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Sudhir Chandra Ghosh and ors. Vs. Sachindra Nath Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.O. No. 168 of 1982
Judge
Reported inAIR1982Cal267,86CWN635
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17, 17(1), 17(2) and 17(3)
AppellantSudhir Chandra Ghosh and ors.
RespondentSachindra Nath Ghosh
Appellant AdvocateS.N. Bakshi and ;Subrata Nayak, Advs.
Respondent AdvocateTarun Chatterjee, Adv.
Cases ReferredKhadi Gram Udyog Trust v. Shri Ramchandraji Mandir
Excerpt:
- banerjee, j.1. this revisional application was heard as contested application in presence of both the parties. the point involved in this revisional application is whether in adjudicating an application under section 17 (2) of the west bengal premises tenancy act the court is to take cognizance of arrears which are time barred or not, on the point there was an earlier division bench decision reported in (1961) 65 cal wn 1093 (raghu nath singh v. patel & co.). in a case reported in : [1978]2scr249 (khadi gram udyog trust v. shri ramchandra) it was held by the supreme court that while considering a provision of section 20 (4) of the u. p. urban buildings (regulation of let-ling, rent and eviction) act, the supreme court held that the words 'entire amount due' as contained in section 20 (4).....
Judgment:

Banerjee, J.

1. This revisional application was heard as contested application in presence of both the parties. The point involved in this revisional application is whether in adjudicating an application under Section 17 (2) of the West Bengal Premises Tenancy Act the Court is to take cognizance of arrears which are time barred or not, on the point there was an earlier Division Bench decision reported in (1961) 65 Cal WN 1093 (Raghu Nath Singh v. Patel & Co.). In a case reported in : [1978]2SCR249 (Khadi Gram Udyog Trust v. Shri Ramchandra) it was held by the Supreme Court that while considering a provision of Section 20 (4) of the U. P. Urban Buildings (Regulation of Let-ling, Rent and Eviction) Act, the Supreme Court held that the words 'entire amount due' as contained in Section 20 (4) of the Act included rent which has become time barred. Following the said decision the Division Bench of this Court in the case reported in : AIR1980Cal114 (Central Coalfields Ltd. v. Rabindra Nath Dutta) held, inter alia, that the case reported in (1961) 65 Cal WN 1093 (Raghu Nath Singh v. Patel & Co.) was not properly decided and in any case has been overruled by the Supreme Court judgment as hereinbefore stated. After the judgment was delivered by the Division Bench, however, the Hon'ble single Judge in a case reported in : AIR1981Cal352 (L. N. Shah v. D. P. Karmakar) at page 846 (of Cal WN): (at p. 356 of AIR) held that the Supreme Court is clearly distinguishable and the Supreme Court has not by implication overruled the decision of our High Court reported in (1961) 65 Cal WN 1093. When the same matter came up before the Division Bench, the Division Bench referred the matter to the learned Chief Justice for constitution of a Special Bench for hearing of the present revisional application. The Hon'ble Chief Justice having constituted the Bench, the matter was placed before us for hearing.

2. Mr. S. N. Bakshi on behalf of the petitioner contended firstly that in Section 17 of the W. B. Premises Tenancy Act there are no restrictions for the period of default in the four corners of the said section, secondly, he argued that Section 17 was enacted to give the benefit to the tenant on condition that if the tenant wants to avoid striking out his defence against delivery of possession he must have to deposit the amount specified under section or if there is a dispute of the amount under Section 17 (2) of the Act may raise it by art application under Section 17 (2) of the Act. If is argued by Mr. Bakshi that limitation bars the remedy but does not extinguish the debt which still remains in force and if payable the creditor or in this case landlord may recover the debt in some other way. The bar of limitation only extinguishes the remedy by way of suit but the debt still remains due,

3. Mr. Tarun Chatterjee on behalf of the opposite party, however, contended that Section 17 is not only for the benefit of the tenant but also for the landlord. Mr. Chatterjee contended that the decision reported in : [1978]2SCR249 (Khadi Gram Udyog Trust v. Shri Ramchandra) has no manner of application in the present case as the provision of the W. B. Premises Tenancy Act is quite different from Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, which was interpreted by the Supreme Court in : [1978]2SCR249 . It is argued by Mr. Chatterjee that the Division Bench judgment reported in : AIR1980Cal114 (Central Coalfields Ltd. v. Rabindra Nath Dutta) is not correct, inasmuch as, their Lordships of the Division Bench could not import the word 'entire' into the body of Section 17 as the said section does not contain the word. Mr. Chatterjee further contended the Hon'ble single Judge in the case reported in : AIR1981Cal352 (L. N. Saha v. D. P. Karmakar) was of the opinion and rightly so that the judgment of : AIR1980Cal114 does not deal with Section 17 (2) at all. It only deals with Section 17 (1). It is, therefore, argued that the provision of Section 20 (4) of the U. P. Act and the scheme of the section are quite different and therefore the Supreme Court decision has no manner of application.

4. Before we discuss those decisions cited at the Bar it is relevant for us to consider the history of the tenancy legislations in our State beginning from 1950. The W. B. Premises Bent Control (Temporary Provisions) Act, 1950 which came into force on 30th March, 1950. The said legislation was enacted in order to make better provision for the control of rents of premises in Calcutta or certain other areas. Section 12 of the Act provides for the grounds on which and which alone the tenant can be evicted from the tenanted premises. The marginal note of section is for protection of a tenant against eviction which provides a non obstante clause, namely, 'notwithstanding anything to the contrary to any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired: Provided that nothing in the sub-section shall apply to any suit for decree for such recovery of possession'............12 (1) (i) provided 'subject to the provisions of Section 14 where the amount of two months' rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 10.' Section 14 of 1950 Act runs as follows:--

'14 (1). If in a suit for recovery of possession of any premises from the tenant the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (i) of Section 12, the court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and a three eights per centum per annum from the day when the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate) on or before a date fixed in the order.

