P.R. Damzen vs R. Pal Choudhury

Lahiri, J.—This Rule has been obtained by the tenant against an order made by the First Additional Court of the Subordinate Judge, Alipore, by which he has struck out the defence of the Petitioner against delivery of possession u/s 17(3), West Bengal Premises Tenancy Act, 1956. The facts which are material for purposes of this Rule may be briefly stated as follows:

On June 9, 1956, the landlord-opposite party instituted a suit for ejectment against the Petitioner on the ground that the Petitioner had violated the provisions of Section 108, Clause (m) of the Transfer of Property Act. Summons of this suit was served upon the tenant but the service was found to be unsatisfactory by the trial Judge. Thereafter a registered post card was ordered to be issued to the Petitioner which reached him on July 26, 1956. This registered post card was not accompanied by a copy of the plaint or a concise statement of the Plaintiff''s claim. On August 10, 1956, the Petitioner entered appearance in the suit and on August 17, 1956, a copy of the plaint was supplied to him. On August 20, the Petitioner sent the rent for the month of July by money order to the landlord but this money order came back as refused. On September 5, 1956, the Petitioner filed an application before the court stating that the rent for July, 1956, sent by money order had come back to him as refused by the landlord and prayed for permission to deposit the rent in court. On September 6, 1956, the rent for July and August was deposited by the Petitioner in court. The civil court remained closed for the puja vacation from October 2, 1956, up to November 4, 1956 and re-opened on November 5, 1956. On November 6, 1956, the Petitioner deposited in court the rent for the months of September and October, 1956. Thereafter on November 22, 1956, the Petitioner filed a written statement challenging the Plaintiff''s claim for ejectment but this written statement was struck off on the application of the Plaintiff by an order dated February 26, 1957. Against that order the Petitioner has obtained the present Rule. By his order dated February 26, 1957, the learned Subordinate Judge has held that the Petitioner was a defaulter in respect of the rent for July, 1956, as well as the rent for the month of September, 1956. The relevant portion of Section 17(1) of the West Bengal Premises Tenancy Act under which the rent has to be deposited or paid runs as follows:

On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, within one month of the service of the writ of summons on him, deposit in court or pay to the landlord, an amount and shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate.

Mr. Ganguly, appearing in support of this Rule, has argued that as there was no service of writ of summons upon the Petitioner in the present case, the learned Subordinate Judge was wrong in holding that the Petitioner deposited the rent beyond the time prescribed by Section 17. The learned Subordinate Judge has held that for the purposes of this proceeding it must be held that summons was served upon the Petitioner on July 26, 1956. That was the date on which the registered post card was served upon the Petitioner. That registered post card, however, cannot, in our opinion, be said to be a writ of summons within the meaning of Section 17, Sub-section (1) of the West Bengal Premises Tenancy Act. Apart from anything else, under the provisions of Order V. Rule 2 of the Code of Civil Procedure, every summons has to be accompanied by a copy of the plaint, or, if so permitted, by a concise statement. The registered post card which was served upon the Petitioner was not accompanied by a copy of the plaint, nor did it contain any concise statement of the Plaintiff''s claim. Therefore, it is impossible for us to hold that the registered post card was a writ of summons. Therefore, the period of thirty days from the date of the service of the writ of summons will not apply to the facts of the present case. The Petitioner was supplied with a copy of the plaint on August 17, 1956, and he sent the rent for July by money order to the landlord on August 20, 1956. There is no material on the record to show on which date this money order was actually tendered to the landlord but it can be reasonably inferred that it was offered to the landlord within two or three days from the date of despatch. It is therefore reasonable to hold that the money order was tendered to the landlord by the postal authorities on or about August 23, 1956, but it was refused by the landlord. The Petitioner then moved, as I have already stated, an application before the court on September 5, 1956, and actually deposited the rent for July and August on September 6. Even if it be assumed that the registered post card which was served upon the Petitioner on July 26, 1956, was a writ of summons, it is clear that the Petitioner paid the rent to the landlord within one month from the date of service of that registered post card. Both the parts of Sub-section (1) of Section 17 which I have quoted above, give the tenant an option to make the payment directly to the landlord or to deposit the rent in court. In the present case the remittance of the rent for July by money order to the landlord, amounted to payment of rent to the landlord within thirty days from the date of service of the registered post card upon the Petitioner.

