusal of the landlord to accept the rent tendered by the tenant within the time referred to in Section 4 or the existence of a bona fide doubt in the mind of the tenant as to the person to whom the rent is payable. Deposit of rent with the Controller serves the interest of of both the parties. Plainly the object behind Section 21 is to prevent the landlord from unreasonably refusing to receive rent from tenants so as to make them defaulters and to ensure that the tenants on their part do not raise anv imaginary or frivolous disputes to avoid or delay paying the rents. The legislature further did not want that the deposit of the rent or the withdrawal thereof should unduly prejud.ce the interest, of any of the parties. On the one hand it provided by Section 23 of the Act that the withdrawal of the rent deposited under Section 21 was not to operate as an admission against the person withdrawing it of the correctness of the rate of rent, the period of default, the amount due or of any other facts stated in the tenant's application for depositing the rent under the said section and laid down that such withdrawal was not to operate as a waiver of any notice to quit given to the tenant except one on the ground of default referred to in Clause (1) of Sub-section (1) of Section 13, Clearly the object was that the landlord should not go on collecting the rent and at the same time try to throw the tenant out on the ground of default. Correspondingly when there was no proceeding pending in any Court for the recovery of possession of the prcm'ses and the landlord accepted rent from the tenant in respect of a period for which default may have been made by the tenant the landlord was to be precluded from relying on such default to the detriment of the tenant. Although Section 24 does not expressly refer to withdrawal of rent deposited with the Controller there can be little doubt that Section 24 wag meant to cover such withdrawal. Section 25 ensures that a tenant making a payment of rent to the landlord should have written acknowledgment of the same from the landlord.

87. It is clear that Sections 21 to 25 all relate to the stage prior to the institution of anv suit or proceeding for the recovery of possession of premises and the deposit of rent under Section 21 is the machinery provided for the smooth working of the relationship of landlord and tenant as regards payment of lent when the landlord has not taken recourse to law. A valid deposit under Section 21 is to have the same effect as if the amount of the rent had been legally tendered to the landlord in terms of the contract.

88. Notw'thstanding the institution of the suit or proceeding for the recovery of possession of premises the tenant's obligation to observe the terms and conditions of the contract creating the tenancy remain in full force and effect under Section ig so long as he does not give up possession. The legislature did not desire that the institution of any suit or proceeding for recovery of possession of premises should impair the landlord's right to receive the rent. Some provision in the Act was necessarv to ensure regular payment of rent even during the pendency of the suit or the proceeding. With this object Section 17 of the Act was enacted to provide as follows:

(Section 17 Quoted).

89. It will be notbd that Section 17(1) provides for payment of rent or deposit of the same in Court in all cases where a suit or proceeding has been instituted by the landlord for evictica on anv of the grounds referred to in Section 13. The legislature was aware that there was bound to be a time-lag between the institution of a suit and a decree for recovery of possession and it did not want that the tenant should continue in occupation without paying rent. In order that no default should be committed it enjoined on the tenant by Section 17(1) that he should either pay to the landlord or deposit in Court within one month after the service of the writ of summons all arrears of rent which might have accrued before the institution of the suit as also the rent subsequent thereto upto the end of the month previous to that in which deposit or payment was made together with interest at the rate mentioned. Thereafter the obligation of the tenant was to deposit or pay month by month the amount which was 'equivalent to the rent' by the 15th of each succeeding month.

90. In spite of some default in the regular payment of rent before the suit the tenant was protected by Sub-section (4) of Section 22 if he fulfilled the obligation under Sub-section (1) or Sub-section (2) of Section 17. This protection was however not to avail him if he made default in payment of rent for four months within a period of twelve months.

91. It will be noticed that the time for deposit of rent in Court is not the same as that for deposit of rent with the Controller under Section 22. If for instance .there was a contract in writing by which rent for any month was payable by the 20th of the succeeding month a deposit by the fourth or fifth of the month next after the succeeding month would be valid under Section 22 (1) but under Section 17(1) rent for any particular month due after the first deposit of arrears would be out of time if paid or deposited after the 15th of the succeeding month.

