Ahi Bhusan Maitra vs Sm. Ira Bose and Another

Anil Kumar Sen, J.—This is an appeal from an appellate decree at the instance of the tenant defendant and it arises out of a suit far eviction which had been decreed concurrently by the two courts below. Facts are not In dispute and may be set out very briefly. The plaintiffs/respondents (hereinafter referred to as the plaintiffs) are the joint owners of premises No. 20D, Chakraberia Lane which was let out to the defendant/appellant (hereinafter referred to as the defendant) on a monthly rental of Rs 60/- payable according to English calender. On March 30 1970, the plaintiffs instituted an earlier suit, being Title Suit No. 203 of 1970 as against the defendant for a decree for eviction on the ground of default since September 1969 This suit was dismissed when the tenant/do endant was given relief u/s 17(4) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) upon the following finding :

The defendant deposited the arrear rents for September. 1969 to December 1969, together with statutory interest on 26.11.70 by Ext. A/10. The defendant has deposited rents from January 1970 to October 1970 before the Rent Controller''s Office vide Ext. A to A/9. On perusal of Ext. A to Ext A/9 it appears that the deposits are in time. Since November 1970 the defendant has been depositing rent in court in time. Exts. A/11 to A/24 prove that the defendant has deposited rents for November 1970 to December 1971 in court in time. At this moment, I find that the defendant is not In arrears of rent.

The said suit was dismissed on January 24, 1972. in that background the plaintiff instituted another suit for eviotion as against the defendant, being Title Suit No. 93 of 1973 of the 2nd Court of the learned Munsif at Allpore (out of which the present appeal arises) on two told grounds of default and reasonable requirement for their own use and occupation The two courts have concurrently overruled the plaintiff''s claim of reasonable requirement though the suit has been concurrently decreed on the other ground of default. The default pleaded was a technical one. It was not disputed that since after the dismissal of the earlier suit the tenant defendant continued to deposit rent with the Rent Controller month by month and in time but such deposits were claimed to be invalid because there was no fresh tender of rent to the landlord personally or by money order subsequent to the judgment and decree in the earlier suit for eviction The defence plea that there was such a personal tender subsequent to the earlier suit was not accepted by the learned judge in the courts below who concurrently held that the deposit of rent with the Rent Controller are invalid solely on the ground that there was no prior tender of rent to the landlord after the aforesaid dismissal of the earlier suit. Feeling aggrieved, the tenant defendant has preferred the present second appeal to this court.

Mr Bagchi appearing in support of this appeal has contended that even on the findings of the two courts below the tenant defendant could not have been adjudged a defaulter. Relying on the amended provision of section 21 (4A) of the said Act, it has been strorgly contended by Mr. Bagchi that when in the earlier suit the court had found deposit of rent with the Rent Controller for the months of January 1970 to October 1970 to be valid deposit, it is necessarily established that such deposit followed a valid tender to the landlords. Once that is established, according to Mr. Bagchi, until the landlords singnify their intention in writing to the tenant that they are willing to accept the rent amicably from the tenant, the tenant defendant was entitled in law to continue to deposit rents which fell due afterthe dismissal of the suit with the Rent Controller without any fresh tender to the landlords in other words, according to Mr Bagchi intervention of the earlier suit or the resultant liability of the tenant defendant to deposit an amount equivalent to rent in court u/s 17(1) of the Act during the continuance of the previous suit did not cause forfeiture of the legal right of the defendant tenant to again go on depositing the monthly rent to the credit of the landlords with the Rent Controller based upon their earlier refusal without a fresh tender to the landlords. Such being the right of the tenant defendant he could not have been adjudged a defaulter in the present suit only on the ground that the deposits of rent made by him following the earner suit are invalid only because there was no fresh tender of rent to the landlords.

Mr. Mukherji appearing on be-half of the plain tills has, however, contested the point thus raised by Mr. Bagchi. According to Mr. Mukherji section 4 and section 21 of the said Act provide for payment or deposit of contractual rent. Section 17 of the Act, according to Mr. Mukherji imposes a statutory liability on the tenant to deport on amount equivalent to rent for the purpose or entitling him to get protection under the Act. Deposits made u/s 17(1) of the Act, according to Mr. Muknerji are not deposits or contractual rent. As a necessary consequence, it has been contended by Mr. Mukherji that once the earlier suit is dismissed the liability to pay the contractual rent arises once more and, as such, the tenant defendant must pay the said rent once more in terms of section 4. Only in the event an offer so made u/s 4 is refused can the tenant defendant deposit the rent once more in terms of the provision of section 21 but not otherwise.

