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Harendra Nath Chatterjee Vs. Sailendra Krishna Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 855 of 1961
Judge
Reported inAIR1967Cal185
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 5, Rule 19A; ;West Bengal Premises Tenancy Act, 1956 - Section 17 and 17(1); ;West Bengal Premises Tenancy (Amendment) Act, 1965 - Section 5
AppellantHarendra Nath Chatterjee
RespondentSailendra Krishna Saha and ors.
Appellant AdvocateBijan Bihari Das Gupta and ;Sarojendra Nath Das Majumdar, Advs.
Respondent AdvocateSudhansu Bhusan Sen and ;Aditya Narain Roy, Advs.
Cases ReferredApurba K. Sinha v. Surendra Narayan Sinha
Excerpt:
- orderbijayesh mukherji, j. 1. by this rule, obtained on march 21, 1961, under section 115 of the civil procedure code 5 of 1908, the tenant defendant seeks reversal of an order dated february 7, 1961, of a learned judge, city civil court, striking out his defence against delivery of possession under section 17. sub-section (3), of the w. b. premises tenancy act 12 of 1956 (hereafter shortened into 'the act') in the following circumstances:the petitioner was a tenant, under the opposite party, of 4 pashupati bose lane in the town or calcutta, on a rent of rs. 80 a month, payable according to the bengali calendar. a contractual tenancy as this was put an end, to on the expiry of the last moment of the last day of bhadra 1366 b.s. (corresponding to september 17, 1959) by the requisite notice.....
Judgment:
ORDER

Bijayesh Mukherji, J.

1. By this rule, obtained on March 21, 1961, under section 115 of the Civil Procedure Code 5 of 1908, the tenant defendant seeks reversal of an order dated February 7, 1961, of a learned Judge, City Civil Court, striking out his defence against delivery of possession under Section 17. Sub-section (3), of the W. B. Premises Tenancy Act 12 of 1956 (hereafter shortened into 'the Act') in the following circumstances:

The petitioner was a tenant, under the opposite party, of 4 Pashupati Bose Lane in the town or Calcutta, on a rent of Rs. 80 a month, payable according to the Bengali calendar. A contractual tenancy as this was put an end, to on the expiry of the last moment of the last day of Bhadra 1366 B.S. (corresponding to September 17, 1959) by the requisite notice to quit. And only eight days later, to wit, on September 25, 1959, the opposite party raised the action in ejectment (out of which this rule arises), on the ground of reasonable requirement of the premises for their own occupation: just the ground Section 13, Sub-section 1, Clause (f), of the Act, specifies. The writ of summons was served on the petitioner qua defendant on November 11, 1959, corresponding to Kartick 24, 1366 B.S. He entered appearance in the suit on November 27, 1959, and filed his written statement on December 15, 1959. On the day following, that is to say, on December 16, 1959, corresponding to Agrahayan 29, 1366 B.S., he deposited the rent for Kartick in the forum of the rent controller with whom he was depositing the rent hitherto. Thus, the deposit was made of the rent for Kartick, not within one month of Kartick 24, 1366 B.S., the date of the service of the writ of summons, but on the 35th day therefrom; nor again by the 15th day of Agrahayan, the month succeeding Kartick, but fourteen days later.

Such are the facts upon which the learned advocates appearing for both the parties make two concessions before the learned trial Judge. One, the first part of Section 17, Sub-section (1), of the Act, requiring the deposit of the amount in default with the statutory interest etc. is notattracted. Two, is attracted instead the second part thereof, requiring deposit of a sum equivalent to the rent, month by month, by the 15th day of each succeeding month. And upon these concessions, the learned judge finds that the rent for Kartick 1366 B.S. was deposited not by the 15th day of Agrahayan, the month succeeding Kartick, but fourteen days later, namely, on Agrahayan 29, 1366 B.S. He, therefore, sees infraction of the second part of Section 17, Sub-section 1, of the Act, and strikes out the petitioner's defence against delivery of possession under Sub-section 3 thereof. Hence this rule.

