1. Two common questions arise for decision in these two Rules which were issued at the instance of the defendant in two suits for eviction. Thefirst one is whether the tenant is entitled to get relief under Section 114 of the Transfer of Property Act, in a suit for eviction under the provisions of the W. B. Premises Tenancy Act. The learned Munsif held that this relief is not open to him, and he is quite right in that view.
2. The second question that arises is as to whether the learned Munsif was justified in rejecting his application filed under Sections 8 and 9 of Act XXXIV of 1969 (West Bengal Premises Tenancy (Second Amendment) Act, 1969), Section 8 amends Section 21 of the Original Act and Section 9 amends Section 22. Section 13 of Act XXXIV of 1969 would show that the amendments by Sections 8 and 9 'shall have effect in respect of suits including appeals which are pending at the date or commencement of this Act.' Mr. Bhattacharjee, learned Advocate appearing on behalf of the petitioners submits that the suits are still pending, though the defences against the delivery of possession had been struck out and that under the recent amended Sections 21 and 22 referred to above, the deposits made by the tenant would be quite valid and the order under Section 17 (3) striking out the defence against delivery of possession shall have to be re-opened. It would appear that one of the main grounds as to why the application under Section 17 (3) was allowed, was that the tenant did not make the deposit of rent in the office of the Rent Controller after the institution of the suit within the 15th of the succeeding month. Mr. Bhattacharjee contends that in view of the amended Sections 21 and 22, the deposits would be valid and those two sections would control actually Section 17 (1) of the Act. I am not in a position to accept these propositions as correct. Sections 21 and 22 occur in Chapter IV which relates to 'Deposit of Rent'. Sec. 17 occurs in Chapter III which relates to suits and proceedings for eviction. It is clearly stated in Section 18 (1) that after the institution of the suit the tenant 'shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to rent at that rate.' Though thereafter there have been a number of amendments to Section 17 by successive Acts, still this position has not been affected at all. It is obvious, therefore, that after the institution of the suit irrespective of Section 21 or 22, the deposit must be made within the 15th of each succeeding month. In other words, this provision under Section 17 (1) is not controlled by Sections 21 and 22 as amended up to date. This view was also taken by my learned Brother Gupta, J. in C. R. Nos. 3896 and 2897 of 1968 (Cal) between the same parties and I respectfully agree with the observations made therein, though that derision was before Act XXXIV of 1969 had come into operation. The fact, therefore, remains that the petitioner has not made the deposit even in the office of the Kent Controller after the institution of the suit within the 15th of each succeeding month. In the circumstances, the order striking out the defence under Section 17 (3) cannot be reopened.
3. The Rules, therefore, fail and are accordingly discharged. Each party will bear its own costs in both these Rules.