On the rival contentions put forward before us it appears to us that the present appeal involves a question of law which was neither raised before nor considered by the two courts below. Both the courts proceeded on the view that once the defendant had failed to establish his defence that he made a fresh tender of rent to the landlords after the disposal of the earlier suit for ejectment, deposit of rent by him with the Rent Controller thereafter though made in time would be invalid because or the reason that such deposit was not proceeded by any valid tender. Tne two courts below failed to take note of the fact that it is well established that prior to the earlier suit on the plaintiff landlord''s refusal to accept rent tendered to him, the tenant had been depositing such rent with the Rent Controller and such deposit was held to be valid in the earlier suit. This fact was not disputed either at the trial and neither of the said courts considered the question whether because of such earlier refusal by the landlords and in the absence of the landlords signifying in express terms their willingness to accept the rent once more, the defendant had a legal right to go on depositing rent with the Rent Controller without any fresh tender. According to Mr. Mukherji this question should be answered against the defendant because according to him what the tenant defendant was depositing with the. Rent Controller prior to the earlier suit was the rent in discharge of his contractual liability but that liability ceased as and when the suit was filed and section 17 of the said Act, intervened to impose a statutory obligation. It is contended by Mr. Mukherji that when such a suit ended in a dismissal the statutory obligation again lapsed and necessarily the contractual obligation revived; once it is so revived according to Mr. Mukherji it is necessary for the tenant-defendant to pay the rent In discharge of his contractual obligation to the landlord and such payment must be by tender to the landlord personally and not by deposit with the Rent Controller except upon his refusal. To distinguish the different nature of the obligations imposed by section 17 and section 21 of the said Act respectively and to support this contention of his, Mr. Mukherji has strongly relied en the majority view in the Special Bench decision of this court in the case of Siddheswar v. Prakash 68 CWN 30 which was approved by the Supreme Court in the case of Kaluram Onkarmal and Another Vs. Baidyanath Gorain, .

We have carefully considered the contention thus put forward before us by Mr. Mukheni but we are unable to accept the same. In our view, the scheme of the Act makes it abundantly clear that the legislature intended the tenant to discharge his rent liability ali through in order to be entitied to the protections under the Act; this the tenant is expected to do even pending the suit We do not think that the nature of the liablity for the payment is in any way changed only because a suit intervenes and section 17 of the said Act comes to assume the field. The tenant''s liability for payment of rent, though it originates from the contract between the parties, is rendered a statutory liability when the statute in-tervenes to make it so u/s 4 of the said Act. What is so payable is the contractual rent so long the fair rent is not fixed under the statute and once such a rent is fixed the tenant is liable to pay the rent so fixed. In our view section 17 of the said Act contemplates the same payment as is contemplated by section 4 or section 21 of the Act. The only difference made, is with regard to the mode of payment. In the Special Bench decision referred to by Mr Mukherji this court was considering the question whether continuance of depoeit of rent with the Rent Controller by a tenant/defendent subsequent to the suit would constitute payment to the landlord within the meaning of section 17(1) of the said Act prior to its 1965 amendment. Though the minority held that it would be so, the majority expressed a different view when it was held that on the statutory requirement once the suit Is filed such rent must be either paid to the landlord or deposited in court and not with the Rent Controller. This decision in our view is no authority for the proposition that the nature of the liability for payment is changed as and when section 17 of the said Act comes into play. It is not correct to think that the liability for the contractual rent having ceased what is substituted is a statutory liability. The statute enjoins that a tenant, enjoying the benefit and protection thereunder, must go on paying or depositing the rent either agreed or as fixed by the Rent Controller, though it prescribes different modes of payment or deposit depending on the fact as to whether it should for ejectment Is pending against the tenant or not. If the liability discharged u/s 17(1) of the said Act is not the same liability as contemplated by section 4 or section 21 of the said Act, then, in the event the suit fails, the tenant for no fault of his own would fall within the mischief of section 13(1)(I) of the said Act as he would be held to be In dafault In the matter of discharge of his rent liability. Such a result was certainly not intended by the legislature. The Supreme Court in Kaluram''s case was merely affirming this aspect, when referring to section 17(1) of the said Act the Supreme Court explained the nature of the obligation there under by observing '' No doubt theemount required to be deposited may be the amount for which the parties may have entered into a contract but the manner and the mode in which the deposit is required to be made in court are the result of the statutory provision and in that sense they constitute a statutory obligation.

The majority in the Special Bench of this court merely held that continuance of deposit of rent with the Rent Controller by the tenant/defendant constituted breach of section 17(1) at the said Act as it stood prior to the 1955 amendment but it was not held that notwithstanding such deposit the tenant/defendant would incur the liability of being a defaulter in the matter of payment of rent. in Slddheswai''s case both the majority and Minority view were unanimous on the point that the liability of the tenant u/s 17(1) of the said Act was a liability to pay rent. Bachawat, J with whom P.N. Mukherji, J concurred observed : 1 reject the contention that section 17 requires the tenant to deposit or pay turns which are not rent. The object of section 17 is to secure to the landlord punctual payment of rent by tne tenant dunng pendency of a suit for eviction." Same thing was said by G. K. Miner J when he observed. The legislature did not desire that the institution of any suit or proceeding for recovery of possession of premises should impair the landlord''s right to receive rent. Some provision in the Act was necessary to ensure regular payment of rent even during the pendency of the suit or the proceeding With this object section 17 of the Act was enacted.