92. In some of the decided cases emphasis has been laid on the use of the words 'at the irate of rent at which it was last paid' as also 'a sum equivalent to the rent at that rate' in Section 17(1) as tending to show that what was being paid was not rent but something to be regarded in the nature of lent because of the institution of the suit and the severance of the contractual relationship of landlord and tenant. But this in my opinion is not the proper way to consider the position of the defendant in a. suit for recovery of possession because he continues to be a tenant so long as a decree or order for eviction is not made against him.

93. Deposits under Section 21 are liable to forfeiture to Government unless withdrawn within ten years from the dates of posting of the notices of deposit. There is no corresponding provision for forfeiture of deposits in Court. Further by withdrawing the rent deposited under Section 21 the landlord waives any notice to quit given on the ground of default but withdrawal of money deposited in Court after the institution of the suit has no such effect. It is also to be noted that a deposit with the Controller although within time under Section 22(1) may not be within the time specified in Section 17(1) and a tenant who fails to pay or deposit in terms of Sub-section (i) or (2) of Section 17 may lose a valuable right by having his defence against delivery of possession struck out.

94. Reliance was placed by the learned Advocate for the tenant on the absence of any words expressly barring the tenant's right to deposit the rent with the Controller after the institution of a suit and it was argued that as a deposit within the time limit specified in Section 32(i) was to constitute payment of rent to the landlord under Section 22(3) a tenant who had deposited rent in terms of Section 32 (1) was to be treated as having paid the same to the landlord within the meaning of Section 17 (1). I find myself unable to accept this contention. Whatever be the reason the legislature has clearly laid down two entirely difierent courses for the discharge of the tenant's debts to the landlord. So long as the tenant does not have the writ of summons served on him he is free to deposit rent with the Controller. He is not called upon to pay any interest but as soon as a suit is launched and the writ of summons is served on him he must either pay the landlord directly all arrears with interest upto the end of the month preceding that in which he makes the payment or deposit the same in Court. Even if the landlord had not been accepting rent from the tenant before the institution of the suit and the tenant was depositing the rent month by month with the Controller in terms of Section 22(1) a new obligation springs into existence with the institution of a suit and the service of the writ of summons. No doubt a tenant may bona fide go on depositing rent with the Controller even after the service of the writ of summons and thereby come within the mischief of Section 17 (3) a result which is very much to be deplored, but I cannot see how we can disregard the clear words of that provision because oi the hardship which the unconscious violation of the law may imoose. If the legislature is so minded it can indicate its intention by amending Section 22(3} and even give it retrospective operati n to protect tenants against whom decrees for possession have been passed, but not executed.

95. It is necessary to note in brief a number of cases where Sections 17, 21 and 22 have come up for consideration. In 61 Cal WN 890, Renupada Mukherjee, J. observed

'that the tenant may after the institution of a suit deposit rent with the Controller in the prescribed manner under Section 21 and such deposit should be taken as equivalent of payment to the landlord.'

His Lordship however gave no reason for coming to this conclusion and it is difficult to accept it. In 61 Cal WN 893, Guha Ray, J. took the opposite view. According to him the deposit required by Section 17(1) was not deposit of rent but 'an amount calculated at the rate of rent at which it was paid for the period for which the tenant had made default.' Further His Lordship held that Section 17 was in the nature of a special provision applicable only to cases where there was a suit for ejectment on grounds mentioned in Section 13 and it must take precedence over those in Chapter IV. There is considerable force in the latter cart of the opinion but for reasons already indicated I find myself unable to concur in the view that Section 17(1) does not. provide for deposit of rent.

96. In : AIR1958Cal593 . Das Gupta, T. did not take the same view as Renupada Mukherjee, J. and found unable tot persuade himself

'that the legislature having in its Section 17 laid down definitely that payments must be made month by month by the 15th of each succeeding month irrespective of whether there was a contract fixing a date of payment or not, would lightly brush that aside and produce, by the words in Sub-section (3) of Section 22, the effect that payment even on the last day of the month succeeding that for which the rent was payable, would be sufficient.' With respect, I share the same view.

