Arun K. Mukherjea, J.
1. This is an appeal from a judgment and decree dated Januarv 11 1963 passed by the Judge. 6th Bench City Civil Court by which the defendant was ordered to be evicted from a flat in Bentinck Street. The facts and circumstances of the case are briefly as follows:
2. Sometime in October, 1959 the defendant became a tenant in respect of a flat in the second floor of premises No. 29B, Bentinck Street. Calcutta (hereinafter referred to as the said premises) at a monthly rent of of 95 per month. The flat consisted of two rooms The rent was pavable according to the English calendar month. There is some controversy as to who exact-tv were thf landlords and also as to the manner in which the rent was payable. The plaintiffs' case is that there were three landlords viz. Kartick Chandra Saha, Ganesh Chandra Saha and Tarak Chandra Saha and that rent was pavable in advance within the 5th o every current month. According to the defendant on the other hand Kartick Chandra Saha alone was the landlord and there was no stipulation that rent was to be said in advance on the fifth of the current month According to the plaintiffs the defendant's tenancy was determined by a notice of ejectment dated 19th April 1961 issued by the plaintiffs' advocate calling upon the defendant to quit and vacate the said premises and to deliver up peaceful and vacant possession of the same to the plaintiffs on the expiry of May, 1961. It is alleged that the defendant was a defaulter in regard to payment of rent having failed or neglected to pay rents to the plaintiffs since December 1960. It is further claimed that the defendant having made more than four defaults in the course of 12 months is not entitled to any protection under the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the said Act) The defendant failed to comply with the notice of ejectment and this suit was thereafter filed in the City Civil Court for Khas possession of the premises by eviction of the defendant, its agents and servants
3. In the written statement the defendant raised the following pleas in defence:
(i) The plaintiffs did not have a right to sue
(ii) Kartick Chandra Saha alone was the landlord of the defendant and not the three plaintiffs.
(iii) The rent was never payable in advance on the fifth day of the current month as alleged
(iv) The notice of ejectment was neither legal nor valid,
(v) The defendant was not a defaulter.
4. On these pleadings the following issues were framed for determination at the time of trial
(1) Is the defendant a defaulter in payment of rent?
(2) Is the rent payable in advance on the 5th day of the current month?
(3) Is the ejectment notice valid, legal and sufficient?
(4) Is there any relationship of landlord and tenant between the parties?
(5) What relief or reliefs are the plaintiffs entitled to?
5. Evidence was adduced on behalf of the plaintiffs as well as on behalf of the defendant before the learned trial Judge who after hearing the oral evidence and considering the documents proved at the time of trial recorded his findings on the issues Except as to Issue No. 2 all his findings were adverse to the defendant and the learned Judge, on the basis of his findings, decreed the suit in favour of the plaintiffs The defendant has now come up in appeal.
6. Mr. Dipankar Ghosh appearing for the defendants before us challenged the findings of the learned Judge mainly on three grounds. His first ground was that only Kartick Chandra Saha was the landlord of the defendant so that both the noti-ces of ejectment which were served on behalf of three persons as well as the plaint which was framed on behalf of three plaintiffs were bad in law and the suit was not, therefore, maintainable. Secondly, Mr. Ghosh argued that there had been no default in the payment of rents as alleged. Thirdly, Mr. Ghosh argued, his client was entitled to relief under the new West Bengal Premises Tenancy (Amendment) Ordinance, 1967. Wt shall deal with these contentions of Mr. Ghosh one by one.