2. Appearing for the petitioner, Mr. Das Gupta raisas two points. First: the writ of summons was served not on November 11, 1959, corresponding to Kartick 24, 1366 B.S., but on November 25, 1959, corresponding to Agrahayan 8, 1366 B. S. (If that is so the deposit of rent for Kartick with the controller on Agrahayan 29, 1366 B. C., would be within one month of the service of the writ of summons. By implication, therefore, the protection of the first part of Section 17, Sub-section (1), of the Act is being sought.) Second: the facts in hand are not caught by Section 17, Sub-section (1), in any manner. Mr. Sen appearing for the opposite party, contends just the other way about. First: that the writ of summons was served on November 11, 1959 (Kartick 24, 1366 B. S.) is a finding of fact come to by the court of facts, and it is not for me in exercise of my revisional jurisdiction to lay my hands on it. Second: whichever way you analyse and construct Section 17, Subsection 1, of the Act, the petitioner is 'caught in the meshes of both its parts', and, in particular, with no way for an escape from the second part thereof.

3. On the first point, namely, the date of service of the writ of summons, the return of the bailiff reveals that on November 11, 1959, at 6-30 a.m. or thereabouts he went to 4 Pashupati Bose Lane, met the petitioner, posted him with the contents of the summons, and, on his refusal to accept it, and what accompanied it, upon proper receipt, served the copy thereof and other papers by affixing them on the outer door of the premises. Such service was witnessed by persons who refused to disclose their indentity. The return then records the location of the premises 'near the meeting place of' Pashupati Bose Lane and another. To go through such return is to see compliance with the provisions of order 5, Rules 10, 12, 16, 17 and 18, of the Civil Procedure Code. There is a little more yet. A return as this is verified by the declaration pf the bailiff and the original returned to the court. So, Order 5, Rule 19, as amended by this court by virtue of its rule-making powers under Section 122, is complied with too. It therefore becomes optional with the court to examine the bailiff on oath, or to cause him to be so examined, touching the proceedings of the service of the summons. The court does not do so, but declares instead, that the summons has been duly served: vide order No. 2 in the order-sheet dated November 27, 1959, the very day the petitioner entered his appearance in the suit. Order 5, Rule 19, apart, the court does what it is entitled to do.by virtue also of Rule 19A, another rule made by this court under Section 122, which bears:

'19 A. A declaration made and subscribed by a serving officer shall be received as evidence Of the facts as to the service or attempted service of the summons.'

The trial court has done no more. Not thatsuch return is sacrosanct. It is not. It is justa piece of evidence which, like any other evidence, is liable to be rebutted. The petitioner did seek to rebut it by his affidavit dated February 25, I960, in answer to the opposite party s application dated January 25 previous, under Section 17. Sub-section 8, of the Act. The fist of such affidavit, in so far as it is material 6n this point, is no more than this:

Service of summons on November 11, 1959, is denied. At the same time it is admitted that we summons was served on November 25, 1959: vide paragraphs 5 and 9.If a court of facts, after having weighed such return of the bailiff and affidavit of the petitioner, finds as a fact, as indeed it does, that the bailiffs return stands, the least that can be said is that it has the jurisdiction to do so. And sosoon as that is said, I have no Jurisdiction even to interfere with such finding. I therefore find the first point against the petitioner.

4. Now, to the second point about the validity of deposit of the rent for Kartick with the rent controller on Agrahayan 29, more than a month after Kartick 24 previous, the date of service of summons, and fourteen days too late after the 15th day of Agrahayan, the month succeeding Kartick. The controversy about the validity of a deposit made in the forum of the controller, after the service of summons in a suit, is now dead, because of the Premises Tenancy (Amendment) Act, 29 of 1965, which, by Section 5, Clause (b), amends this part of Section 17, Sub-section 1, of the Act to read, omitting the words that are not necessary:

'On a suit being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of Subsection 2, within one month of the service of the writ of summons on him, deposit in Court or with the Controller or pay to the landlord etc. etc.'

