M.M. Dutt, J.
1. This appeal is at the instance of the defendant in a suit for ejectment.
2. The defendant was a lessee under the plaintiff and his co-sharers in respect of the suit premises consisting of two rooms in the ground floor of premises No. 25/1/A, Raj Chanlra Sen Lane, Calcutta at a monthly rent of Rs. 50/- subsequently enhanced to Rs. 60/-, under a registered deed of lease dated April 1, 1956 for a term of 16 years. Before the expiry of the lease, there was a partition of the joint properties of the plaintiff and his co-sharers by a registered deed of partition dated December 16, 1970. By virtue of the said partition, the plaintiff was allotted the said premises no. 25/1/A, Raj Chandra Sen Lane, Calcutta including the suit premises. On September 27, 1972, the plaintiff instituted a suit for ejectment against the defendant, being Title Suit No. 1098 of 1972 of the City Civil Court, Calcutta, praying for the eviction of the defendant from the suit premises on the ground of expiry of the lease. The said suit was eventually disposed of on compromise between the plaintiff and the defendant on May 14, 1974. By virtue of the said compromise, the plaintiff accepted the defendant as a tenant of the suit premises with effect from June 1, 1974 at an enhanced rent of Rs. 75/- per month payable according to the English Calendar month. The defendant was permitted to make necessary construction for his cooking place in a portion of the varandah measuring 2'8' x 23'. Further, jt was provided that the defendant would give necessary facilities to the plaintiff for the construction of an underground pipe-line under the varandah in occupation of the defendant to be completed by the plaintiff within five days. The present suit was instituted by the plaintiff for the eviction of the defendant from the suit premises on November 19, 1975 after the service of a combined notice dated September 12, 1975 for ejectment and (sic) of suit. It was alleged that the plaintiff required the suit premises for the occupation of himself and the members of his family and also for the extension of his printing press situate in the ground floor of the said premises.
3. The defendant entered appearance in the suit and contested the same. He denied that the plaintiff reasonably required the suit premises. It was pointedout by him that at the time of the institution of the said Title Suit No. 1098 of1972, the family of the plaintiff consisted of more members as three of his daughters were then unmarried. The plaintiffhad also his printing business at thattime. In substance, the defence of the defendant was that since the institution ofthe said suit there had not been a changeof circumstances justifying the allegedrequirement of the plaintiff. He also denied the service and the legality of thenotice to quit.
4. The learned Judge, 2nd Bench, City Civil Court, Calcutta came to the finding that the notice to quit was served on the defendant and that the same was legal and valid. He, however, held that the plaintiff had failed to prove his reasonable requirement of the suit premises. In view of the said finding, the learned Judge dismissed the suit. Hence this appeal.
5. The only question that is involved in this appeal is whether the plaintiff has been able to prove his reasonable requirement of the suit premises. The plaintiff is in possession of one room in the ground floor and two rooms in the first floor and another room in the second floor of the said premises. The printing press of the plaintiff is situated in the ground floor room. The evidence of the plaintiff is that after the partition between him and his co-sharers he had to construct a stair-case through the ground floor up to the roof, as a result of which the said room as well as one room in the first floor of the said premises became smaller in size. Further, his evidence is that because of the construction of the stair-case through the ground floor room wherein he has his printing press, he had to construct an overhead wooden platform inside that room for the composition section of the press. He has also spoken about the difficulties and risk of working on the wooden platform.
6. The plaintiff has not given the date when the stair-case was constructed. Under the partition deed (Ext. 2), the construction of the stair-case was to be made by March 31, 1972. In the absence of any evidence adduced on behalf of the plaintiff as to when the stair case was constructed, the learned Judge in our opinion, was justified in proceeding on the footing that the stair-case was constructed by March 31, 1972 in terms of Ext. 2. The alleged difficulty and inconvenience which have been relied on by the plaintiff in support of his case for reasonable requirement of the suit premises were also present before the said Title Suit No. 1098 of 1972 was instituted by him. Moreover, at that time, three daughters of the plaintiff were unmarried. The plaintiff could have easily got a decree for evicting the defendant and recover khas possession of the same in the said suit. Instead, the plaintiff entered into a compromise with the defendant and allowed him to continue to occupy the suit premises as a tenant under the plaintiff at an enhanced rent. The circumstances which were in existence at the time the said Title Suit No. 1098 of 1972 was filed were worse than the present circumstances so far as the plaintiff is concerned. Even assuming that the circumstances justifying the reasonable requirement of the suit premises by the plaintiff were in existence before the said compromise decree was passed and continued till the institution of the present suit, yet we do not think that the plaintiff can claim to evict the defendant from the suit premises and recover possession thereof on the ground of reasonable requirement based on the same circumstances. The plaintiff has not satisfactorily explained why he refrained from pursuing his claim for recovery of possession in the earlier suit. In our view, in the absence of such an explanation, unless the plaintiff proves any change of circumstances since the disposal of the earlier suit for ejectment, it is difficult to believe that the plaintiff had or has any requirement for the suit premises. It has, however, been contended on behalf of the plaintiff appellant that he wants to expand the printing press, but this requirement was also present when the plaintiff entered into a compromise with the defendant in the earlier suit. It is not disputed that since then there has not been any change of circumstances and, accordingly, we hold that the plaintiff has no case for reasonable requirement.