97. In 64 Cal WN 685, the tenant had deposited rent with the Rent Controller for the period Chaitra 1365 (14th March, 1959) to Shraban 1366 on May 1, 1959 afrer the institution of the suit for ejectment on April 29, 1959. The writ of summons was served on May 20, 1959 which corresponded to some date in the month of Sharban 1366. The question was whether in respect of such deposit in advance with the Rent Controller the tenant was to be considered a defaulter within the meaning of Section 17(1) and whether his defence should be struck off. The learned munsif referred to the decision of Das Gupta, J. mentioned above and held that the tenant's defence should be struck off. Chartterjee, J. observed that the object of the legislation was to prohibit eviction of tenants on condition of regular payment of rent and in cases of ambiguity the section should be so construed that the tenant would get protection on condition of regular payment. His Lordship said that

'payment in the present context means not only actual payment but both direct and indirect, i.e., also by deposit before the Rent Controller, which again is authorised by the Act itself. Therefore, the striking out should be construed in such a manner as not to retard or to obstruct the protection, of the tenant against eviction.'

His Lordship was of the view that the landlord could have accepted the rent for all the months with the previous permission of the Rent Controller and if he had done so it would be absurd to have the defence of the defendant struck out on a plain reading of the section in that the tenant did not deposit rent in terms of Section 17(1) after the service of the writ of summons. No doubt if the tenant remained inactive even after the service of the writ of summons he might find himself in difficulty but he might easily have made an application under Section 17(2) for determination of the rent, if any, payable by him. The Court would then have gone into the question and made a suitable order directing the tenant to pay such amount as appeared to be due to the landlord. In such a case the tenant would run no risk of having his defence struck out even though he had made a payment in advance.

98. In 64 Cal WN 689 the writ of summons was served on October 11, 1957. According to the landlord the tenant had made a default from September 15, 1956 whereas the tenant's case was that rent from December 1956 had been deposited with the Rent Controller month by month and rent for the period September 15, 1956 to December 14, 1956 had not been paid because of some dispute with the landlord. On October 12, 1957 the tenant deposited with the Rent Controller Tent for the period 15-9-1957 to 14-10-1957 and on November 7, 1957 the tenant deposited rent similarly for the period 15-10-1957 to 14-11-1957 the tenant deposited in Court rent for the period: September 15, 1956 to December 14, 1956. His also deposited the interest due on the arrears in Court on November 11, 1957. The only question was whether deposit of rent for two months with, the Controller after the service of the writ of summons was valid within the meaning of Section 17(1). Sen, J. observed (see at page 692) that the first part of Sub-section (i) of Section 17 contained no reference to payment or deposit by the 15th of each succeeding month and that it provided chiefly for payment to the landlord or deposit in Court of all the arrears of rent together with interest from the date when the rent fell due to the date of payment or deposit; such deposit was also to include the dues for the period, subsequent to that for which the tenant may have made default upto the end of the month previous to that in which the payment or deposit was made. His Lordship added that

'under this part the tenant gets one month's time to pay or deposit in Court his dues for the period in default together with interest thereon. In a case where there is no arrear due on the date when the writ of summons is served on the tenant, it would appear from the wording of Sub-section (i) that the liability to deposit or pay month by month accrues after one month of the service of the writ of summons on the defendant, otherwise the word 'thereafter' in the second part of Sub-section (i) would have no meaning. Some rent may fall due within that one month. The tenant may no doubt deposit such rent In Court as it falls due; but if he deposits the rent thus falling due in the Rent Controller's office, it would be difficult to hold that he thereby incurs the liability under Subsection (3),'

99. In my view the first part of Section 17(1) does not come into play if there has been no default by the tenant. If he has made default already he must deposit the rent in default including the period subsequent thereto as mentioned in the section together with interest within one month of the service of the writ of summons. If he has made no default but has been depositing the rent with the Rent Controller in terms of Section 22 he would be obliged to stop making deposits with the Controller after the lapse of a month from the service of the writ of summons. Any payment thereafter could only be made to the landlord directly or deposited in Court.

