K.C. Chunder, J.
1. This is a tenant defendant's appeal against an appellate decree of the District Judge of 24 Parganas in a suit for ejectment reversing that of the Munsif, 4th Court, Alipore. The facts are very little in dispute as far as they are necessary for this second appeal.
2. The defendant deposited rent in cash lor the months of May to October 1951 with the Bent Controller on 23-11-1951, it is clear, and this is not contested, that rent for May-June, July-August, were in arrears, that is, two units of two months each were in arrears and rent for September was not properly deposited but the rent for October was, as the tenant had time to deposit the amount with the Rent Controller by the 1st of December. Therefore, there was no third unit or third occasion of two months in default. Then rent fell again in default in November 1951 because the tenant paid by a cheque to the Rent Controller on 27-12-1951 and the cheque was not cashed and credited till 5-1-1952. It may be mentioned that the cheque was actually cashed on 3-1-1952 but it was credited by the Rent Controller on 5-1-1952. 1-1-1952, was a holiday but not 2-1-1952.
A debtor is required under the law to pay the creditor in current coins of the realm. A payment by cheque to the Rent Controller to the credit of the landlord was not payment in such current coins of the realm till the cheque was actually cashed into current coins. Payment by credit instrument is not payment till the credit instrument has resulted in cash payment and the payment is on the date on which the credit instrument has been converted into cash and the cash is put into the landlord's account. Therefore, it may be taken that rent for November was in arrears as there was no cash paid into the landlord's account in the Rent Controller's office on 2-1-1952.
Section 14(3), proviso of the West Bengal Premises Rent Control Act of 1950 gives protection to a tenant who is not in default for three occasions and on each such occasion the unit is two months' rent. The unit as it is clear must be of two consecutive months. Reference to Section 12(1)(i) clearly shows that it is consecutive two months which is referred to otherwise there will be no need to refer to it in the proviso. It would then have been sufficient to say it the tenant is in default for six months within a period of 18 months. The very reference to three occasions of two monthly units means that the two monthly units must be of consecutive months. Under the circumstances the tenant in the present, case not having defaulted for two consecutive months either in September or in November, payment having been properly made in October, the landlord was not entitled to deprive the tenant of the protection given by the proviso to Section 14(3). The learned District Judge was therefore wrong in decreeing ejectment reversing the learned Munsif.
3. There was no prayer for arrears of rent, no claim for same and no court-fee paid upon such claim. It has been urged before me that the landlord without claim, court-fee and prayer should now be given, because of misinterpretation of Section 14(1), a decree for arrears due. There are no arrears now due, as subsequently all rents were deposited in time. Apart from that, calculation of arrears has got to be made under Section 14(1) only when an ejectment decree is made and in making such calculation what the Legislature wanted was that credit was to be given for payments made because of an order under Section 14(4) & the claim was to be adjusted thus. Calculation under Section 14(1) is not to be made when there is no decree in ejectment. It is not a section which allows a landlord a decree for arrears of rent when the ejectment suit fails without claiming and payment of court fee for any arrears which may be due at the time when the suit is brought.
4. These were all the points that were urged in the appeal. As the points must be found against the plaintiff landlord respondent the appeal is allowed with costs in all courts. The judgment and decree in ejectment of the learned District Judge is set aside and the judgment and decree of the learned Munsif dismissing the suit for ejectment are restored.
5. Leave to appeal under Clause 15 of theLetters Patent asked for is refused.