7. It has been strenuously urged by Mr. Sakti Nath Mukherjee, learned Advocate appearing on behalf of the appellant, that if the plaintiff can prove that he reasonably requires the suit premises and is not in possession of a reasonably suitable accommodation, the Court is bound to pass a decree for ejectment, even though the plaintiff had not availed himself of a decree for ejectment in the earlier suit. In support of that contention, he has placed reliance on a decision of a learned single Judge of this Court in Sumatibala Sen v. Heramba Kumar Roy, (1956) 60 Cal WN 783, where it has been held that a person may be compelled to be content with a limited accommodation under certain circumstances, but that does not necessarily mean that he cannot have reasonable requirement for additional accommodation. Further, it has been held that the fact again that at some past period some rooms fell vacant and, for some reason or other, the plaintiff did not choose to occupy those rooms but re-let the same to other persons does not also necessarily disentitle the plaintiff from making out a case of reasonable requirement, even though under what circumstances or under what conditions or considerations, the plaintiff had re-let those rooms are not known. The facts of that case are different from those of the instant case before us. In that case, the plaintiff had let out two rooms not appertaining to the premises in suit. There might be justifying circumstances under which the plaintiff had to re-let two rooms, but in the instant case, the plaintiff did not deliberately got a decree for eviction passed against the defendant, although according to him, he was in greater need of the suit premises. The said decision, therefore, is of no assistance to the plaintiff.
8. In his judgment, the learned Judge has pointed out that the defendant violated the order dated Aug. 5, 1976 passed under Section 17 (2A) (b) of the West Bengal Premises Tenancy Act, 1956. By the said order, the defendant was directed to pay a sum of Rs. 80/- including statutory interest on account of rent for the month of Oct. 1975, by two equal monthly instalments, the first instalment was payable by Sept. 15, 1976 and the second instalment by Oct. 15, 1976. The defendant deposited the first instalment within tune but he deposited the second instalment on October 25, 1976 instead of Oct. 15, 1976. It has been observed by the learned Judge that though no argument was advanced by either party regarding the deposit of the second instalment, yet the defence of the defendant against delivery of possession cannot be struck out as no application was filed by the plaintiff in that regard. It is contended on behalf of the appellant that the learned Judge should have struck out the defence of the defendant against delivery of possession, notwithstanding the fact that no application was filed by the plaintiff praying for such striking out. On the other hand, it has been argued by Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the defendant respondent, that as the hearing was concluded, the learned Judge had no jurisdiction to strike out the defence of the defendant against delivery of possession in spite of the fact that it was detected by him at the time of writing out the judgment that the defendant had failed to comply with the order passed under Section 17(2A)(b). The reason behind this contention is that under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, after the Court orders the defence against delivery of possession to be struck out, it shall proceed with the hearing of the suit. But as the hearing of the suit was concluded, there was no question of striking out the defence against delivery of possession. It has, however, been subsequently detected in course of argument that the City Civil Court remained closed from Oct. 1 to Oct. 24, 1976 on account of long vacation. As the defendant had deposited the amount of second instalment on Oct. 25, 1976 there was compliance with the order under Section 17 (2A) (b). Accordingly, there is no necessity for us to decide the said point. It is, however, contended by Mr. Mukherjee for the appellant that although the Court was closed for those days, the defendant should have paid the amount of the second instalment directly to the plaintiff within the time allowed by the said order under Section 17(2A) (b), and he not having done that his defence against delivery of possession was liable to be struck out. It is true that under Section 17 (2A) (b) the tenant may either deposit or pay, but in our view, the option being with the tenant he can adopt either mode according to his own convenience. He may deposit in court or with the Rent Controller one instalment and pay to the landlord another instalment, for in either case it is payment to the landlord which the tenant is required to do. When the court is closed on the 1st day of the period within which the tenant is to pay or deposit the amount of any particular instalment, and if he chooses to deposit the amount instead of payment to the landlord, he is entitled to wait till the reopening of the court for the purpose of making the deposit. If the deposit is made on the day the court reopens, it will be a valid deposit and will constitute payment to the landlord within the time allowed. In the circumstances, we hold that the de-posit of the second instalment was quite legal and valid. No other point has been urged on behalf of the appellant.
9. For the reasons aforesaid, the judgment and decree of the learned Judge are affirmed and this appeal is dismissed. But in view of the facts and circumstances of the case, there will be no order for costs.
10. I agree.