7. The first argument of Mr. Ghosh turns on the question as to whether in fact the defendant's landlord was only Kartick Chandra Saha or whether all the plaintiffs were his landlords. It appears that the appellant paid rent right from the beginning to Kartick Chandra Saha and also obtained receipts from Kartick Chandra Saha. Only one man's name appears consistently on all the rent receipts There is nothing to indicate that the person whose name appears on the rent receipts was signing for and on behalf of others as well. The entire correspondence between the parties prior to commencement of litigation was also between the appellant and Kartick Chandra Saha. Thus, there was an exchange of letters sometime in September. 1960 regarding certain repairs which the appellant wanted to be done in suite No 8 at 20B, Bentinck Street. In course of that correspondence all the letters that were written by the tenant were addressed only to Kartick Chandra Saha and the replies to those letters were also sent by a lawyer writing on behalf of Kartick Chandra Saha. Indeed, the lawyer concerned, namely, one Bidhan Chandra Roy Advocate speaks of the repairs as being done by 'his client'. All throughout the correspondence he refers only to Kartick Chandra Saha and uses the word 'client' in the singular number. If there had been three landlords and if Kartick Chandra Saha had been negotiating or carrving out correspondence with the appellant on behalf of the three landlords, the lawyer at least would have written on behalf of all the three landlords Kartick Chandra Saha in his evidence tries to explain why only his name appears on the rent bills by saying that he as the eldest brother is the 'Karta' of the family and he signed the rent bills in that capacity He admits, however, in course of criss-examination that the cheque for the sum of Rs 570 paid by the appellant in advance at the time of inception of the tenancy was in his name. Shri T. K. Parekh who eave evidence on behalf of the appellant started his evidence by saying Kartick Chandra Saha was the sole landlord and stoutly denied that there were three landlords There is no cross-examination of the appellant on this point. There is not even a suggestion made on behalf of the plaintiffs during the cross-examination of T. K. Parekh that there were in fact three landlords and Kartick Chandra Saha was merelv acting as a representative. This lapse in the cross-examination is, however, balanced by the fact that the defendant's lawyer had also failed to put the defendant's case to Kartick Chandra Saha in course at cross-examinations clearly and categorically. Indeed, as we shall see presently, both parties almost competed with each other in their failure to put the most vital and relevant questions to the other side at the time of cross-examination.
8. In this state of evidence it does appear that the defendant was all the time dealing with the only one landlord. The learned Judge after considering the evidence on this point avoids recording any categorical finding that there were, in (act, three landlords. The learned Judge, however, decided the two issues bearing on this point viz Issues Nos. 3 and 4 against the defen-dant He gave a lot of importance to two documents One was a letter dated 1st October. 1959 alleged to have been written by T. K. Parekh on behalf of the appellant's firm to the three plaintiffs. A copy of that letter was sought to be proved at the time of trial and was accepted by the learned Judge as evidence and marked as Exhibit 6. The other document was the Conveyance dated 23rd April, 1945 by which the plaintiffs bought the premises from one Raj Rajeswari Dasi. The learned Judge also relies on the fact that in the letter written by the appellant's advocate in reply to the eiectment notice dated 19th April, 1961 no protest is made that the ejectment notice had been served by the three landlords, although in reality, there was only one landlord. This letter has been marked at Exhibit 2 and is to be found at page 1 of the Supplementary Paper Book filed on behalf of the appellant. The learned trial Judge though he did not record a clear verdict as to the number of landlords says in his judgment that even if there had been only one landlord, the notice of ejectment cannot be said to be defective. That was a notice in which the person who is admitted by the defendant as landlord is one of three persons on whose behalf the notice had been served and one can say that the inclusion of the names of two other persons was unnecessary and a mere surplusage. The learned Judge also mentions with approval the statement of Kartick Chandra Saha that he had signed the rent-receipt in the capacity of a 'karta' of the family. Indeed, the learned Judge finds that the suit would have been defective if the two brothers had not been made parties
9. Mr. Ghosh challenges all the findings and observations of the learned Judge on this aspect of the case both as to facts as well as on law. With regard to Exhibit 6 it was contended that the document had not been proved at all. Mr. Ghosh pointed out that even the learned trial Judge did not rely on the contents of that document and had even rejected it. According to this document one of the terms of tenancy provided that 'each month's rent will be paid in advance i.e. each month's rent will be paid on or before the 5th of the month in which the rent is payable without any reduction whatsoever.' A distinct issue was raised as to this term of tenancy in Issue No. 2 and on that Issue the learned trial Judge came to a finding in favour of the appellant and held that rent was not payable in advance on the 5th day of the current month. It was clear therefore that the learned trial Judge had rejected the evidence of Exhibit 6.