The words--or with the Controller--have been added, and shall be deemed always to have been added, to the words that existed so long. Such is the effect of the amendment made by Section 5, Clause (b), of the Amendment Act. By this 'deeming' provision, therefore, the petitioner's deposit of Kartick rent with the controller cannot go down as invalid on the ground that it is a deposit in the forum of the controller instead of in court. That indeed is clear. And I have not been addressed even on this either by Mr. Das Gupta or Mr. Sen.

5. What I have been addressed on, in a most helpful manner, is the validity of the deposit of the Kartick rent on Agrahayana 29 following, judged in the light of Section 17, Subsection 1, of the Act. But what really is the mandate of this Sub-section on deposit to be made by the tenant defendant? The litigation in hand v concerned only with deposit with the controller. And, for such deposit, what Sub-section 1 says to the tenant, the petitioner before me, in file context of facts here, is plainly this:

I. Within one month of Kartick 24, 1368 B. S., the date of service of summons, that is to say, within Agrahayan 24, 1366 B.S., deposit with the controller

A. an amount calculated at the rate of rent at which it was last paid, for the period you may have made default,

B. including the period subsequent thereto up to the end of the month previous to that in which you are making the deposit,

C. together with interest on such amount calculated at the rate of 8 1/3 per cent a year from the date when such amount was payable up to the date of deposit.

II. Thereafter continue to deposit (with the controller), month by month, by the 15th day of each succeeding month a sum equivalent to the rent at that rate.

6. This is all that Section 17, Sub-section (1), of the Act says to the tenant petitioner before me. Let it now be seen how such mandate works out when translated to the facts before me.

7. Take IA first of Sub-section 1's mandate as analysed by me in paragraph 5 ante. Be it remembered that the tenant was depositing rent with the controller. There is no time fixed by contract for payment of the rent. So, in absence of such contract, the rent has to be paid by fee fifteenth day of the month next following the month for which it is payable, as Section 4, Subsection 2, of the Act prescribes. But, because the tenant had taken to depositing the rent with the controller from before, Section 4, Subsection 2, does not apply here. Section 22, Subsection 1, does, permitting him to deposit the rent for Kartick by Agrahayan 29, the last day of the month following Kartick. In 1366 B. S. 29 days made the month of Agrahayan. Thus, at the relevant time: Kartick 24, there was no default in payment of rent for Kartick. Both Mr. Sen and Mr. Das Gupta agree--and that indeed is patent--that rent for no other month was in default then. So this part of Sub-section l's mandate: 1-A, upon the tenant has no application here.

8. Now, take 1-B of the mandate as analysed in paragraph 5 ante. There being no default, there cannot be a period subsequent thereto. One goes with the other. One existing, the other may exist; otherwise not. Nor can anything be included therein: just as Banerjee J. points out in Rampher Jaiswaf v. Ram Subhag Shaw, (1960) 64 Cal WN 880. Apart from the Interpretation by Lord Watson of 'include' in Dilworth v. Commissioner of Stamps, 1899 AC 99 at pages 105 and 106, just the one quoted in Stroud's Judicial Dictionary, 2nd. edn., volume II, at pages 945 and 946, and also referred to by Banerjee J., it may not perhaps be out of place to notice how an authority on the English language looks at the word:

'include) (comprise ... .... these may becalled a pair of Working and Stylish Words.

When two words have roughly the same meaning, examination will generally reveal a distinction; and the distinction in meaning between the present two seems to be that comprise is appropriate when what is in question is the content of the whole, and include when it is the admission or presence of an item. With include, there is no presumption (though it is often the fact) that all or even most of the components are mentioned; with comprise, the whole of them are understood to he in the list.'

A Dictionary of Modern English Usage by H.W. Fowler, revised by Sri Ernest Gowers, 2nd. edn., 1965, page 275.