The position of the tenant in this regard has been made clear by the legislature when subsection (4A) of section 21 of the said Act was incorporated by the Amending Act of 1969. Section 21(1) of the said Act provides : Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 4 or where there is a benafide doubt as to the person or persons to whom the rent Is payable, the tenant may deposit such rent with the Controller in the prescribed manner." A doubt arose at one stage whether subsection (1) as aforesaid contemplates fresh tender of rent month by month to the landlord before it is deposited in the manner prescribed therein. Though in a case under the Calcutta Rent Act, 1920, it was observed that such a result does not reasonably follow from a provision comparable to subsection (1) of section 21 of the said Act (vide Rekabchand Dugar v. J.R. Dicrouze 26 CWN 499), some doubt was expressed about the correctness of that view in a later decision. All the doubt as aforesaid was removed by the legislature when It incorporated a new subsection as subsection (4A) which prescribes as follows :

Where rent for any month or period has been deposited under this section on the ground that the landlord did not accept the rent when tendered by the tenant, than notwithstanding anything contend in subsection (1), the tenant may. without further tender of rent to the landlord continue to deposit the rent for subsequent months or periods unless the landlord signifies by notice in writing to the tenent his willingness to accept the rent If tendered to him within time referred to in subsection (4).

This subsection makes it clear that once the landlord has refused to accept a valid tender of rent made to him the tenants right to continue to deposit rent with the Rent Controller would subsist until the landlord in his turn signifies by notice to writing to the tenant his willingness to accept rent if tendered to him validly once again. Once there is a refusal the obligation is shifted to the landlord to signify by a notice in writing his willingness to accept rent and untill the landlord dischargee such an obligation of his the right to make the deposit with the Rent Controller continues with the tenant. Laying emphasis on the words "continue to deposit rent for subsequent months", Mr. Mukherji has contended that once the continuity is lost by the fact of intervention of a suit bringing into operation the provision of section 17(1) of the said Act, this sub section can be of no help to a tenant/defen dant. Extending the principle contended for by Mr. Mukherji to its logical extreme If there is a lapse in the matter of continuity of the deposit with the Rent Controller by the tenant, the tenant can no longer be entitled to deposit the rent with the Rent Controller except upon a fresh tender -- irrespective of the fact as to whether such lapse is due to intervention of a suit, default on the part of the tenant or for any other reason In our considered opinion the legislature never contemplated such a result. Subsection (4A) merely preserves the right of the tenant to continue the deposit with the Rent Controller and continuity of the deposit was not intended to be made the condition precedent to the preservation of such a right) This view of ours finds some support from the decision of the Supreme Court in the case of Raimohan Mazumdar v. Ramkrishna Das AIR 1980 SC 872. In the case under consideration by the Supreme Court the tenant made a valid tendar of rent for the month of July 1965, to the landlord which was refused. The tenant however Instead of depositing the rent for July 1965 with the Rent Controller made a second tender but beyond time which also being refused he started depositing rent with the Rent Controller from September 18, 1965 on which date the rent for the month of July was deposited, (sic) for the subsequent months were deposited with the Rent Controller in time. The High Court decided against the tenant on the view that all the deposits were invalid because they were not preceded by at least one valid tender. This was overruled when the Supreme Court held that though the deposit of rent for the month of July 1965 was not a valid deposit, deposit for months subsequent were valid deposit based on the first tender made In August 1965. If we accept the contention of Mr Mukherji, then in the case before the Supreme Court though there was a valid tender of rent for the month of July 1965 the rent for the said month not having been deposited in accordance with law, the continuity was lost and subsequent deposits required a fresh tender as was held by the High Court but was overruled by the Supreme Court. This is the reason why we would prefer to construe sub section (4A) to mean that it merely confers a right on the tenant to continue to deposit rents for the months succeeding with the Rent Controller once It is based upon a refusal by the landlord of a valid tender until the process is reversed by a positive act of the landlord signifying this willingness to accept the rent if tendered to him in accordance with law Such was the view taken by a learned single judge of this court in the case of Kamalabala Devi v. Durga Charan Dutta and Anr 11 CWN 870 and we respectfully agree with the view so taken Before we conclude, we may refer to the observations of Sinha, J. in Siddheswar''s case indicating that such was the legal position even before Incorporation of subsection (4A) to section 21 of the said Act. in para 12 of the judgment he observed where however such a suit or proceeding terminates and no decree or order for recovery of possession has been made, the tenant''s right to deposit rent with the Rent Controller under Chapter IV revives as also his liability for default If such deposits are not made.

In the result, we hold that the two courts below erred In law In holding that the tenant/defendant In the present case was in default In payment of rent and, as such, is liable to be evicted en a ground contemplated by section 13(1)(1) of the said Act. The judgment and decree passed by the two courts below based on such an erroneous view of the law are liable to be set aside and we direct accordingly. This appeal, therefore, succeeds end is allowed. The judgment and decree of the courts below having been set aside, the suit is dismissed. Parties, however, are directed to bear their costs throughout.

S.N. Sanyal, J.

I agree