10. Mr. Ghosh strenuously argued that Exhibit 6 had been improperly received as evidence by the learned Judge. After carefully considering Mr. Ghosh's arguments we are inclined to accept his contention on this point. It may be remembered that Exhibit 6 purports to be a copy of a letter addressed by the appellant to the three plaintiffs. The original of this letter, if such a letter had really been written, should be with the plaintiffs. And yet only a copy of it was tendered and proved, Kartick Chandra Saha while giving evidence sought to prove this document in the following manner:
'The defendant wrote a letter to me at the time they took the tenancy. That letter is lost. This is the true copy of the original. Exhibit 6 marked'
The document was thereupon admitted by the learned Judge and accepted as an Exhibit in spite of the appellant's objection. The question is whether in the circumstances of the case a copy of the letter could go in as evidence Section 65 of the Indian Evidence Act gives the circumstances when secondary evidence relating to a document may be given. One of the circumstances when under that section, secondary evidence may be given of the existence, condition or contents of a document is when the original has been destroyed or lost. That section however deals merely with the foundation that has to be laid for the reception of the secondary evidence. To admit the secondary evidence it is not sufficient to show merely that the original letter is lost But the secondary evidence itself must be of the nature described in Section 63 of the Indian Evidence Act Section 83 runs as follows:
''63. Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original in mechanical process which in themselves ensure the accuracy of the copy and copies compared with such copies;
(3) copies made from or compared with the original:
(4) counterparts of documents as against the parties who did not execute them:
(5) old accounts of the contents of a document given by some person who has himself seen it.'
11. There is nothing to show that the copy which has gone into the records as Exhibit 6 satisfies the requirements of Section 63 of the Indian Evidence Act, Kartick Chandra Saha describes it as 'true copy' but that is an expression unknown to Evidence Act. Only that copy would be admissible which is made from or compared with the original. All 'true copies' may not necessarily satisfy this qualification. In the absence of evidence that Exhibit 6 had been made from or compared with the original. Exhibit 6 should not have been received as evidence. In Shrimati Rani Haripria v. Rukmini Devi, (1892) 19 Ind App 79 the Judicial Committee of the Privy Council refused to accept as evidence a document which had gone in as a copy of another document, on the ground that none of the attesting witnesses had been called and no attempt made to identify the exhibit as being a copy of the document which had been exhibited. In the result, it is apparent that Exhibit 6 was in fact inadmissible as evidence. Mr. Ghosh commented, not without justification that it is not at all surprising that the learned trial Judge himself was not prepared to rely on it when he was called upon to decide Issue No 2 on the strength of this exhibit. In this connection, Mr. Ghosh further argued that there is no evidence to show that a sufficient search had been made to trace out the original and until such a search has been made and proved in evidence even the foundation for leading secondary evidence as provided for in Section 65 of the Indian Evidence Act is not properly laid. Mr. Ghosh contended that in order to show that a document is lost it is not enough to make a statement that the letter is lost. It is necessary on the other hand to show that there was a diligent search to recover the lost document. In support of this proposition Mr Ghosh relied on certain observations made in Jaldu Ananta Raghuram Arya v. Rajah Bommadevara AIR 1958 Andh Pra 418. It was held in that case that since every deed is the best evidence of its contents it non-production will necessarily raise the suspicion in the mind of the Court and great care and circumspection would be necessarv to decide whether there has been real'y a genuine loss Section 65 of the Indian Evidence Act permits the leading of a secondary evidence only where the ori-ginal document has been destroyed or lost. There must therefore, be a sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all resources and means in search of the document which were available to him Though this is a question of discretion left to the trial court and an appellate court would not ordinarily interfere with the exercise of such discretion, the appellate court would certainly interfere if it finds that the trial court has accepted the loss of the document as a fact without taking into consideration the prerequisite conditions that are required by the Evidence Act. These principles on which Mr Ghosh relied are to our mind beyond any possible challenge. The principles have been enunciated in Halsbury's Laws of England Vol. XV, 5th Edition, at pp. 358-359 in the following manner:
ere a document has been lost or destroyed, secondary evidence of its contents is admissible. The court must be satisfied that the document existed, that the loss or destruction has in fact taken place and that reasonable explanation of this has been given. Thus a bona fide and diligent search must have been made in the place where the instrument would most properly be found, but not necessarily in every possible place; nor need the search have been made recently or for, the purpose of the cause.'