(2) Such date fixed for payment shall be the fifteenth day from the date of the order, excluding the day of the order.

(3) If within the time fixed in the order under Sub-section (i), the tenant deposits in the court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the premises, shall be dismissed by the court, in default of such payment the court shall proceed with the hearing of the suit:

Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in Clause (i) of the proviso to Sub-section (i) of Section 12 on three occasions within a period of eighteen months. (4) If the tenant contests the suit as regards claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any, and on the failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so.

(5) The power given under Sub-section (4) may be exercised by courts of appeal with necessary adaptation'.

5. The W. B. Premises Rent Control (Temporary provisions) Act. 1950 was repealed and West Bengal premises Tenancy Act of 1956 was enacted and came into force on 31st of March, 1956. Section 13 (1) runs as follows:

'13 (1). Protection of tenant against eviction:

Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely,.......,....(i)where the tenant has made a default in payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly'. Sections 17 (1) and 17 (2) of the West Bengal premises Tenancy Act, 1956 also run as follows:--

'17. When a tenant can get the benefit of protection against eviction.-

(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of Sub-section (2), within one month of the service of the writ of summons on him or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance deposit 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 the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall there after continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

(2) If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (1), deposit in court the amount admitted by him to be due from him together with an application of the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the court shall-

(a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the dale of such preliminary order, deposit in court or, pay to the landlord the amount so specified in the preliminary order and

(b) having regard to the provisions of this Act, make as soon after the preliminary order as possible, a final determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order'.

6. In Section 17 (1) of the Act it has been provided that on a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13 the tenant shall, subject to the provisions of Sub-section (2) within one month of the service of the writ of summons on him or where he appears in the suit Or proceeding without the writ of summons being served on him, within one month of his appearance deposit 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 theend of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate. If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable.

7. We are not at the present moment required to consider the other provisions of the said section for answering the reference. Sub-section (2A) provides that an application can be made by the tenant for the extension of the period and the court may by order extend the time specified in Sub-section (1) or Sub-section (2! for the deposit or payment of any amount referred to therein by instalment. Section 17 (2B) provides for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) or Sub-section (2). It must be stated that there were number of amendments to this section from 1950 and the last amendment was in 1969 in the present section.

8. The question, therefore, is and which has been argued by both the parties whether in making any deposit as hereinbefore stated under Sub-sections (1) and (2) of Section 17 the rent which has been already barred is to be deposited or only the rent which is not barred is to be deposited under section 17 (1) and or section 17 (2) of the Act.

9. In (19611 65 Cal WN 1093 (Rahu Nath Singh v. Patel & Co.) the Division Bench of this Court held, inter alia, that under Section 17 of the W. B. Premises Tenancy Act, 1956 does not require the tenant to deposit or pay any amount in respect of time barred arrears of rent. Their Lordships considered that it is not a duty of the tenant to pay or he is not required to deposit or pay any amount in respect of rent which have been assigned by the plaintiff-landlord to a stranger. Similarly he is not required to deposit or pay any amount in respect of time barred arrears of rent which are not recoverable from him on account of bar of limitation.

10. It appears to us that since a rent is assigned to a stranger the rent is not recoverable as such but if a stranger wants to file a suit against a tenant he will have to pay it as a person to whom the tenant is a debtor in respect of a debt which cannot be suit for rent but a money suit. Therefore the bar will certainly apply in so far as the said case is concerned. In our opinion, the learned Judges read the words 'legally payable' as enforceable under S, 17 (2) when the word is only payable. Their Lordships also held that the word 'payable' is of somewhat vague import but in the context of the section it means 'legally enforceable.' In our opinion, in the context of the history of the legislation and in the context of earlier legislation it is quite clear that the word 'legally' cannot be read into the section as we have already stated hereinbefore. In 1950 Act Section 12 (1) (i) 'legally' payable was in the section itself. It is quite clear and it is to be found in the statute itself that the tenant is to deposit an amount of rent legally payable and Section 14 read with the context it is clear that the section provides that the rent 'legally payable' under Section 14 is a section by which the landlord is given power to apply for an order on the tenant-defendant to deposit month by month the rent at the rate it was last paid and also arrears of rent and if such payment are made then the landlord may also apply to withdraw the deposited amount, if not made, the defence against the ejectment has to be struck out In the present provision of the W. B. Premises Tenancy Act Section 13 does not say anywhere that the amount due may be legally payable. Section 17 on the other hand provides that within one month from the date of the service of writ of summons on the tenant or within one month from the date when he appears without the writ of summons the tenant must deposit or pay to the landlord or to the controller an amount calculated the amount last paid. The Sub-section in Section 17 (2) also refers to Section 17 (1) where there is any dispute as to the amount of rent payable by the tenant. Section 17 (3) provides that if the tenant fails to pay any amount referred to within the time specified the court shall order the defence and the proceeding of the hearing of the suit. In our view as the words 'legally payable' have been deliberately omitted from the sub-section by the legislature in Section 17 or for that matter Section 17 (1) and (2) we cannot read the words 'legally payable' into Section 17 (1) and/or (2).

10A. In order to consider the effect of the Supreme Court decision on the present rent in the W. B. Legislation, it is convenient for me to quote the relevant Section 20 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The said section runs as follows :--

'20. Bar of suit for eviction of tenant except on specified grounds. -- (1) Save as provided in Sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner.

Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant.

(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:--

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:--

Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act (No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words 'four months' in this clause shall be deemed to have been substituted by the words 'one year.' (b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;

(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it.

