1. In this appeal, which arises out of a suit for arrears of rent, the question is whether the deposit of rent set up in the defence of the tenants-defendants was a valid deposit under Section 62 of the Bengal Tenancy Act. The grounds upon which the learned Vakil for the plaintiffs-appellants asks us to hold that deposit to be invalid in law are, first, that the preliminary tender which was necessary in this case was not a valid tender as it was not made by the recorded tenants, but was made by the transferees from them; secondly, that the deposit was made in respect of rent which had not fallen due at the time; and, thirdly, that the deposit was made, not by the tenant as required by law, but by the transferee from him.
2. The first objection is, in our opinion, concluded by the finding arrived at by the Lower Appellate Court, which is to the effect that the tender was made by two of the defendants, that is two of the recorded tenants.
3. As to the second objection, it does not appear to have been raised before either of the Courts below; and as it involves the determination of a question of fact, namely, whether at the date of the tender the amount tendered had or had not fallen due, we do not think we ought to allow the objection to be raised at this stage of the case, as it would necessitate a remand and protract the litigation.
4. As to the third objection, it is quite true that Section 61 enacts that 'the tenant may present to the Court having jurisdiction to entertain a suit for the rent of his tenure or holding, an application in writing for permission to deposit in the Court the full amount of the money then due.' But the question is whether the law requires that the tenant must present the application to the Court in person. We do not think that it would be a reasonable construction of the section to hold that it requires that the tenant must present the application in person.
5. The application here was made on behalf of the tenant though it was presented on his behalf by the transferee of the holding from him.
6. The Bengal Tenancy Act does not make any provision as to how applications, other than those in suits, are to be made by or on behalf of parties in a case like this. Neither Section 145 nor Section 188 applies to cases of this description. That being so, we think the view taken by the Lower Appellate Court, that an application, such as the one that was made in this case for the deposit of rent, was in substantial compliance with Section 61, is a reasonable view.
7. The objections urged against the validity of the deposit all fail; and this appeal must consequently be dismissed with costs.