In view of these conditions we are of the opinion that Exhibit 6 is completely valueless as a piece of evidence and the learned trial Judge was wrong in placing any reliance on it.
12.The other documentary evidence on which the learned trial Judge relied is Exhibit 2 which is a reply of the appellant to the notice served by the plaintiffs. The learned trial Judge says that assuming that the defendant had only one landlord, there is no mention of this fact in the reply addressed to the appellant's lawyer. Mr. Ghosh's answer to this criticism is that the appellant's lawyer had indicated in his reply that the ejectment notice was bad in law According to Mr. Ghosh his client was under no obligation to traverse all the allegations in the notice or to point out ths defect of the notice
13.After having dealt with these two exhibits, namely. Ext. 6 and Ext. 2 which form practically all the documentary evidence on this point, we pass on to a consideration of the oral evidence. The most salient and perhaps the most curious feature of this case is that cross-examination of the witnesses of both the parties was of the most perfunctory nature. Thus, as I have already said, though T. K. Parekh giving evidence on behalf of the defendant said that the defendant was tenant only of Kartick and not of all the three plaintiffs who had filed the suit, there was no cross-examination at all of Parekh on this point. Not even a suggestion was made to him that all the three plaintiffs were the landlords and not Kartick alone. Similarly, though Kartick Chandra Saha said that the three brothers had let out the premises in suit and that he alone had signed the rent-bill in his capacity as 'karta' there is not a word of cross-examination or suggestion challenging this statement Since both parties are equally at fault in the matter of cross-examination it is not safe to base any inference on the fact that there was no cross-examination on this subject. So far as evidence regarding the course of dealing between the parties goes, it appears from the correspondence between the parties e.g. cheques and rent receipts that the appellant always dealt only with Kartick Chandra Saha. Even when a formal letter on some legal issue was addressed on behalf of thp landlord to the appellant, that letter was written by the lawyer concerned on behalf of Kartick Chandra Saha alone and not on behalf of all the three brothers. There is not an iota of evidence to show that defendant ever knew about the existence of the three brothers or at least about their claims to be the landlords or owners of the house. The appellant had clearly stated in his written statement that he had only one landlord and the plaintiffs were not his landlords and an issue was raised on this point. Unless the plaintiffs succeed in proving the tenancy of the appellant under three land lords, the plaintiffs cannot succeed in this case.
14.Mr. Banerjee contended that the appellant should not be allowed to take the plea that the appellant had only one land lord in view of the fact that in its application under Section 17(1) of the said Act the defendant had asked for the permission of the Court to pay rent in favour of all the three plaintiffs This application which had been made before the Rent Controller upon an affidavit was not tendered as evidence in the trial Court. Mr. Ghosh argued that the application in question was not a part of the records of this case and cannot, therefore, be relied upon He contended that if the respondents had sought to rely on this document his client could have easily explained the document. It wo uld be uniust, according to him, to rely on a document which was never produced as evidence at the time of the trial and which the appellant had no opportunity to explain. Mr. Banerjee strenuously argued that since this was an affidavit and since the affidavit had been made in connection with the proceedings in this suit, it was not necessary to formally tender this affidavit as evidence and that we should treat the affidavit as evidence. This contention of Mr. Baneriee is not correct. Section 1 of the Evidence Act provides that the Act applies to all judicial proceedings in or before any court but not to affidavit presented to any court or officer'. Affidavits are not even included in the definition of evidence in Section 4 of the Evidence Act. Therefore, affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act Affidavits can be used as evidence only under Order 19 of the Civil Procedure Code- See Firm Shamsunder Raikumar v. Bharat Oil Mills : AIR1964Bom38 Section 3 of the Indian Evidence Act provides that subject to certain conditions and limitations the court may at any time order any fact to be proved by affidavit. The conditions and limitations to this power are to be found in Order 19 of the Code of Civil Procedure. In Dominion of India v. Rupchand, AIR 1953 Nag 169 in a suit against the railways for damages, the plaintiff sought to rely on an ffidavit of the District Commercial Inspector, G. I. P. Railway made by him in answer to the interrogatories. This was, however, disallowed; it was held that the affidavit did not ipso facto become evidence unless tendered. See also Marneedi Sat-yam v. Venkataswami AIR 1949 Mad 689 at p. 690 and Kamakshya Prosad Dalai v Emperor : AIR1939Cal657 . In all these cases, it is clearly established that an affidavit per se does not become evidence in the suits but that it could become evidence only by consent of the party or where it is specially authorised by a particular provision of law. In the present case therefore the statements contained in the affidavit made by the appellant under Section 17 of the said Act cannot be looked into. Such statements cannot become evidence automatically because the affidavit has neither been proved nor tendered.