(d) that the tenant has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;

(e) that the tenant has sublet in contravention of the provisions of Section 25, or as the case may be, of the old Act, the whole or any part of the building;

(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry or condoned the conduct of the tenant;

(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased.

(3) (Omitted).

(4) In any suit for eviction on theground mentioned in Clause (a) of Sub-section (2),if at the first hearing of thesuit the tenant unconditionallypays or tenders to the landlordor deposits in Court the entire amountof rent and damages for use and occupation of the building due from him(such damages for use and occupationbeing calculated at the same rate asrent) together with interest thereon atthe rate of nine per cent perannum and the landlords' costs of thesuit in respect thereof, after deductingtherefrom any amount already depositedby the tenant under Sub-section (1) of Section 30,the Court may, in lieu of passing decree for eviction on that ground, pass anorder relieving the tenant against hisliability for eviction on that ground;

Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. Explanation -- For the purpose of this sub-section-

(a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served On the defendant.

(b) the expression 'cost of the suit' includes one-half of the amount of counsel's fee taxable for a contested suit.

(5) Nothing in this section shall affect the power of the Court to pass a decree on the basis of an agreement. Compromise or satisfaction recorded under Rule 3 of Order XXIII of the first Schedule to the Civil P. C. 1908 (Act No. V of 1908).

(6) Any amount deposited by the tenant under Sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Civil P. C. 1908, shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits.'

In our opinion, the provision of Section 20 (4) of the Act gives the benefit to the tenant if he deposits the entire amount of rent etc. etc. on the very first date of the hearing of the suit unconditionally. This provision is also applicable in subsequent rent suit filed by the landlord on the ground of default only. It must be remembered that the tenant must deposit on the very first date of the hearing of the suit unconditionally the entire amount of rent. In our Legislation under Section 17 (1) of the Act a tenant must deposit the arrears of rent within one month from the date of service of the writ of summons and if no summons is served within a month from the date of appearance, in that matter such amount is to be deposited under Section 17 (1) of the Act. Under Section 17 (2) of the Act, the defendant-tenant can apply for determination of the rate of rent and the amount in arrear and till the dispute is decided the admitted amount of rent is to be deposited by the tenant. In that view of the matter, in our opinion, the Rent Act of West Bengal gives the tenant a protection only if he is a defaulter and if he pays the amount within the period allowed under Sections 17 (1) and 17 (2) of the Act. In that respect, in our opinion, there is no material difference in the carriage of suit between the landlord and tenant. Section 17 (1) of the West Bengal Premises Tenancy Act applies in respect of all ejectment suits on any ground mentioned in Sections 17 and 13 and Section 20 (4) of the U. P. Act only applies in respect of the ground for default of payment of rent.

11. In the Supreme Court decision reported in : [1978]2SCR249 , (Khadi Gram Udyog Trust v. Shri Ramchandra) it has been held as follows (Para 4):--

'It will be seen that under Section 20 (2) of the Act the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with Section 20 (2). The tenant can take advantage of the benefit conferred by Section 20 (4) only when he pays the entire amount of rent due as required under Section 20 (4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred it will be a debt due though not recoverable, the relief being barred by limitation. In Halsbury's Laws of England (3rd Edn.) Vol. 24 at p. 205, Article 369 it is stated 'except in cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a creditor whose debt is statute-barred has any means of enforcing his claim other than by action or set-off, the Act does not prevent him from recovering by those means. The Court of Appeal in Curwen v. Milburn (1889) 42 Ch. D 424 Cotton, L. J. said: 'Statute-barred debts are dues though payment of them cannot be enforced by action.' The same view was expressed by the Supreme Court in Bombay Dying and . v. State of Bombay, : (1958)ILLJ778SC where it held that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by Section 28 of the Limitation Act, which does not apply to a debt. Under Section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a Full Bench decision of the Patna High Court in Ram Nandan Sharma v. Smt. Maya Devi, : AIR1975Pat283 Unlwalia, C. J. as he then was, has stated 'there is a catena of decisions in support of what has been said by Tek Chand, J. in First National Bank Ltd. v. Sant Lal, that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right.' The law is well settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of Section 20 (4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under Section 20 (2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of Section 20 (4). As he has not deposited the entire amount due the protection is no more available. We agree with the view taken by the trial court and the High Court of Allahabad that the words 'entire amount of rent due' would include rent which has become time-barred.'

