Ganesh Chandra Ganguly vs Mahabir Prosad and Baldeo Singh

Guha Bay, J.—These two Rules are directed against two orders u/s 17(3) of the West Bengal Premises Tenancy Act, 1956. The Petitioner is the landlord who filed two suits against two different tenants in respect of two different rooms in the same building. The facts are the same in both the cases. The tenants after the suits were filed are required u/s 17(1) to deposit in Court or to pay to the landlord the amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment was made together with interest on such amount calculated at the rate of 8 1/3 per cent, per annum from the date when such amount was payable up to the date of deposit. Admittedly the tenants in both the cases deposited the amount referred to in Sub-section (1) of Section 17 within the time prescribed there but they deposited it not in the Court in which the suits were pending but before the Rent Controller and the only question for decision now is whether these deposits before the Rent Controller, were valid deposits and if not. whether under Sub-section (3) the Court is bound to strike out the defence. The learned trial court held that the deposits before the Rent Controller amounted to payment to the landlord direct. This view is seriously contested by Mr. Mookerjee on behalf of the Petitioner and it is to be seen whether this view is correct or not. Sub-section (3) of Section IT of the West Bengal Premises Tenancy Act. 1956, runs as follows:

If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

It is obvious from the wording of the section that in the event of a failure to deposit or to pay the amount referred to in Sub-section (1), the Court has no option but to strike out the defence against delivery of possession. The whole question is whether there has been a failure to deposit or to pay the amount referred to in Sub-section (1). We are not here concerned with Sub-section (2) at all. Admittedly, the amounts required to be deposited or paid were deposited before the Rent Controller within the time prescribed. But Sub-section (1) distinctly provides that the deposit must be made in Court and there is no doubt that the deposits made before the Rent Controller are not strictly valid deposits according to the terms of Section 17(1). In this connection, my attention has been drawn to three decisions under the Act of 1950, one of which is reported and one reported decision under the present Act. In Civil Revision Case No. 2620 of 1952 Unreported decision of Chunder, J., dated Dec. 2, 1953. in Civil Revision'' No. 2620 of 1952 Chunder, J, held that a deposit of current rent made in the Rent Controller''s office was not a valid deposit u/s 14(4) of the Act of 1950. In Civil Rule No. 2054 of 1952 Unreported decision of Guha, J., dated in Civil Rule No. 2054 of 1952. Guha, J. held on an elaborate discussion of the various provisions of the Act of 1950 that although in Section 14(4) there was no clear mention of the place where the deposit was to be made, the legislature intended that the deposit should be made in Court and it was accordingly held that the deposit before the Rent Controller was not a valid deposit u/s 14(4) of the Act of 1950. In Sarah Saul Jacob v. Messrs. Buckingham Court Ltd. (1956) 60 C. W. N. 754, Lahiri, J. held that as Section 14(4) of the Rent Control Act, 1950, did not mention the place where the deposit of rent was to be made and as there was a distinction between non- fulfilment of a statutory condition and non-observance of a condition imposed by the Court, it was always open to the Court to consider whether when it was the Court that ordered the deposit to be made in Court and when the deposit was not made in Court according to the terms of the Court''s order but elsewhere, the irregularity was the result of an honest mistake or a deliberate act on the part of the tenant calculated to harass the landlord and in the former case the Court would condone the irregularity, but in the latter case it would not. These are the three decisions under the old Act. In Gokul bala Roy v. Sarat Chandra Ghosal (1957) 61 C. W. N. 890, 99 C.L.J. 145. Renupada Mukherjee, J. held that where the tenant deposited after the institution of the suit rent with the Rent Controller in the prescribed manner u/s 21 of the Act, such payment should be taken as equivalent to payment to the landlord in view of the provisions of Section 22(3) of the Act.

The two suits out of which these Rules arise were instituted on January 4, 195T and the summonses were finally served on February 15, 1957. Then the Defendants deposited with the Rent Controller the rent for February 1957 on March 12. 1957, for March 1957 on April 11, 1957 and for April 1957 on May 10, 1957. These rents were deposited in the Rent Controller''s office and thereafter, I am told, rents are being'' deposited in the Court.