In the earlier edition which was Fowler's originalwork, there was a little more:

'..... good writers say comprise when looking at the matter from the point of view of the whole, include from that of the part.' p. 264, 1959 reprint.

The legislature is a proverbial good writer in its own field, no matter that such august body subjected to periodic criticism. And who, in diction, is above criticism? At all events, it is not competent for the Court to proceed on the assumption that the legisature knows not what it says, or that it has made a mistake as in Commissioner for Special Purposes v. Pemsel, (1891) AC 531, 549: per Lord Halsbury. On the contrary, the Court must proceed on the footing that the legislature intended what it has said: Crawford v. Spooner, (1846) 6 Moo PC 1: 4 Moo Ind App 179. Therefore, when the legislature says including, it means just that what is to be included.

9. The whole here, in terms of 1-A and 1-B of the mandate, leaving aside 1-C ancillary to 1-A, is the amount for which the tenant may have made default together with the amount for the period subsequent thereto up to the end of the month previous to that in which the deposit is made, both making an organic whole and an indivisible one too, because of the expression for the period subsequent thereto. It is a period which comes into being, only when there is default, and is therefore spoken of as period subsequent thereto, i.e., subsequent to default. No default, no period subsequent thereto too. Thus, looking at the matter from the point of view of the part, and emphasizing the presence of an item, namely, the amount for the period subsequent to default, in the whole, the legislature has used the word including. Hence, no default being there (as here), there is no such item (an amount for the period subsequent to default) to be included. To put it in another way, the command of the legislature upon the tenant is: 'This is the whole: amount in default together with the amount subsequent to default. And this is the part: the amount subsequent to default. Include this part in the whole when you make the deposit after the suit. But the whole does not exist, no default being there. So the part, coming into being after default and resting on post-default, cannot exist too.

10. As emphasized recently by a Division Bench of this Court in Gopal Banerjee v. Manindra Nath Dey, (1966) 70 Cal WN 864, Section 17 of the Act is a penal section. The landlords, the opposite party before me, must, therefore, bringthemselves clearly within the language of failure to deposit the amount under Sub-section (1). Thus far they have not brought themselves so.

11. I have not overlooked what Mr. Das Gupta has stressed: Renupada Mukherjee J.'s view in Hampher Jaiswal's case, (1960) 64 Cal WN 880 (supra) that the amount for the period subsequent thereto etc. means the amount in respect of which default has been made for the period subsequent thereto. With respect, that cannot be. Let this view be put to test. Say, in this case, the tenant was in default for Aswin. Upon the service of summons on him on Kartick 24, 1366 BS, say on Agrahayan 10, he deposited the Aswin 'rent', the amount in default, plus Kartick 'rent', not in default yet. Such deposit of amount for Kartick fits nicely enough the expression: (the amount for) the period subsequent thereto up to the end of the month (Kartick) previous to that in which (Agrahayan) the deposit was made. But the payment for Kartick on Agrahayan 10 cannot be a default in any event. I therefore prefer, with respect, Banerjee J.'s view in the same case:

'If 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 default, but not in default yet.'

12. This leads Mr. Sen to submit that the decision in Rampher Jaiswal's case, (1960) 64 Cal WN 880 (supra) turns on the validity of the post-suit deposit with the controller and not on the timing of the deposit, the rent for May 1958 having been deposited on June 10 following, only six days after the service of summons upon the tenant on June 4 previous. That indeed is true. Mr. Sen is therefore entitled to say, as he does, that the observation of Banerjee, J., I have gone by, ranks as an obiter dictum. But nothing prevents me from adopting, as I do, the well-reasoned observation on this point of his Lordship, if 1 may say so, with respect.