12. The principles laid down in the Supreme Court decision applies on all fours in the provision of Section 17 (1) and (2) of the Act. The Supreme Court made it clear that on the scheme of the Act it is clear that the statute confers a benefit to a tenant to avoid the decree of eviction. Similarly in Section 17 of the West Bengal Premises Tenancy Act it confers a benefit for protection against eviction. This marginal note gives a clue which is to be found in the body of Section 17. Subsequent amendments were made in order to protect the tenant even when he has failed to comply with the provisions and his defence was struck off. Even Section 17 (1) which was amended as far back in 1959 gives power to the court to stay the decree passed on account of failure of availing of those benefits. Inasmuch as when the legislature found that the tenants are having hardship because of monetary difficulty they have tried to amend the Act to protect the tenant. It appears to us that the Act and amendment therein make it clear that tenant who is a defaulter cannot be protected unless he pays the amount of default and the principle is 'pay and stay.' If tenant does not pay or default in making the payment the protection available to the tenant under the Act for the benefit of the tenant cannot be availed of. In our opinion, the Supreme Court judgment clearly lays down the principle on which the tenant can have the benefit but not without payment. In our opinion, therefore the Hon'ble Judges of the Division Bench in the case reported in (1961) 65 Cal WN 1093 (Raghunath v. Patel & Co.) were wrong in importing the words 'legally payable' into Section 17 of the Act. In the case reported in (1961) 65 Cal WN 1093 (Raghunath v. Patal & Co.) it will be clear from the said decision that their Lordships considered section 14 (4) of the West Bengal Premises Tenancy (Temporary Provision) Act. It was held by their Lordships that the decision under Section 14 read with Sub-section (4) of the West Bengal Premises Rent Control (Temporary Provision) Act, 1950 and the decision made thereto are of historical interest. Only the structure of Section 17 of the W. B. Premises Tenancy Act was in many respects materially different from Section 14 of W. B. Rent Control (Temporary provision) Act, 1950. We respectfully agree to this view expressed by the Hon'ble Division Bench and we are, therefore, really at a loss to find their Lordships importing the words 'legally payable' in Section 17 of the Act when it has not been provided in Section 17 (1) the words legally payable' as we find in 1950 Act. The Hon'ble single Judge in the case reported in : AIR1981Cal352 (L. N. Sana v. D. P. Karmakar) distinguished the case reported in : AIR1980Cal114 on the ground that their Lordships only considered Section 17 (1) of the Act and not 17 (2). In our opinion, the word 'amount' in Section 17 (1) and in Section 17 (2) must have the same meaning and cannot have a different meaning. In the context of Section 17 the amount of arrears which is barred will have to be deposited and the court will have to consider all the amounts whether it is barred or not and come to a finding of the actual amount deposited if the tenants want to avail the protection of Sec, 17 of the Act,

13. In the case reported in : AIR1981Cal352 (L. N. Saha v. D. P. Karmakar) at p, 846 (of Cal WN) (at p. 356 of AIR) the Hon'ble single Judge held that Section 17 (1), (2) and (2A) provide the foundation for the landlord's right to recover arrears and current rent during the pendency of the ejectment suit in the trial court and for the discharge of the tenant's liability to pay arrear and current rent, This position in out opinion, cannot be accepted to be correct. Section 17 (1), (2) and (2A) does not give any foundation to the landlord but only gives relief to the tenant. Section 17 (1) and (2) confer benefit to the tenant who may make an application for availing the benefit contained in the section but will only be entitled to it if the tenant deposits all the arrears of rent including (time-barred arrears) and the current rent during the pendency of the ejectment suit in the trial court as otherwise his defence against delivery of possession is liable to be struck out under Section 17 (3) of the Act. It is clear even from the judgment of the Hon'ble single Judge that Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Section 17 (1), (2) and (2A) of our Act are the same though the dissimilarity have not been enumerated. If there is similarity, we are bound therefore to follow the principle laid down by the Supreme Court. The Supreme Court sought to lay down the principle that Section 20 (4) of the said Act conferred a benefit on the tenant to avoid eviction decree by complying with the requirements of Section 20 (4) of the Act. If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under Section 20 (2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of Section 20 (4) on deposit of the entire amount due as contained in Section 20 (4) of the Act. In our opinion, in this judgment the principle laid down applies on all fours in respect of Section 17 (4) read with Section 17 (I) and other sub-sections of Section 17 of the Act.

14. It is argued by Mr. Chatterjee that Section 20 (c) of the Act only applies to the defaulting tenant and not any other grounds upon which the eviction may be prayed for by the tenant In so far as we are concerned with our Act, Section 17 (1) of the Act is applicable in the ejectment suit on any ground whatsoever, as the wording of Section 17 (1) of the Act makes it clear that 'on a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13..................' In our opinion, Section 17 (4) of the Act is only applicable in a matter for a decree of delivery of possession passed on the ground of default only. Section 17 (4) runs as follows:--

'17 (4). If a tenant makes deposit or payment as required by Sub-section (1), Sub-section (2) or Sub-section (2A) no decree for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as i' may deem fit to the landlord : Provided that a tenant shall not be entitled to any relief under this subsection if having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.'

15. It appears that if the tenant makes deposit or payment as required by Sub-section (1) or (2) or (2A), no decree or order for delivery of possession on the ground of default in payment of rent shall be made by the Court; but it does not cover any other cases. Therefore a tenant is only entitled to the benefit of protection if he has made a default in payment of rent under Section 13 (1) (i) of the Act and if he has complied with Section 17 (1), (2) and (2A) of the Act. In that view of the matter, in our opinion, we respectfully differwith the view expressed by the Hon'ble single Judge.

16. The case reported in (1961) 65 Cal WN 1093 was not properly decided and if there is any doubt whatsoever that has been set at rest by the Supreme Court in the case reported in : [1978]2SCR249 , (Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir).

17. Mr. Chatterjee relied on the case reported in : AIR1976SC1637 (New Delhi Municipal Committee v. Kalu Ram). In that judgment the Supreme Court held that the power to recover arrears of rent under the Public premises (Eviction of Unauthorised Occupants) Act, 1958 by the Estate Officer is only limited to which is 'legally recoverable.' In this case the Estate Officer under Section 7 of the Act wanted to recover arrears of rents for more than 7 years from the tenant. Their Lordships, held that the procedure taken by the Estate Officer for recovery of rent is barred by limitation.

18. In the present case this is not a suit by the landlord for recovery of rent for more than 3 years but a suit for eviction on the ground of default and necessary requirement wherein an application was made by the tenant under Section 17 (2) of the Act and as such we are here concerned with the interpretation of Section 17 of the Act and what amount is payable by the tenant in order to protect himself from the penal provision of striking out the defence against the delivery of possession. 'We are of the opinion that the word 'payable' herein does not mean 'legally payable.' Therefore the payment of amount in so far as the rent is concerned must be, according to us the arrears including the time-barred rent. In the case reported in (1933) 60 Ind. App 13: (AIR 1933 PC 63) filed by the Company in Liquidation, their Lordships held what the Judicial Committee held that the bar of limitation is 3 years but this decision, in our opinion, does not apply in the facts of the present case.