15.As for the learned Judge's argument that since one of the plaintiffs is admitted by the appellant to be the landlord, one can take the names of the two others as surplusage. Mr. Ghosh argued, -- and in our opinion argued correctly, that the contract that has been pleaded in this case is different from the contract that has been proved by evidence and the plaintiffs can only succeed on the case that he makes out in his evidence. There can be cases where three plaintiffs found their claim on one and the same fact and though two of them fail to prove their claim on the basis of that fact even so the third plaintiff may succeed. It does not matter that more than one person tried to found a claim on the same fact; the only party that will succeed in such a case is the party which succeeds in establishing his claim on that fact. Here, however, the situation is entirely different. The contract that has been pleaded is a contract in which the defendant is a party on one side and the three plaintiffs are the party on the other side. On the other hand, the contract that seems to have been proved in evidence is a contract in which one of the parties was the appellant and the other party was Kartick Chandra Saha. This contract is not the same contract as the alleged contract between the appellant and the three plaintiffs. Therefore, one cannot say that the contract that has been proved is the same as the contract that has been alleged. Therefore. Kartick cannot succeed in his plea that the names of the other two brothers which appear as co-plaintiffs in the plaint or in the notice should be treated as surplusage. Mr. Ghosh went further: he said that Kartick cannot even take the plea that if he has failed to prove his case, he ought to succeed on the defendant's admission in the written statement. That is to say, Kartick cannot invoke the principle laid down in Srinivasan's case, : 2SCR277 where it had been held that a plaintiff even though he fails on the case that he made out in the plaint can succeed on the case admitted by he defendant. The rule in Srinivasan's case, : 2SCR277 must be taken as confined to cases where liability is clearly admitted without reservations. In this case, however, the defendant does not admit liability at all. He contests practically every allegation of the plaintiffs and on top of everything, the defendant says: 'These plaintiffs are not my landlords at all and who are they to eject me?' It cannot be said, therefore, that the written statement of the defendant contains any admission of liability. It is clear that the evidence on which the learned trial Judge relies does not support the plaintiffs case at all. Let us assume for the sake of argument that the premises in question belonged to the three plaintiffs and Kartick Chandra Sana had no right to let out the premises in his own name alone. Even so, the three plaintiffs cannot say that they are the landlords of the defendant. Tenancy is a matter of contract. If the other plaintiffs were nowhere in the picture when the tenancy agreement was made and if the defendant did not know about the existence of the other two brothers or at least did intend or contemplate entering into an agreement of tenancy with them, it is impossible to argue that there was, in fact, an agreement of tenancy between the defendant and all the three plaintiffs. The two other plaintiffs must seek for relief against Kartick. They can move against the defendant but in that case they must ask for a different kind of relief and they cannot found their claim for relief on an alleged contractual relationship between themselves and the defendant when, in fact, no such relationship existed. In these circumstances, one cannot escape the conclusion that the plaintiffs were not at all the landlords of the defendant Issue No. 4, therefore, should have been derided in favour of the appellant.
