Sudhindra Mohan Guha, J.
1. The order dated the 25th May, 1981 passed by the Munsif 5th Court, at Alipore, allowing an application under Section 17 (3) of the West Bengal Premises Tenancy Act, has been challenged before this Court. The suit in question being Title Suit No. 295 of 1973 was commenced by the opposite party for ejectment of the petitioner from the suit premises only on the ground of reasonable requirement, The tenancy was said to be held at a rental of Rs. 100/- per month according to English Calendar Month. The petitioner defendant after appearance deposited rent under Section 17 (1) of the West Bengal Premises Tenancy Act, since December, 1975 and made an application under Section 70 (2A) (b) of the Act for liquidating the admitted arrears since August, 1973 upon which on a joint petition by the parties, the learned Munsif by an order dated 30-11-76 directed to liquidate the arrears by 29 months. The petitioner also filed an application for fixation of fair rent in the office of the Rent Controller Alipore, wherein the rent was assessed at Rs. 37/-per month. On appeal the District Judge remanded the case to the Rent Controller against which the petitioner moved this Court and obtained a Rule and by an interim order the order passed by the District Judge was stayed till the hearing of the Rule. Thus following the aforesaid fixation case the petitioner made an application under Section 151 of the Code of Civil Procedure for modification of the order passed under Section 17(2A) of the Act permitting the petitioner to deposit the current rent at the rate of Rs. 37/-per month, and also to deposit the arrears of the rent at such rate. The petitioner however did not deposit any current as well as arrears of rent, as he was under the impression that he would deposit the same after the modification of the order under Section 151 of the Code of Civil Procedure. The opposite party thereafter filed an application under Section 17 (3) of the Act. On petitioner's insistence on disposing of the application under Section 151 of the Code of Civil Procedure prior to the disposal of the application under Section 17 (3), the learned Munsif by an order dated 29-3-79 rejected the application under Section 151 of the Code, The petitioner against that order came in revision before this Court.
2. On 17-6-80 the rule against the order of the District Judge was discharged after an observation that the petitioner would be entitled to raise objection during the hearing of the application under Section 17(3) of the Code.
3. The application under Section 17 (3) was disposed of by the impugned order on 20-5-1981.
4. It is contended by Mr. Kashinath Dey, the learned Advocate for the petitioner that the learned Munsif failed to exercise jurisdiction in not considering the fact that in view of the order passed in C. R. 9538 (W) of 1978 the order passed by the Rent Controller fixing the rate of rent at Rs. 37/- per month was in force and the petitioner was entitled to adjust the excess amount paid by the petitioner and as such the petitioner could not come with' in the mischief of Section 17 (3) of the Act.
5. The objection raised by the petitioner during hearing of the application under Section 17 (3) of the Act was dispelled by the learned Munsif by observing that the Rent Controller was not a Court in the strict sense as its order is not binding upon this Court. In Brajananda Sinha v. Jyoti Narain reported in : 1956CriLJ156 it was observed pronouncement of a definitive judgment is considered to be essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicted that he or they constituted a Court. On an application under Section 8 (1) (c) of the Act, the Rent Controller is to fix fair rent on evidence under Section 9 of the Act. Thus in doing so the Rent Controller is to pronounce a judgment. So it should not be laid down that the Rent Controller is not a Court. Now it is to be seen whether the petitioner was justified in not depositing the rent at the rate of Rs. 100/- per month because of fixation of rent at Rs. 37/- per month.
6. Mr. Tarun Chatterjee, the learned Advocate for the opposite party contends that the petitioner being a statutory tenant was not competent to file a petition for fixation of rent. In support of his contention he makes reliance on the decision in the case of Sudhir Kr. Chakra-borty v. Ashutosh Bhattacharya reported in : AIR1980Cal108 . It is held therein by G. N. Ray, J., that after the determination of tenancy statutory tenant cannot make an application under Section 8 of the West Bengal Premises Tenancy Act for determination of fair rent by the Rent Controller. But in Dhana-pal Chettiar v. Yesodai Animal, reported in : 1SCR334 , it is held by the Supreme Court that a tenant continues to be so even after determination of the tenancy and till the date of Khas possession. Such is also the definition of the tenant under Section 2 (h) of the West Bengal Premises Tenancy Act, 1956. Having regard to the decision of the Supreme Court and to the definition as hereunder there is little difference between a contractual tenant and a statutory tenant. Be that as it may we need not enter into the controversy whether a tenant after service of notice to quit can file an application for fixation of fair rent under Section 8 of the Act. It can be remembered in this case, this application under Section 8 was filed on 15-5-73 and the suit was filed on 5-8-73. Thus this application for fair rent was filed at a time when there was no suit for ejectment pending against the petitioner.
7. Lastly, Mr. Tarun Chatterjee con-lends that there was no dispute as to the rate of rent under Section 17 (2) of the Act. In such circumstances, the petitioner tenant was under an obligation to pay rent under Section 17 (1) of the Act at the rate at which it was last paid. Section 17 of the Act lays 'down that a tenant in order to enjoy pro-lection against delivery of possession is to deposit either within one month from the service of summons or within one month from his appearance in Court, or with the Controller 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 deposit or payment is made together with statutory interest,
8. Mr. Chatterjee next places reliance on the decision of a Division Bench of this Court in the case of Central Coal Fields Ltd. v. Rabindra Nath Dutta reported in : AIR1980Cal114 wherein it is stated that under Section 17 (1) a tenant is required to deposit or pay to the landlord the entire amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default, Mr. Chatterjee also relies on another Division Bench decision of this Court in Ahmed Ali Khan v. Mrs. Ivy Claire Nabi Buksh, reported in (1960) 64 Cal WN 391. It is laid down therein that proper interpretation of Section 17 (2) would be that in a case where rent is standardized before or during the pendency of the ejectment suit and the tenant brings it to the notice of the Court and raises the relevant dispute as to the amount of rent payable by him which includes the rate of rent or the rate at which it is to be paid, the Court in spite of Section 17 (1) is entitled on the tenant's application to determine and fix the rate payable under Sub-section (2) at the Standardised figure.
9. But in this case there was no application under Section 17 (1) of the Act. The rate of rent was not challenged earlier. It was only for fixation of fair rent at Rs. 37/- per month the petitioner being elated? filed an application under Section 151 of the Code of Civil Procedure for reconsideration or modification of the order passed under Section 17 (2A) of the Act. In agreement with Mr. Chatterjee, I would hold that in order to claim protection the tenant had no other alternative but to pay or to deposit an amount equivalent to rent at the rate at which it was paid last. It is contended however, by Mr. Jiban Ratan Chatterjee, for the opposite party that the decision under Section 17 (3) of the Act can be deferred till the disposal of the writ application filed by the petitioner. As it goes in favour of the petitioner. I do not object to such proposition but before doing so it is to be seen whether the petition under Section 151 of the Code of Civil Procedure was mala fide. As the Rent Controller fixed the rent at Rs. 37/-per month the petitioner was under the impression that the Court would reconsider the order. In view of the matter, before striking out the defence under Section 17 (3) of the Act, the learned Munsif should have given the petitioner another opportunity to comply with the order passed by the Court on 30-11-76. There is no dispute to the fact that petitioner deposited rent from Dec., 1975 to April, 1977. In view of the foregoing findings the impugned order is set aside and the petitioner should be given another chance to comply with the order. In case the petitioner fails to comply with the order the learned Munsif would dispose of the application filed under Section 17 (3) of the Act according to law. It is for him to sea whether this would be deferred till the disposal of Writ Petition filed by the petitioner before the High Court, The ap-plication is thus disposed of. There will be no order for costs,