18A. The case reported in : AIR1978MP165 (FB) on which Mr. Chatterjee relied, in our opinion, is clearly distinguishable. In the M. P. Act, Section 12 (1) refers to the whole arrears that 'that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him.' In view of the particular expression, their Lordships of the Full Bench of the Madhya Pradesh High Court held that the decision reported in : [1978]2SCR249 , (Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir) in terms does not apply to the Madhya Pradesh Rent Act.

19. Mr. Chatterjee relied upon the case reported in : AIR1975Pat283 (FB) (Ram Nandan Sharma v. Mava Devi) and contended that under the Bihar Buildings (Lease, Rent and Eviction) Control Act the arrears of rent is only confined to period after institution of and during the pendency of the suit. In the said case it was held that under Section 11 of the Act the landlord can make an application for arrears of rent falling due during the period of the suit. In that view of the matter it is quite clear that the wordings of Section 17 of our Act and the Section 11 of the Bihar Act are quite different. in Section 17 (1) and (2) of our Act the tenant must deposit the arrears of rent prior to the suit in the Court within one month of the service of the writ of summons on him or within one month of his appearance In Court or with the Rent Controller or pay to the landlord. Therefore the case reported in : AIR1975Pat283 (FB) is of no help to us.

20. The case reported in : AIR1977All399 was a case which was decided by the Supreme Court in the case reported in : [1978]2SCR249 , (Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir). In the said judgment, in paragraph 17. it has been stated as follows:--

'17. It will thus be seen that the word 'due' was held to have a special connotation in the context of the situation that the provision provided a special procedure for recovery of money without creating any new right and that the provision was discretionary. The court may well refuse to act under it. The word 'due' occurring in Section 20 (4) of the Rent Control Act of 1972 has entirely a different context. It occurs in a section which provides, not an alternative procedure for recovery of arrears of rent, but which confers upon the tenant a right to relief against eviction. This right is founded upon the condition that the rent due must be paid. It confers no discretion on the tenant. The provision is explicit and mandatory.

Unless the condition is fulfilled, the right to relief against eviction does not accrue'.

21. In our opinion the Supreme Court has upheld the view taken in the Allahabad High Court's judgment, we are of the opinion that there is no material difference between Section 17 (4) of the W. B. Act and Section 20 (4) of the U. P. Act. The principle laid down in the Supreme Court case reported in : [1978]2SCR249 , (K. G. U. Trust v. Shri Ram Chandraji Mandir) upheld the Allahabad High Court judgment the case reported in : AIR1977All399 (Khadi Gram Udyog Trust v. Ram Chandraji Mandir)

22. Mr. Chatterjee argued that after the decision is made in the case report-ed in (1961) 65 Cal WN 1093, (Raghunath v. Patel & Co.) there are number of amendments of Section 17 of the Act. But still the legislature did not amend the word 'payable' to mean 'legally payable'. It was argued by Mr. Chatterjee that the legislature knew what decision has been taken in the case reported in ( (1961) 65 Cal WN 1093). (Raghunath v. Patel & Co.) and it may be said that the interpretation given by the judgment was a proper and the legislature did not think to amend the same. In our opinion as we have already stated in the context and historical background of the legislation it is quite clear that when the legislature in their wisdom omitted the words 'legally recoverable' it is no answer to say that the subsequent amendment, the legislature did not think it fit to make amendment of the statute if the legislature intended otherwise. We have not, therefore, dealt with the cases referred to by Mr. Chatterjee on that point, namely. : AIR1973Cal529 , : [1970]76ITR471(SC) , : AIR1978Cal457 (FB) (Renuka Pachal v. Chapa Guha Neogi) and : AIR1977Cal110 (FB) (Gurudas Biswas v. Sibasankar Seal). In the case reported in : AIR1980Cal114 (Central Coalfieds Ltd. v. Rabindra Nath Dutta) the Hon'ble Judges held that the entire amount due including the time barred rent must be deposited. It will be found by the amendment the word 'total' was used in Sections 17B and 17C of Act. The word 'entire' used by the Division Bench only means the total arrears due including the time-barred rent and it will have to be deposited under Section 17 (1) read with Section 17 (2) of the Act,

23. Mr. Chatterjee referred to AIR 1940 Mad 385 (FB) (Nana Rao v. Arunachalam). In our opinion the Full Bench decision of the Madras High Court does not support the contention of Mr. Chatterjee. The Full Bench in the said judgment held that 'if the words of a later statute differ materially from those of an earlier one, effect should be given to the change, especially where to do so would be to advance the policy underlying it. If the language fails to achieve the object in view, it can only be regretted but not helped. But the court need not be astute to adopt a construction which would tend to bring about a frustration of the objective. If the words of a latter statute differ from those of an earlier one, the Court in construing the later, is not bound by decisions under the earlier, even though it relates to the same subject matter'. We have already held in the present case with reference to the earlier Act that the word 'legally recoverable' has been omitted by the legislature in the present statute and therefore in our opinion the learned Judges of the Division Bench were right in holding that the rent which was time barred will have to be deposited under Section 17 (1) of the Act.

24. In the circumstances, I hold that under Sections 17 (1) and 17 (2) of the W. B. Premises Tenancy Act the tenant is under obligation to deposit the rent which may have been time barred if he is to avail of the protection against striking out the defence against delivery of possession Under Section17 (3) of the Act.

25. In the present case the Division Bench did not issue a rule in the matter but both the parties were present before the Division Bench as also before us on notice being issued by the Division Bench and the arguments were advanced in the matter. In view of our finding that the tenant is liable to deposit the rent which has become time barred, the learned Subordinate Judge will have to reconsider his order and re-hear the matter afresh and decide the same in accordance with law.