16.On practically similar argument Mr. Ghosh argued that the notice of eject-ment served on the appellant was invalid A copv of the notice is to be found at page 28 of the Paper Book It is a notice addressed by an advocate writing under instructions and on behalf it the three plaintiffs. The notice described these three plaintiffs as the landlords. The notice categorically states that the defendant was holding as a tenant under all the three persons, named in the notice. viz Kartick, Ganesh and Tarak But as we have found iust now, there was in fact, no such tenancy as is mentioned in the notice. How, then, could the notice terminate a different tenancy? It is clear that a tenant who hands over possession to a person who is not his landlord may jeopardise himself seriously in the eye of law. Therefore, unless all the three persons on whose behalf the notice had been sought to be served were actually the landlords, the defendant could not in law be called upon to comply with that notice. Looking at the matter in this light, one ust conclude that even the notice was invalid
17.Before parting with this aspect of the case I should mention another argument of Mr. Ghosh which was advanced to meet the learned trial Judge's suggestion that the two superfluous names of Ganesh and Tarak may be ignored. Mr. Ghosh argued that in the case of a document, unless there is an ambiguity or repugnance in the document itself the Court has no power to strike out any words or phrases from that document The doctrine of false demonstration which has been often described as the 'blue-pencil theory' authorises a court in certain circumstances to strike out from a deed a few repugnant and insensible words. But in the present case the words (i.e. the names of two additional plaintiffs) in themselves are quite sensible and the document taken at its face value is perfectly consistent. The Court cannot ignore the plain meaning of the document and strike out a few words only to make the document conform to the actual facts of the case. The court's power is obviously confined to correct such inconsistency and insensibleness as appear from intrinsic evidence. Thus, wrong grammar or spelling may be corrected: words that are merely insensible or that are repugnant or that have been obviously left in by mistake or that have been immaterial and surplusage and even whole provisions may be rejected. But at the same time effect should be given to every word which does not appear to be left in by mistake. Alterations can be done only when clearly required to avoid absurdity, repugnancy or inconsistency See Halsburv's Laws of England (3rd Edition). Vol. 11. pp. 413-414. After all a notice of ejectment is a very formal document attended with serious consequences for that tenant Therefore, a notice should be very strictly construed. There is nothing in the present case which would warrant the application of the so-called 'blue pencil theory' for hanging the notice to suit the facts of the case In our opinion, the appellant succeeds also on the point as to the validity of the notice and Issue No 5 should be decided in his favour
18.We now turn to the question of default. It was argued on behalf of the ip-pellant that there had been no default at all. This case is made out in the following manner. According to the plaintiffs the period of default is December, 1960 to May, 1961. It is admitted, however, by the plaintiffs that the defendant had paid six months' rent in advance. The admission is to be found in the evidence of Kartick who said: 'The defendant paid a sum of Rs. 570 as rent in advance for six months at the time of acceptance of the tenancy since 1st October, 1959'. It was argued that with this six months' advance rent in the landlords' hand, the landlords cannot plead any default and they must appropriate the rents paid in advance towards the rent of any month or which the defendant did not pay rent. In other words, we should read an implied agreement for appropriation of money held by the landlords as rent whenever it is necessary so that it becomes the landlords' duty to make such appropriation and if the landlords failed to do so it is not for the landlords to take an advantage of their own wrong to make the tenant a defaulter. For this purpose Mr. Ghosh relied on the dictum of Willes, J.. in De Nicholls v. Saunders, (1870) LR 5 CP 589. As against this contention of Mr. Ghosh Mr. P. K. Banerjee's arguments were two-fold. First he argued that the sum of Rs. 570 paid in advance by the defendant was adjusted by the landlords as rents for the first six months. The rent-receipts for the first six months were made out automatically by Kartick upon appropriation of the advance towards the rents for these six months It was not as if after having paid six months' advance rent the defendant went on paying rent for the first six months commencing from October. 1959 onwards. Secondly, Mr. Banerjee argued that the question of an implied agreement casting an obligation on the part of the landlord to appropriate any money in his hand towards any rent in default does not arise in this case in view of the provisions of Sec-tion 5 and Section 7 of the said Act. Under Section 5 of the said Ad it is illegal for a landlord to claim, demand or receive, except with the previous permission of the Controller of Rent payment of any sum exceed-ing one month's lent of any premises as rent in advance Therefore, the acceptance of advance rent for six months by the landlord is an illegal transaction and even if there be any express agreement attached to such an illegal transaction that agreement would be void Therefore, the question of an implied agreement in such circumstances cannot possibly arise. Besides, Section 6 of the said Act expressly provides for the refund of such advance rent accepted by the landlord in contravention of the provisions of Section 5. Therefore, there can be no question at all of the landlord appropriating under an implied agreement the advance rent he has in his hand Mr. Baneriee also relied on the cases of In re Navanee Thammal : AIR1951Mad343 and Nave Panduranga Rao v Divvala Gopala Rao, : AIR1952Mad827 .