13. In the Special Bench decision: Siddheswar Paul v. Prakash Chandra Dutta : AIR1964Cal105 , Mr. Sen refers me to, I find support of Banerjee J.'s view in more judgments than one:

'This decision (Hampher Jaiswal's case, (1960) 64 Cal WN 880) is understandable on the footing that (the first part of) 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.': per Sinha J. (as his Lordship then was) at p. 49 of 68 Cal WN: (at p. 115 of AIR).

Again,

'Where on the date the writ of summons was served, there is no amount for which there is default, 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.': per Sinha, J. at P. 50 (of Cal WN): (at p. 115 of AIR) ibid.

Further,

'If the tenant is not a defaulter, the first part of Section 17(1) would not be attracted. . . .',: per P.N. Mookarji, J. at p. 74 (of Cal WN): (at p. 127 of AIR) ibid.

Last,

'In my view the first part of Section 17(1) dues not come into play if there has been no default by the tenant.': per G.K. Mitter, J. (as his Lord-ship then was) at p. 82 (of Cal WN): (at p. 130 of AIR) ibid.

I am therefore unable to hold that Banerjee, J.'s view in Rampher Jaiswal's case, (1960) 64 Cal WN 880 is no longer good law. as Mr. Sen contends. I hold instead, his Lordship's view, good law by itself, has been rendered better law still by the excerpts I have quoted from the Special Bench decision in Siddheswar Pal's case : AIR1964Cal105 .

14. The conclusion I have therefore come to is that the part of Sub-section 1's mandate: 1B as I have put in my analysis in paragraph 5 ante: has no application hereto and can do no harm to the petitioner.

15. Now, take the remaining part of the mandate: 1C. Parts 1A and 1B not applying--and apply they cannot--application of part 1C does not arise. But I notice that at the first blush may look like an incongruity here. Part 1A is the amount in default. The legislative levy of interest at 8 1/3 per cent upon that up to the date of deposit is understandable. The tenant is being penalised for his default. But part 1B, as analysed in paragraph 5 ante, is not the amount in default. Still interest at that rate is payable upon it, such amount in the context being compendious enough to include the amount not in default. Why mulct the tenant in interest, a defaulter though he is not pro tanto? No; to read the mandate so will be to misread it. The terminus ad quem: the limit to which, the interest has to he calculated, is no doubt the date of deposit. But the terminus a quo, the limit from which, the interest has to be calculated, is the date when such amount was payable. So, interest will run only on the amount in default: part 1A of the mandate, not on the amount not in default yet and therefore not payable too: part 1B of the mandate. Thus, no incongruity becomes discernible, if you look a little closely. In sum, no default being here, the first part of Section 17, Sub-section 1, of the Act is not, and cannot, be attracted. There is a consensus of decision to that end. What is much more, Gajendragadkar, C.J., speaking for the court in Kaluram Onkarmal v. Baidyanath : [1965]3SCR34 , lays down the law at p 1915 as under:

'In this connection, it is necessary to bear in mind the fact that Section 17(1) is really intended to give a benefit to the tenant who has committed a default in the payment of rent. The first Dart of Section 17(1) allows such a tenant to pay the defaulted amount of rent together with the prescribed interest in Court within the time prescribed, and such a tenant would not be evicted if he continues to deposit the amount in Court, during the pendency of the suit as required by the latter part of Section 17(1).'

So, there the matter should rest.

16. I now reach the second part of Section 17, Sub-section 1, which opens with 'and shall thereafter'. To Fowler's Modern English Usage again. With a little adaptation, the essential function of thereafter is to make clear the relation of its sentence (shall continue to deposit etc.) to what has gone before (within one month of the service of the writ of summons shall deposit the amount in default etc). 'Thereafter' gives a touch of formality or archaism to the sentence in which it is substituted for the after it: after what has gone before. Now, after what? What has gone Before? Obviously, after the deposit, within one month of the date of service of summons, of (i) the amount in default (ii) including the amount for the period subsequent to such default up to the end of the month previous to the month of the deposit (iii) together with interest on such amount at 8 1/3 per cent a year from the date when such amount was payable up to the date of deposit. That has gone before.

