Arun K. Mukherjea, J.
1. This appeal has come up for hearing and disposal before this Full Bench upon a reference made by A. N. Ray and S. K. Mukherjea, JJ., under Chapter II Rule 1 (ii) of the Appellate Side Rules of this High Court. During the hearing of the appeal before their Lord-ships a question arose as to the interpretation of the proviso to Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act, 1956 as amended by Act IV of 1968. The same point had been raised in another appeal heard by their Lordships, namely. P. A. No. 565 of 1965 = (reported in 0043/1973 : AIR1973Cal204 ). Jamuna Prasad Chowrasia v. Kishorilal Poddar. That appeal was also referred by their Lordships for a decision by a Full Bench. The short facts and circumstances of this appeal are as follows:
2. The defendants M/s. Radharam Sohanlal were the plaintiff's tenants in respect of one Guddy room in the ground floor and 3 rooms on the top floor of premises No. 3-A, Mullick Street. Calcutta, at a rental of Rs. 238/- per month payable according to the English calendar month. The plaintiff complains that the defendants defaulted in payment of rent for more than four months within a period of 12 months since April 1963. The plaintiff served a notice to quit on the defendants calling upon the defendants to quit and vacate the premises in suit on the last day of September, 1963. The defendants not having complied with the said notice the plaintiff filed the suit for eviction. The plaintiff contended that by having defaulted in payment of rent for more than four months within a period of 12 months the defendants have forfeited their right to be protected under the provisions of West Bengal Premises Tenancy Act of 1956.
3. The defendants contested the suit by tiling a written statement. They took various technical objections and, in any case, denied the story of default in the matter of payment of rent. They came out with the story that they had surrendered the three rooms on the top floor and were entitled under an agreement with the landlord to adeduction of rent. The defendants, however, continued to pay rent at the former rate so that in the result they had made some excess payments which were to he adjusted against future rents from April 1963. Therefore, the defendants said, they had not committed any default. On these pleadings the following issues were framed for determination:--
(1) Is there any relationship of landlord and tenant between the parties to the suit?
(2) Has the tenancy in suit been properly described?
(3) Is the defendant a defaulter as alleged in the plaint? Is he entitled to no protection against eviction?
(4) Have statutory notices been duly served? If so, were they valid and sufficient?
(5) Ts the plaintiff entitled to a decree in ejectment as prayed for?
4. After the evidence had been taken the learned trial Judge found in favour of the plaintiff on all the issues and decreed 1hc suit in favour of the plaintiff. The defendants thereupon appealed from the judgment and order of eviction in this Court. The appeal came up for hearing before A. N. Ray, J. and S. K. Mukherjea, J. During the hearing of the appeal the appellants claimed that since they had made payment in terms of Section 17 (2) of the West Bengal Premises Tenancy Act and since they never had obtained relief under Sub-section (4) of Section 17 of the Act they were by virtue of the amended proviso entitled to the protection given by Sub-section (4). In other words, no decree from eviction or order to take delivery of possession can be passed against them in this appeal. Ray. J. and Mukhcrjea, J., did not agree about the scope and effect of the amended proviso and thereupon made this reference.
5. S. K. Mukherjea, J., favoured theconstruction that if a defaulting tenant has made deposits in terms of Sub-section (1) and Sub-section (2) of Section 17 and if he has not obtained any relief under Sub-section (4) in an earlier suit no decree or order for delivery of possession is to be passed against him by any Court by reason of the aforesaid amended proviso. On the other hand, Ray, J., favoured the construction that the second default mentioned in the amended proviso need not be a default which is the subject-matter of a second suit and that all the defaults referred to in the Act are defaults in the same suit, so that where a defaulting tenant has defaulted in the payment of rent for four months for a second time within a period of 12 months the tenant would not be entitled to relief contemplated in Sub-section (4) of Section 17. Their Lordships both sought to derive support for their respective views from two earlier Bench decisions in Gourdev Mukhcrjce v. Purnima Devi, (1968) 72 Cal WN 155 and Bata ShoeCo. (P) Ltd. case, (1968) 72 Cal WN 241. Confronted with this situation their Lordships preferred the matter for decision by a Full Bench along with another appeal in which also the same point arose.
6. We have just now delivered our judgment in F. A. No. 565 of 1965 --(reported in 0043/1973 : AIR1973Cal204 ) in which we have held that under amended proviso no decree or order for delivery of possession can he made against a tenant who has not committed a default in payment of rent for four months within a period of 12 months after having once before obtained the same relief in a suit. In the instant case, it is nobody's contention that the appellant had made a default for which they had obtained relief in an earlier suit. In the facts and circumstances of the case, therefore, the appellant will be entitled to the protection given by the amended proviso to Sub-section (4) of Section 17 of the Act.
7. Fn the result, we allow the appeal and set aside, the decree passed by the learned Subordinate Judge. We order, however, that the respondent will get the costs of both the suit and the appeal.
Sabyasachi Mukharji, J.
8. I agree.
M.M. Dutt, J.
9. I agree.