B.N. Maitba, J.

26. I agree. But it is necessary to make some observations.

27. The important question is, if the provisions of Section 20 (4) of the U. P. Act and of Section 17 of the W. B. Premises Tenancy Act, 1956, are substantially the same. It is true that the words 'entire arrears' appearing in Section 20 (4) of the U. P. Act do not find place in Section 17 of the West Bengal Act. Nevertheless the various circumstances be dealt with to arrive at a decision whether or not the bench case of Raghunath Singh v. Patel and Company in (1961) 65 Cal WN1093 still holds the field.

28. Firstly, according to the provisions of Section 17 of the West Bengal Act, the landlord can only receive the rent a? there is no scope for him to pay court fees and ask for recovery of the arrears. The amount to be deposited by the tenant has been specified in Sub-section (1) of Section 17. Only in case of a dispute, Sub-section (2) comes into operation. After the determination of the dispute under the Sub-section (2), the amount payable by the tenant is substantially the same, as stated in Sub-section (1) of Sec-lion 17 of the Act. It can be next seen that the choice is entirely with the tenant whether he will comply with the provisions of Section 17. That sub-section imposes a statutory obligation on him to pay or deposit the arrears for avoiding the defence against delivery of possession being struck out, for in such an eventuality the landlord has the only right of invoking the provisions of Sub-section (3) of Section 17 for striking out such defence. So. Section, 17 provides for a conditional protection to the contesting tenant.

29. The Limitation Act merely bars the remedy but not the right of the landlord nor does it bar the debt. One cannot lose sight of the fact that previously, in the Temporary Rent Act of 1950, the expression used was 'legally payable'. But the word 'legally' was dropped from the Section 17 of the later West Bengal Act of 1956. In the Full Bench case of Nana v. Arun in AIR 1940 Mad 385 at page 392, it has been stated that where the words of a later statute differ materially from those of an earlier one, effect should be given to the change, especially where to do so would be (to) advance the policy underlying it. The court should not adopt a construction which would tend to bring about a frustration of the objective. Moreover, the use of the expression 'for the period for which the tenant may have made default'' in Sub-section (1) of Section 17 is a pointer that there is no restriction about the period of default. It covers the entire period of default and is wide enough to indicate that the tenant is enjoined to deposit the entire arrears.

30. In the Privy Council case of Hansraj Gupta v. Official Liquidator in (1933) 60 Ind App 13 at p. 23 : (AIR 1933 PC 63 at p. 66) the Liquidator was concerned only with the money due from a contributory. In the case of New Delhi Municipal Committee v. Kaluram in : AIR1976SC1637 , the Estate Officer had power to recover the dues from the defaulter, whereas in the West Bengal Act, 1956, no such procedure has been provided for the landlord's benefit.

31. In the case of Bombay Dyeing . v. State of Bombay, : (1958)ILLJ778SC , it has been stated that the statute of limitation only bars the remedy, but does not extinguish the debt except in eases provided for in Section 28 of the Act.

32. Reference has been made to the provisions of Section 17 (4) of the W. B. Act by both the sides. The provisions of this Sub-section (4) speak of a relief to the defaulting tenant and the same is analogous to those of Section 114 of the Transfer of Property Act.

33. The provisions of Section 17 of the West Bengal Act of 1956 and of Section 20 (4) of the U. p. Act of 1972 are, therefore, substantially the same. There is no reason to import the word 'legally' in Section 17 of the West Bengal Act, though that word was specifically omitted by the Legislature when the Act came into operation. It is thus held that the bench case of Raghunath Singh v. Patel and Company ( (1961) 65 Cal WN 1093) (supra) has been impliedly overruled and in a case covered by the provisions of Sub-sections (1), (2) and (2A) of Section 17 of the West Bengal Act, the tenant is required to deposit the entire amount including the time-barred debt.

Amitabha Dutta, J.

34. I agree with the order proposed by my Lord. But I want to explain in my own way, my point of view.

35. The question at issue arises in a revisional application by the plaintiff, which is directed against Order No. 16 dated 24-9-1980 of the learned Sub-ordinate Judge, Siliguri in O. C. Suit No. 17 of 1979 for ejectment of the defendant as a premises tenant on the grounds mentioned in Clauses (f), (ff) and (i) of Sub-section (1) of Section 13 of the W. B. Premises Tenancy Act. 1956, the defendant having been a defaulter in payment of rent at Rs. 250/- per month payable according to English calendar month for the suit premises from January, 1970. The defendant filed an application under Section 17 (2) of the said Act claiming set off of Rs. 29,239/-. The plaintiff opposed that application. The learned Subordinate Judge negatived the defendant's plea of set off and determined the amount payable by the defendant as Rs. 9,000/- being equivalent to arrears for three years. The plaintiff moved this Court in revision against the said order on the ground that the trial court has acted illegally and with material irregularity as in determining the amount payable it ought to have included the time barred arrears of rent also within such amount.

36. The learned Judges of the Division Bench while hearing the revisional application as Civil Order No. 168 of 1982 felt that in view of the conflict between the Bench decision in the case of Central Coalfields Ltd. v. Rabindra Nath Dutta, : AIR1980Cal114 and the decision of the learned single Judge in the case of L. N. Saha v. D. P. Karmakar. : AIR1981Cal352 on the point whether the earlier Bench decision of this Court in the case of Raghunath Singh v. patel & Co., (1961) 65 Cal WN 1093 stands impliedly overruled by the decision of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Man-dir, : [1978]2SCR249 , the matter should be referred to a larger Bench to resolve the conflict. This is how the matter came up before this Bench.