100. In 64 Cal WN 880, the landlord filed a suit for ejectment on 9-5-1958 on the ground of his own requirement. The writ of summons was served on June 4, 1958. On June 10, 1958 the rent for the month of May, 1958 was deposited with the Rent Controller as it was being done-before. Rent for the month of June was deposited in Court. The trial Court made an order under Section 17(3) on the ground that the rent for the month of May, 1058 should not have been deposited with the Controller. The judgment was upset in appeal by a bench consisting of Renupada Mukherjee, J. and Banerjee, J. but their Lordships gave separate judgments. According to Renupada Mukherjee. J, Section 17(1) required a tenant to deposit or pay three kinds of money after the institution of the suit. The first kind relates to an amount which should be calculated at the rate of rent at which it was last paid and that amount should be payable for the period for which the tenant may have made default. The second kind of money payable under the above Sub-section is the amount in respect of which default had been made for the period subsequent to the period mentioned above and the third kind of money payable is monthly rent which should be paid by the 15th day of the succeeding month. Evidently the amount coming under the first category relates to pre-suit defaults, the amount coming under the second category relates to post-suit defaults and the amount coming under the third category represents monthly rent. His Lordship found that under Section 4(2) of the Act rent for the month of May, 1958 was payable by the 15th June, 1958 and the tenant could not therefore be said to have been in default in respect of the rent of May, 1958 either at the date of the institution of the suit or at. the date of service of summons or at the date of the deposit of this rent with the Rent Controller. His Lordship felt himself unable to hold that there had been non-observance of Section 17(1) of the Act. Banerjee, J. read Section 17(1) to contemplate two kinds of payment or deposit, the first being deposit or payment of an amount calculated at the rate of rent, at which it was last paid for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment was made together with interest on such amount and secondly deposit or payment month by month by the 15th of each succeeding month. His Lordship observed.

'the tenant is not certainly called upon to make any deposit under the first part of Section 17(1) unless he is in default in payment of rent for any month or months. The words 'including a period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made,' in my opinion, do not introduce any liability for payment in cases where there was 1:0 default. The words 'including' and 'thereto' link up such payment with payment of rent in default.'

His Lordship went on to consider the meaning of the words 'including' and 'thereto' and said

'if there was no default nothing could be added thereto and nothing could be included therein. If, however, there was a default then at the time of payment of such rent in default a tenant must add thereto or include therein such further' sum of money being the rent which may have fallen due, after the period of dafault, but not in default as yet.'

Accordingly His Lordship was of opinion that rent for the month of May 1958 deposited with the Rent Controller was good payment and the tenant had not incurred any liability for non-observance under Section 17(1).

101. With respect I agree with the views expressed by Banerjee, J. as to the splitting up of the payment contemplated by Section 17(1) under two heads.

102. Although there is no reference to this judgment similar observations were made in the case of 66 Cal WN 51 by a bench consisting of Sen, J. and N. K. Sen, J.

103. In 67 Cal WN 553, an ejectment suit was filed on May 9, 1956 but the writ ot summons was not served on the defendant. On may 31, 1957 the tenant entered appearance and filed his written statement. He did not however deposit in the trial Court an amount calculated at the rate of rent from November 1056 to May 1957 as he had already deposited the same with the Controller. The learned Judges Banerjee and Amaresh Roy, JJ. took the view that unless the writ of summons was actually served on the defendant Section 17(1) of the Act was not attracted and the defendant did not fall within the mischief of Section 17(3).

104. In the case before us the writ of summons was not served on the defendant before October 30, 1960. As the tenant was not in default in respect of any pre-suit period he had no liability to deposit in Court any rent upto the 3oth November, 1960. Therefore, any rent deposited with the Rent Controller upto the 3oth November, 1960 would not fall within the mischief oi Section 17(1) but after that date he could only deposit rent in Court or pay the same to the landlord by the 15th day of the each month succeeding the one for which it fell due. Thus he had to deposit in Court the rent for the month of November by the 15th of December and so on. Clearly there was a default in this respect and he incurred the liability of having his defence struck out under Section 17(3).

105. In my judgment the Rule should be discharged.


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