19.On the facts of this case we find it very difficult to believe that after having paid six months' rent in advance the defendant would still go on paying rents for the first months of the tenancy. T. K. Parekh who gave evidence on behalf of the defendant said in his examination-in-chief that he paid the rents month by month after the inception of tenancy but when he was challenged to prove independently that he had paid rent from 1st October, 1959 to 31st March 1960 separately, he admitted that he could not prove it independently Mr. Ghosh tried to explain this evidence by say-ins that T. K. Parekh was one of the partners of the defendant's firm but he himself did not know anything about the facts of the case and that is why he got confused and gave this answer. Mr. Ghosh offered to prove, if necessary, by production of the books of account of the defendant firm as well as by production of its income-tax returns that the defendant's firm had actually paid the rent for the first six months in addition to the sum of Rs. 570 paid as advance to Kartick. Mr. Ghosh argued that, after all the onus of proving any default in payment of rent lay entirely on the plaintiffs. The evidence on record showi that there had in fact been payment of advance rent for six months. There are also on record separate receipts showing the payments of rents in respect of the first six months Therefore, Mr. Ghosh argued, there if no reason to disbelieve the defendant's story that those payments were separate transactions which had nothing to do with the payment of six months' rent in advance. We notice that the advance rent for the first six months had been paid by a cheque of Rs 570 so that there could be no suggestion that the plaintiffs wanted to take the money surreptitiously and without keeping any evidence of it in fact, Kartick admitted frankly that he had taken the advance It is significant that no receipt was made out for this amount in favour of the defendant Later on however, receipts were made out month by month. In these circumstances, we find it very difficult to believe the defendant's story that independent payments had been made for the first months apart from the cheque for Rs. 570 that had been delivered to Kartick initially. Besides we accept the contention of Mr. P. K. Banerjee that the provisions of Section 5 and Section 7 of the Ad preclude any question of implied agreement on the part of the landlord to appropriate advance rent in his hand towards the payment of rent for months for which the tenant himself has made a default. We, therefore, decide this issue i.e Issue No 1 against the appellant.
20.There is one other point argued by Mr. Ghosh. He invoked the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 for the protection of his client. His argument was that his client has duly complied with the requirement of Section 17(1) of the Act and therefore he can make an application in terms of Section 2 of the Ordinance for an extension of time specified in sub-sectior, (1) or Sub-section (2) of the Act for the deposit of payment of rent in regard to which there has been a default. Mr Ghosh made a verbal prayer on behalf of his client that should we hold the appellant guilty of default, we should permit the appellant to deposit the outstanding arrears of rent, if any by a date fixed by this Court. In our opinion application for extension of time for the deposit of payment of any amount has to be made before the expiry of the time specified therefor in Sub-section (1) or in Sub-section (2) of Section 17. Since there was no such application for extension of time the appellant is not entitled to any extension for this purpose. Indeed, this Ordinance has been framed in such a manner that very few tenants can derive any benefit from it. It is not for us to speculate about the reasons as to why the Ordinance was drafted in this manner. It is enough for us to say that having regard to the form of the Ordinance, we do not see how the appellant can invoke this Ordinance for protection against the effects of defaults committed by the appellant. In the result the appellant fails with regard to both his contentions on the question of default.
21. Since, however, the appellant has succeeded in his contention on Issue No 5 and Issue No. 4, we must allow this appeal. We, accordingly, pass the following order.
22. The appeal is allowed. Judgment and decree dated January 11, 1963 are set aside and the suit is dismissed. Considering the circumstances of this case, we order that the parties should pay and bear their own costs throughout the proceedings, that is to say, in the court below as well as in the appeal.
23. I agree.