37. In my view, it is correct to hold that under the provisions of Section 17 (1) read with (2) of the W. B. Premises Tenancy Act, 1956 (hereinafter called the 1956 Act), the tenant defendant is required to deposit the arrears of rent for the period for which he may have made default including the time barred arrears. But I do not think that the Supreme Court's decision in Khadi Gram Udyog Trust's case : [1978]2SCR249 has impliedly overruled the Bench decision of this Court in Raghunath Singh's case, (1961) 65 Cal WN 1093 in which it has been held that Section 17 (2) read with Sub-section (1) of the 1956 Act does not require the tenant to deposit or pay any amount in respect of time barred arrears of rent. The reasons are these. The Supreme Court had no opportunity in that case to apply its mind to and analyse the provisions of Section 17 of the W. B. premises Tenancy Act, 1956. The Supreme Court after considering the provisions of Section 20 (1), (2) and (4) of the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 has decided that the words 'entire amount of rent due' in Section 20 (4) would include rent which has become time-barred. Their Lordships of the Supreme Court observed as follows (at page 289):

'On a consideration of the scheme of the Act it is clear that the statute has conferred a benefit on the tenant to avoid decree for eviction by complying with the requirement of Section 20 (4)'. Secondly the provisions of Section 17 (1) and (2) of the 1956 Act are not in pari materia with Section 20 (4) of the U. P. Act. The relevant expression as to arrears payable are different. There is no provision in the U. P. Act corresponding to Section 17 (1) of the 1956 Act which applies to every suit for ejectment on any of the grounds mentioned in Section 13 (1) and which requires the tenant to deposit both arrear rent and current rent to get the benefit of protection against eviction on the ground of default under Section 17 (4). Again a tenant can get the relief under Section 20 (4) of the U. P. Act more than once. But under Section 17 (4) of the 1956 Act read with its proviso a tenant shall not get any relief if having got such relief once he defaulted in payment of rent for four months within a period of twelve months,

38. The learned advocate for the petitioner has submitted and in my view, rightly that the decision in Raghunath Singh's case does not lay down the law correctly for the following reasons. Section 17 (1) read with (2) of the 1956 Act does not provide for the procedure for recovery of arrears of rent at the instance of the landlord. Section 17 imposes a statutory obligation on the tenant to deposit or pay rent in accordance with the provisions thereof if he wants to avoid a decree for eviction on the ground of default in payment of rent when it is the first occasion of such default or if he wants to avoid his defence against delivery of possession being struck out whatever be the ground in Section 13 (11 of the Act on which the suit is based. In other words Section 17 grants conditional protection to the tenant. If he chooses to avail of the protection he had to comply with the conditions. The landlord cannot apply for recovery of arrears of rent. There is no restriction on the period for which the tenant may have made default in Section 17 (1) or (2) (a) of the Act and bar of limitation is foreign to Section 17.

39. The learned single Judge in L. N. Saha's case : AIR1981Cal352 has referred to the following two decisions which may be discussed. In New Delhi Municipal Committee v. Kaloo Ram, : AIR1976SC1637 , the recovery of arrears of rent was at the instance of the Estate Officer under Section 7 of the Delhi Public Premises (Eviction of Unauthorised Occupants) Act, 1958 and so it has been held that if the person in arrears raises a dispute as to the 'arrears of rent payable' the Estate Officer in determining the amount of arrears payable, cannot insist On payment of arrears barred by limitation. The Supreme Court has interpreted the word 'payable' in Section 7 by holding that 'in the context in which it occurs, (it) means legally recoverable'. Thus in the aforesaid case the recovery was at the instance of the Estate Officer representing the landlord. In Hans Raj Gupta v. Official Liquidator etc.. (1933) 60 Ind App 130: (AIR 1933 PC 63) the Privy Council interpreting the expression 'money due' to the company in Section 186 of the Indian Companies Act, 1913 held it as confined to money due and recoverable in a suit by the company and so the bar of limitation would apply. In the summary proceeding under the said section in the winding up court against debtor contributories every objection is just as open to the person sought to be charged as it would have been if the suit had been brought by the liquidator in the company's name for the money. These decisions in the context of the provisions of the particular Acts are distinguishable and do not furnish authority for the proposition that 'the amount of rent payable' in Section 17 (2) of the 1956 Act should be confined to an amount legally recoverable by the landlord in a suit for recovery of arrears of rent. The meaning of that expression is to be gathered from its context. It has been observed by Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover 1957 A. C. 436 at page 461 'For words and particularly general words cannot be read in isolation: their colour and content are derived from their conext. So it is that I conceive it to be my right and duty to examine every word of a statute in its context and I use context in its widest sense......' The legislative history of Section 17 and the context in which the expression 'the amount of rent payable' appears in Section 17 (2) of the 1956 Act will be presently explained.