17. Now, there being no default, there cannot be a period subsequent thereto, just as noticed in paragraphs 8 and 9 ante. By parity of reasoning, therefore, there being no default, there can be no period thereafter too. Again, if 'the non-default period', as in part 1B of Subsection 1's mandate (paragraph 5 ante), within the phrase: including the period subsequent thereto, 'on its very terms, excludes its existence apart from and independently of a period of default', to quote P.N. Mookerjee, J. from his Lordship's judgment in Siddheswar Paul's case: at p 63 of (68 Cal WN):: (at p 121 of AIR) a period thereafter excludes its existence too apart from and independently of a period of default. No default, no period subsequent thereto, no period thereafter too. Much more than thereafter is here: 'shall thereafter continue to deposit': governed by the subject: the tenant who may have made default. Continue has a significance all its own, plainly meaning that the tenant shall go on making the deposit in continuation of the deposit he had made for the amount in default, the amount subsequent thereto up to the end of the month preceding the month or the deposit, and interest of 8 1/3 per cent on the amount in default from the date of default to the date of the deposit. But the tenant petitioner before me was not in default ever: neither before Kartick 24 when he received the writ of summons nor on Kartick 24. So, he had not to make any deposit in terms of the first part of Sub-section 1. How could he therefore continue to deposit? How could he therefore go on depositing in continuation of a deposit he had not made and was not called upon to make? Thus, the first part of Sub-section 1 failing--and fail it must--the second part thereof fails too. Apart from and independently of default, the second part cannot show its head as well. The words thereafter and continue in the second part of Sub-section 1, no less the subject of the auxiliary verb in the indicative mood: shall continue residing in the first part, make the second part an organic whole too with the first part, not severable at all. I again remind myself that it is a penal provision I am interpreting The landlords must therefore bring themselves clearly within the language ofSection 17 before they can have the right of the defence of their tenant and adversary against delivery of possession struck out. Unfortunately for them, they have not.

18. It is however said that the view I take runs counter to the law laid down by the Supreme Court in Kaluram's case : [1965]3SCR34 supra. I cannot agree. The excerpt I have quoted from their Lordships' judgment in paragraphs 15 ante makes it clear, on the contrary, that Section 17, Sub-section 1, is really intended to give a benefit to the tenant in default and that such a tenant, that is, a tenant who has committed default, will not be evicted if he continues to deposit the amount. The petitioner before me is not such a tenant. He has not committed default. He has not, therefore, made any deposit, as he is not called upon to do, in terms of the first part of Section 17, Sub-section 1. Ergo, he cannot continue he cannot go on making the deposit, in terms of the second part of Sub-section 1. Not making any deposit, because not obliged to do so, and thereafter continuing to make deposit, go ill together, bringing out in their trial a concept which even a most acrobatic mind cannot conceive of. I can continue doing a thing if I had started doing it earlier. But when I do a thing for the first time, it conveys no sense if you say, I continue to do it. The view I take, therefore, appears to be in consonance with the Supreme Court decision.

19. True it is, as Mr. Sen emphasizes, that the Supreme Court does not stop saying: Section 17, Sub-section 1, is there to give a benefit to a tenant who has committed default and such a tenant earns immunity from eviction if he continues to make the deposit during the pendency of the suit under the latter part (second part) thereof. It says also:

A. 'In our opinion, the scheme of Section 17(1) is a complete scheme by itself and the Legislature has intended that in suits or proceeding to which Section 17(1) applies, the payment of rent by the tenant to the landlord must be made in the manner prescribed by Section 17(1).'

B. 'Even in cases where the tenant might have been depositing the rent with the Controller under Section 21, he has to comply with Section 17(1) before the period prescribed by Section 17(1) has elapsed.'