Now the only question for decision in these two Rules is whether these deposits made before the Rent Controller were valid deposits within Sub-section (2) of Section 17. The view taken by Renupada Mukherjee, J. in the last case is that deposits before the Rent Controller were under the provisions of Sub-section (3) of Section 22 to be payments of rent to the landlord. With due respect, I find it somewhat difficult to agree with that view. In the first place Section 22 applies only to deposits of rent tinder that Chapter, namely, Chapter IV. The deposit required by Section 17(2), however, is not deposit of rent. The amount to be deposited has been deliberately described as an amount calculated at the rate of rent at which it was last paid for the period for which the tenant made default and even the current rent has not been described as such in the last part of Sub-section (1) of Section 17. There also it has been described a sum equivalent to the rent at that rate. Evidently, therefore, what is to be deposited u/s 17(2) is not rent but a sum equivalent to the rent at the rate at which it was last paid. That being so, the operation of Chapter IV of the Act would seem to be excluded by the provision in Section 17(2) that what is to be deposited under that Sub-section is to be deposited in Court. Section 17 is obviously in the nature of a special provision applicable only to cases when there is a suit for ejectment on grounds mentioned in Section 13 and it must accordingly in such cases take precedence over the provisions in Chapter IV even when the conditions for the application of that Chapter exist. The provisions of Chapter IV which lay down the circumstances and the modes in which rent may be deposited with the Rent Controller are meant to cover all cases where there is no suit between the landlord and the tenant and where Section 17 has no application. Consequently, when there is a suit to which Section 17 applies, deposits or payments must be made according to the requirements of that section and not in accordance with the rules in Chapter IV, even if deposits could otherwise be made under these rules. The view taken in the other three cases which of course were cases under the Act of 1950 is that although in Section 14(4) the place where the deposit is to be made was not specified, the deposit was to be made in Court and where the deposit was required to be made in Court under an. order of the Court it was open to The Court to condone any irregularity where out of a bona fide mistake the deposit instead of being made in Court is made in the Rent Controller''s office. Whatever might be the position under the Act of 1950, Section 17(1) of the Act of 1956 leaves no room for doubt that the deposit is to be made in Court or the payment is to be made direct to the landlord. Then, Sub-section (3) provides for the penalty for default. If the deposit is not made in Court, or the payment is not made to the landlord within the time prescribed, then the defence of the Defendant against delivery of possession has to be struck out. In construing Sub-section (3) of Section. 17 in favour of the tenants I was trying to find out whether the words used in the Sub-section could be taken to mean hat the penalty prescribed in the section attached to a failure to deposit or pay altogether or whether it attached to a failure to deposit or pay in accordance with the terms of Sub-section (1) or Sub-section (2). The words used in Sub-section (3) are as already pointed out "referred to in Sub-section (1) or Sub-section (2) whereas the corresponding words used in Sub-section (4) are "as required by Sub-section (1) or Sub-section (2). After an anxious consideration of the matter I am inclined to think that it is not possible to make any distinction between the two sets of words used in Sub-section (3) and Sub-section (4). Sub-section (3), as 1 have already pointed out, provides the penalty for default and Sub-section (4) provides for the tenant''s protection against a decree or order for delivery of possession as a result of his carrying out the duties imposed by Sub-section (1). Sub-section (1) in clear term provides for the deposit in Court or payment to the landlord. If the deposit instead of being made in Court is made in the Rent Controller''s office, that is certainly not a deposit referred to in Sub-section (1), nor can it be said to be a payment to the landlord, for the simple reason that Section 22 has no application to this deposit because it is not a deposit of rent under Chapter IV. In that view it has to be held that the deposits made by the Defendants before the Rent Controller were not valid deposits within the provisions of Sub-section (J) of Section 17, nor can they be taken as payments direct to the landlord. That being so, the Court has no option but to order the striking out of the defences of the opposite parties against delivery of possession. The order, therefore, challenged in these Rules must be set aside and the Rules made absolute.

I make no order as to costs in these Rules.