40. There is no provision in Section 17 of the 1956 Act enabling the landlord to make an application for recovery of the arrears of rent and in this respect of scheme of the 1956 Ad is basically different from the scheme of the West Bengal premises Rent Control (Temporary Provisions) Act. 1950 which it replaced, as under Section 14 (4) of the earlier Act the landlord could apply for an order on the tenant to deposit the arrear and current rent. In the earlier Act of 1950 Section 14 (1) provided that 'the court shall determine the amount legally payable by the tenant and which is in arrears taking Into consideration any order made Sub-section (4)'. But under Section 17 (2) of the 1956 Act the tenant may by an application raise dispute as to 'the amount of rent payable' and in that case the court shall 'having regard to the rate at which the rent was last paid and the period for which default may have been made 'make a preliminary order' 'specifying the amount of rent due from the tenant' (the word used is due and not recoverable) and as soon as thereafter as possible having regard to the provisions of the Act make a final order determining the rate of rent and the amount to be deposited or paid by the tenant. It is well settled that if the words of a later statute differ materially from those of an earlier one effect should be given to the change to advance the policy underlying it. There is no express or implied restriction of 'the period for which the tenant may have made default' in Section 17 (1) or of 'the period for which default may have been made' in Section 17 (2) (a) of the 1956 Act. The court cannot disregard the plain and natural meaning Of those words in determining the amount of rent payable. 'It is sometime more important to emphasize the obvious than to elucidate the obscure', The Court cannot limit the said period to three years preceding the date of the suit. Such confinement of the period will also be not justified as the determination of the amount payable is made at the instance of the tenant seeking protection in terms of Section 17 and not on the application of the landlord. The procedure is not a source or foundation of the landlord's right to recover the arrears. It gives the tenant option to avail of the conditional protection. If he chooses not to avail of it and his defence against delivery of possession is struck out as a consequence, he can still contest the suit by cross-examining the plaintiff's witnesses on all points and making submissions on the merits of the plaintiff's case before the court. It has been so held in the Bench decision of this Court in the case of Dayamoyee Sudhakhan v. Dal Singer Singh, (1980) 1 Cal HN 498: (AIR 1979 Cal 3321. Having regard to this scheme of Section 17 I find that it will be wrong to construe the expression 'the amount payable' in the context in which it is used to mean the amount legally recoverable in an action by the landlord and to interpret the word 'period' in Section 17 (1) and (2) (a) so as to limit and confine it to three years.

41. The principle underlying Section 114 of the Transfer of Property Act granting relief against forfeiture for non-payment of rent may not be germane to the interpretation of Section 17 of the 1956 Act, the basic structures of the two provisions not being identical. It cannot be said that because the tenant does not get relief against eviction when the suit is on a ground other than the first default, he cannot be called upon to pay the time barred arrears. The legislature can reasonably enact that the tenant must fulfil his obligation to pay the arrears due to the landlord before he can be permitted to pursue his defence against delivery of possession in the suit. The 'amount of rent payable' means what the tenant should pay as rent. Rent does not lose its, character by being in arrear for over three years. So the principle laid down in the Bench decision in the case of Dayadebi v. Chapala Debi, : AIR1960Cal378 does not come into the picture. In Khadi Gram Udyog Trust's case, : [1978]2SCR249 the Supreme Court has approved of the principles that statute barred debts are dues though payment thereof cannot be enforced by action and that if the creditor has any means of enforcing his claim other than by action or set off, law does not debar him from recovering it by those means,

42. The decision in the case of Mankunwar Bai v. Sunderlal, : AIR1978MP54 (FB) and : AIR1978MP165 (FB) relied on by the learned advocate for the respondent are distinguishable as the pivot on which the decisions turn is the word 'default' in the expression 'the period for which the tenant may have made default' in Section 13 (1) of the M. P. Accommodation control Act, 1961 which refers to the default described in Section 12 (1) (a) of the Act meaning non-payment of 'the whole of the arrears of rent legally recoverable from him' within two months of service of the notice of demand.

43. It has been submitted by the learned advocate for the respondent that Raghunath Singh's case (1961-65 Cal WN 1093) was decided in June, 1961 but the legislature has not changed the provisions of Section 17 (1) and (2) of the 1956 Act although Section 17 was amended several times thereafter and that a decision of long standing on the basis of which many persons have arranged their affairs should not be disturbed. But in my view, legislative inaction is no ground for perpetuating an erroneous construction of the statute and when disturbance of a long standing decision will not have the effect of reopening transactions relating to title to immovable property or imposition of any unjust liability on persons, the superior court will not hesitate to overrule it as in the instant case to remove doubt expressed about it in a subsequent decision and resolve conflict of subsequent decisions on the same point for bringing about certainty in the law.

44. In conclusion, I find that Raghunath Singh v. Patel & Co. (1961) 65 Cal WN 1093 has not been impliedly overruled by the decision of the Supreme Court in Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir, : [1978]2SCR249 . But I hold that Raghunath Singh's' case was not correctly decided and that a tenant raising a dispute under Section 17 (2) read with Section 17 (1) of the 1956 Act is required to deposit the arrears for the period for which he may have made default including the time barred arrears as payment of such arrears can be and has been made a condition of protection granted to the tenants under Section 17 of the Act,

45. I, accordingly, agree that this reference should be answered in the manner suggested by my Lord and I concur in the order proposed by him.

46. We, therefore, hold as follows:--

47. We hold that the decision reported in (19611 65 Cal WN 1093 (Raghunath Singh v. Patel & Co.) was wrongly decided. We respectfully agree with the view taken by the Division Bench in the case reported in : AIR1980Cal114 (Central Coalfields Ltd. v. Rabindra Nath Dutta) and differ with due respect to the views of the Hon'ble single Judge taken in the case reported in : AIR1981Cal352 (L. N. Saha v. D. P. Karmakar).

48. (Mr. Justice P. K. Banerjee and Mr. Justice B. N. Maitra) We hold that by implication that the judgment reported in (1961) 65 Cal WN 1093 (Raghunath Singh v. Patel & Co.) is overruled by the Supreme Court judgment reported in : [1978]2SCR249 (Khadi Gram Udyog Trust v. Shri Ram Chandraji Mandir).

49. (Mr. Justice Amitabha Dutta) The case reported in (1961) 65 Cal WN 1093 (Raghunath Singh v. Patel & Co.) has not been impliedly overruled by the decision of the Supreme Court in Khadi Gram Udyog Trust v. Shri Ramchandraji Mandir reported in : [1978]2SCR249 .

50. Let the order be communicated to the Court below for disposal of the application pending before him in accordance with law as hereinbefore laid down.


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