Sudhindra Mohan Gupta, J.
1. This revision arises out of an order dated 19th January, 1979, passed by Shri M. K. Sen Gupta, the learned Munsif, 2nd Court, Alipore in T. S. No. 414 of 1972, striking out defence of the petitioner against ejectment under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956,
2. This suit was commenced on 20th December, 1972, for ejectment on the ground of default in payment of rents for the months of May to August, 1972 and also on the ground of plaintiffs own use and occupation. The summons being served on 1st January, 1973, the defendant made his appearance on 24th January, 1973. In the written statement the defendant came up with a plea of payment of rent. The defendant having failed to move the Court under Section 17 (2) of the Act the plaintiff was obliged to file an application under Section 17 (3) of the Act on 14th July, 1978. But on 9th August, 1978, an application Under Section 17 (1) of the Act read with Section 151 C. P. Code was filed praying for permission to deposit a sum of Rs. 638/- being Rs. 400/- as arrears of rent and Rs. 238/- as statutory interest, though in the petition, the plea of payment was reiterated. There was also an application under Section 5 of the Limitation Act for condonation of delay.
3. By the impugned order defendant's applications were rejected and the one filed by the plaintiff under Section 17 (3) of the Act was allowed.
4. Mr. Dipankar Gupta, learned Coun-sel for the petitioner argues that thelearned Munsif fell into an error in striking out the defence without going into the question of plea of payment, According to him the plea of payment can be adjudged on evidence at the time of final hearing of the suit, or at least at the time of hearing of the application under Section 17 (3) of the Act. By way of striking out the defence, the defendant has been debarred from raising the question of plea of payment at the time of final hearing. It is further contended by him that the tenant defendant was under no obligation under the facts and circumstances of the case, to file an application either under Section 17 (1) or under Section 17 (2) of the Act. Reliance is placed on the decision of a Division Bench of this Court in the case of Gopal Banerjee v. Manindra Nath Dey, reported in (1966) 70 Cal WN 864. The facts of that case were quite distinct and can be distinguished. In that case the plaintiff alleged that the tenant defendant had defaulted in payment of rents since March 1964. The defendant tenant alleged that the rent for March 1964 was paid to the landlord by way of an adjustment for one month's rent received by the landlord in advance. The point in that case was when a tenant raised the question that the rent already paid in advance and lying with the landlord should be adjusted against the rent of the month for which the defendant was alleged, as March 1964, could be regarded as 'default' within the meaning of Section 17 (1) of the Act. Their Lordships were of the opinion that at the stage of Section 17 (1) such a contention could not make the tenant a defaulter for the purpose of Section 17 (1). That question of default must have to be tried at the suit on proper evidence, documentary and oral, for, in most cases, it would depend on the actual terms of the advance payment the fact of the advance payment, the question of any demand for an adjustment. To strike off the defence under Section 17 (3) on the ground of non-compliance with Section 17 (1) on such a contention of default which must have to await the trial, would in view of their Lordships be illegal. To do so and to strike out the defence at that stage would for ever bar the defendant from raising the question of default and having it tried out.
5. Mr. Ramapati Roy, the learned Advocate for the Opposite Party contends that the petitioner in order to avail ofthe protection under the West Bengal Premises Tenancy Act, should have complied with the provisions of Sections 17 (1) and 17 (2) of the Act, He further contends that apart from failure to deposit rents for the months of May to August, 1972, the tenant committed defaults in payment of rents for the months of February to July 1973, and September 1973, as the deposits for those months with the Rent Controller were invalid.
6. Herein there was no case that a month's rent was lying in deposit with the landlord. After appearance the defendant had been depositing rent month by month, but had not got the plea of payment of rents for four months substantiated. The West Bengal Premises Tenancy Act gives a tenant certain protection from eviction. The plaintiff came up with a specific case in the plaint that the defendant tenant was in arrears of rents for the months of May to August, 1972. In the written statement the defendant took up the plea of payment. But before the filing of application under Section 17 (3) of the Act the defendant took no steps whatsoever to have the matter adjudged, but only on 9-8-78, the defendant sought permission of the Court to deposit Rs. 638/- as the plaintiff was alleged to have failed to grant receipts for the months of rents for four months in question. Thus the Court struck out defence for failure to deposit rents for the months of May to August, 1972, on or before 1-2-1973 within one month from the date of service of summons. Again, after the institution of the suit, the deposits were to be made within 15th of each succeeding month. The provision of Section 17 (1) is not controlled by Sections 21 and 22 of the Act. The decision in the case of Bamapada Lahiri v. Sm. Jyotirmoyee Devi, reported in : AIR1972Cal404 , may be referred to.
7. Section 17 (1) enjoins that the tenant shall 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,
8. It has already been pointed out that the decision in the case of Gopal Banerjee v. Manindra Nath Dey (1966-70 Cal WN 864) (supra) is not applicable to the facts of the instant case, I would accordingly hold that it was incumbenton the tenant petitioner to deposit rents for the months in question or to file an application under Section 17 (2) or appropriate sub-sections in order to avail of protection under the Act. Thus the contention of Mr. Gupta on the point cannot be accepted.
9. Next it is contended by Mr. Gupta that the application under Section 17 (3) having not been filed within 3 years from the date of the service of writ of summons was hopelessly barred by time. According to him under Article 181 of the Limitation Act, 1908, the operation of the article was limited to applications made under C. P, Code, but Article 137 of the Limitation Act of 1963, applies to applications under all acts. In support of his contention he has referred to the decision of the Supreme Court in the case of Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma, reported in : 1SCR996 .
10. In reply it is pointed out by Mr, Roy that Article 137 would not be applicable to any application filed in a pending suit, It could not be intention of the legislature that Article 137 of the Limitation Act, 1963, would be applicable to an application made in a pending suit, an application to strike out the defence of the tenant for failing to comply with any provision of the West Bengal Premises Tenancy Act cannot be governed by any rule of limitation.
11. In the result, the application for revision fails and it stands rejected with costs. Advocate's fees assessed at 5 Gms. The rule is discharged.
12. Let the records be sent down forthwith.