Anil Kumar Sinha, J.
1. This Rule is directed against an order striking out the defence of the defendant petitioner under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act).
2. A suit has been filed by the plaintiff (alleging that she is the owner by purchase of premises No. 13 Gangadhar Babu Lane Calcutta) for ejectment of the defendant who is in occupation of one ground floor room of the above premises at a monthly rental of Rs. 50/- as a tenant on the ground of default of payment of rent since May 1966 and on the further ground that the room is reasonably required by the plaintiff for building and rebuilding purposes and also for her own use and occupation. The defendant petitioner appeared and since then he is contesting the suit by filing written statement He has also deposited rents for May 1966, October 1966 and July, 1969 within one month from the date of service of summons with an application under Section 17 (1) of the Act, with permission of the Court, together with statutory interest for the arrears.
3. On 19-6-70 the plaintiff has filed an application under Section 17 (3) of the Act for striking out the defence of the present petitioner against delivery of pos-session on the allegation that he has not paid any amount whatsoever on account of arrears of rent and also that he has not deposited the current rent. In the written statement one of the objections taken is that there is no relationship of landlord and tenant between the plaintiff and the present petitioner which was also repeated in the objection filed by the present petitioner to oppose the application under Section 17 (3) of the Act. The trial Court found that the deposits already made with the permission of the Court were valid deposits but since he has neither deposited arrears of rent after May, 1966 nor has filed any application under Section 17 (2) raising any dispute as to arrears for the said months, although 'it may be said that he has deposited, as stated by him in his written statement, all rents upto June, 1969 excepting May, 1966 to the credit of the plaintiff's predecessor-in-interest named Bilayet Hossain in the office of the Rent Controller,' the trial Court refused to give any relief and struck out the written defence. This is how the petitioner felt aggrieved and obtained the present Rule.
4. Mr. Mukherjee says that it was the duty of the trial Court to decide the question raised by the petitioner both in his written statement and written objection against the application under Section 17 (3) of the Act relating to the absence of relationship of landlord and tenant between the plaintiff and the petitioner before any order could be passed under Section 17 (3) on the application. Reliance is placed on a decision of this Court reported in (1961) 65 Cal WN 149 (Biswanath Roy v. Annapurna Roy). Mr. Roy Choudhury appearing on behalf of the opposite party in repelling such contention, submits, in the first place, that having once admitted payment of rent in the name of the plaintiff under Section 17 (1) of the Act, the defendant petitioner was estopped from challenging the title of the plaintiff as his landlord. It is said that such deposit with an application under Section 17 (1) of the Act is a clear admission on the part of the tenant defendant that the plaintiff is his landlord.
5. In the second place his argument is that not having raised any dispute under Section 17 (2) of the Act, in any event, the defendant tenant is disentitled to raise any objection as to absence of relationship of landlord and tenant on an application made by the plaintiff under Section 17 (3) of the Act. In aid of his contention he relies on a Bench decision of this Court reported in ILR (1967) I Cal 449 (Tirthapati Sen v. Paresh Nath Sen).
6. As regards the first contention I do not think that the question of estoppel or admission arises at all, for in spite of depositing the rent under Section 17 (1) of the Act, the defendant, under the Statute, is entitled to raise a dispute under Section 17 (2) of the Act within the time specified therein for determination of the amount of rent. It is now well-settled that the dispute will include amongst other things the question of absence of relationship of landlord and tenant. Such deposit of rent under Section 17 (1) again cannot operate as an admission within the meaning of Section 17 of the Indian Evidence Act for the amount supposed to be deposited in Court is not rent but 'an amount calculated at the rate of rent at which it was last paid,..... .'. This apart, for very same reason, that in spite of such deposit he is entitled to raise a dispute, clearly shows, that these deposits under Section 17 (1) cannot be used as an admission on the part of the tenant that the plaintiff is necessarily his landlord.
7. As regards the second contention of Mr. Roy Choudhury, it is clear from the decision in Tirthapati Sen's case (supra) that even on an application under Section 17 (3), it is the duty, nevertheless, of the Court to decide the issue as to whether there is the relationship of landlord and tenant between the parties, if it is raised. Mr. Roy Choudhury however submits that even so, the issue was not pressed but from the judgment itself there is nothing to indicate, although there is the written objection of the defendant, that the defendant did not press this issue at the hearing of the application.
8. Accordingly, both the contentions of Mr. Roy Choudhury fails. This, apart, it appears that the trial Court did not enter into the question as to whether the deposits of rent upto 1969 with the Rent Controller were valid deposits, though made in the name of Bilayet Hossain. In fact, there is nothing also to indicate from the judgment upon what materials the Court concluded that the tenant defendant was in arrears since May, 1966. Considering all these, it must be held that the order passed by the trial Court suffers from serious infirmities and cannot therefore be sustained as valid.
9. Accordingly, I set aside theorder complained of and make the Ruleabsolute. The matter will now go back tothe trial Court for a fresh decision of Section 17 (3) application in accordance withlaw and in the light of the observationsmade above.
10. There will be no order for costs. Let the records go down to the Court below without delay.