C. 'The Legislature has taken the precaution of giving the tenant one month's period after the service of the writ of summons on him before requiring him to deposit the amount in Court. The object obviously appears to be that when a suit or proceeding has commenced between the landlord and the tenant for ejectment, and the tenant has received notice of it, the payment of rent should be made in Court to avoid any dispute in that behalf.'

D. 'It is also relevant to remember that in the matter of payment of rent in Court, Section 17(1) has provided that the amount to be paid in future shall be paid by the 15th of each succeeding month, and that means that the date for the payment of the amount has been statutorily fixed which is distinct from the requirement of Section 4. Section 4(2) provides for the payment of rent within the time fixed by contract, but Section 17(1) requires the payment to be made by the15th of each succeeding month whatever may be the contract.'

But it will not be right, in my judgment, to look only to these pronouncements, divorced from what goes before about Section 17, Sub-section 1, being really intended to give a benefit to the defaulting tenant etc. Indeed, these observations are integrally related to that: benefit to the tenant in default and such a tenant protecting himself against eviction by continuing deposit of future rents by the 15th of each succeeding month. Integrally related so, naturally they derive their colour from that too; the concept of a tenant in default, a concept which runs through the whole of the subsection, as it has been my endeavour to bring out in paragraph 5 et seante. Indeed, as a matter of language--and the language could not have been plainer--subsection 1 provides for a tenant who may have made default, not for a tenant who may not have.

20. That apart, the problem before their Lordships of the Supreme Court was the impact of Section 22 on the Section 17: the problem of payment in one forum (controller's) and pressing such payment into service for another (court's) just as it was the problem before the Special Bench of this court in Siddheswar Paul's case : AIR1964Cal105 (supra). That has now ceased to be a problem because of the amendment in the wake of the Supreme Court's decision and recommendation in Kaluram's case, AIR 1989 SC 1909. (See paragraph 4 ante.) The problem before me is quite another: Section 17. Sub-section 1, enacted for the benefit of a defaulting tenant cannot drag within its fold a non-defaulting tenant (as the petitioner before me is) and have its terrors shaken on such a one. Surely their Lordships were not seized of anything like it. Nor was the Special Bench of this Court. Se no more should be read in Sinha, J.'s observation extracted out in paragraph 13 ante and marked A than the context of the case warrants, if I may say so with respect.

21. Mr. Das Gupta refers me to an unre-ported decision in Civil Rules 884 to 886 of 1957: Apurba K. Sinha v. Surendra Narayan Sinha, rendered by Sisir Kumar Sen, J. on December 9, 1958 (Cal). There, the summonses were served on the defendants on July 26, 1958, in two cases and on July 27 following in the third. But the rent for a solitary month: July 1956, was deposited on August 4 next with the controller and not in court. Section 17, Sub-section 1, was not then what it is now. making deposit with the controller too good a deposit. Still his Lordship stretched in favour of the tenants on two grounds: (1) a bona fide mistake coupling with the privilege of the maxim deminimis non curat lex, (2) the landlord having stood by till December 8, 1956, when an application under Section 17, Sub-section 3, was filed after the rent for August to October 1956 had been correctly deposited in court, and thereby having waived the non-compliance with the strict provisions of law. With respect, I cannot go that way. No court can pass by that which, a competent enactment has declared, shall receive effect, on the grounds which commended themselves to his Lordship, in spite of the frank admission made by Sen, J.:

'. . . . strictly speaking, there was non-compliance with the provisions of Section 17(1), .'

22. Having regard to the foregoing considerations, I conclude that Section 17, Sub-section 1, of the Act is only for a tenant who has committed default. The petitioner before me is not such a tenant. He cannot therefore be caught by Section 17, Sub-section 1, and necessarily by the penal provision of Sub-section 3. Thus, in having held the contrary, the learned Judge of the City Civil Court has acted in the exercise of his jurisdiction with illegality.

23. In the result, I make the rule absolute. The point I go by being one of first impression, I direct, each party do pay and bear its costs.

The records be sent down with the utmostexpedition.


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