Mr. Mukherjee appearing for the opposite party has contended that in a case where the writ of summons has not been served as contemplated by the first part of Section 17(1), the tenant is nevertheless under an obligation to pay or deposit the rent by the fifteenth day of the following month u/s 4(2) of the Act. So rent for July should have been paid or deposited by August 15, 1956, more particularly because the registered post card was served on the tenant on July 26, 1956. There is an obvious fallacy in this argument. What is required to be paid u/s 4 is "rent" which is payable during the subsistence of the tenancy; but what is required to be paid or deposited u/s 17(1) is not rent but an amount calculated at the rate at which rent was last paid together with a certain amount of interest. This distinction is important, because, after a suit has been instituted u/s 13 on a notice to quit the landlord is seeing on the footing that the relationship of landlord and tenant has come to an end and there can be no question of the tenant paying any rent after the institution of the suit. In the second place, Section 4 does not contemplate a deposit in court as Section 17. Thirdly, a default within the meaning of Section 4 will not attract the penalty contemplated by Section 17. For these reasons I hold that Section 4 does not apply to a case which comes u/s 17.

Mr. Mukherjee has also contended that since the suit in the present case was instituted on June 9, 1956, the rent for July, 1956, was rent which accrued due during the pendency of the suit which has to be deposited under the last clause of Section 17(1) "by the 15th of each succeeding month". According to Mr. Mukherjee the first part of Section 17(2) relates to arrears which accrued before the suit and the second part to arrears which accrued during the pendency of the suit. There is no substance in this argument. The first part of Section 17(7) requires the tenant to deposit not only the amount for which he was in default anterior to the suit but also the amount for which he may be in default for the period "subsequent thereto up to the end of the "month previous to that in which the deposit or payment is "made". Under the first part of Section 17(7) therefore the tenant must deposit all amounts due from him up to the end of the previous month. The application of the first part therefore is not confined to arrears which accrued before the suit. The amount due for July in the present case was required to be deposited under the first part of Section 17(7) and the tenant was entitled to pay or deposit the amount within a month of the service of writ of summons. If the registered post card served upon the tenant be accepted as a writ of summons the tenant sent the amount by money order within a month of the service of the notice. If on the other hand, it is not equivalent to a writ of summons, there was no time-limit for making the deposit and the deposit having been made within a reasonable time on September 6, 1956, it cannot be said to be invalid. On either view the tenant cannot be said to be in default in respect of the amount due for July, 1956.

The position, however, is different with regard to the amount due for September, 1956. There can be no question that this amount was due to be deposited or paid by the 15th of the succeeding month of October, under the second part of Section 17(1). The civil court was closed for the Puja vacation from October 2, 1956, up to November 4, 1956 and reopened on November 5, 1956; but the amount due for September was deposited on November 6, 1956, on which date the suit was fixed for hearing. This deposit was therefore made beyond the time fixed by the statute. Mr. Ganguli appearing for the Petitioner has contended that since the civil court was closed the Petitioner could not make the deposit in time. This argument, however, does not solve the Petitioner''s difficulty. Both the parts of Section 17(2) require the Petitioner either to pay the amount to the landlord or to deposit it in court. Even if the civil court was closed there was nothing to prevent the Petitioner from sending the amount by money order to the landlord by October 15, as he had done with regard to the amount due for July. If the money order had been refused as on the previous occasion the tender of the amount to the landlord would have been a valid tender and equivalent to payment within the meaning of the law. The failure of the Petitioner to pay the amount to the landlord by October 15, therefore attracts the penalty contemplated by Section 17(3). Section 17(1) imposes upon the tenant the statutory duty of either making the payment or depositing the amount in court. If the latter remedy is not available the tenant is required to take recourse to the former. If both the remedies are available the tenant has an option to take recourse to either; but if one is not, he is bound to take action under the other. The conclusion cannot therefore be resisted that after October 15, 1956, the tenant became a defaulter in respect of the amount due for September, 1956. Even if it is conceded that the tenant had a right to deposit the amount in court that deposit cannot be treated as a valid one, because it was made not on the date on which the civil court reopened but on the following day, and it was therefore out of time by one day.

To get rid of these difficulties Mr. Ganguli has advanced an extreme argument to the effect that the present suit is not one on any of the grounds referred to in Section 13 and therefore, Section 17 has no application. Section 13 authorised an order or decree for recovery of possession inter alia on the ground that the tenant has done any act contrary to the provisions of Clause (m) of Section 108 of the Transfer of Property Act. The suit in the present case was instituted on the ground that apprehending serious damage to the demised premises by the lessee the lessor requested the lessee to allow the lessor''s engineer to inspect the premises but that request had been unreasonably refused by the lessee and therefore the tenant was guilty of an act contrary to the provisions of Clause (m) of Section 108 of the Transfer of Property Act. Mr. Ganguli''s argument is that this is not an act contrary to Clause (m) of Section 108. According to him Clause (m) imposes a three-fold liability on the lessee (a) liability to keep and on termination of the lease, to restore the demised premises in as good condition as it was in when the lessee was put in possession subject to reasonable wear and tear, (b) liability to allow the lessor and his agents to enter upon the premises at reasonable times to inspect the condition thereof and to give notice of any defect and (c) liability to make good any loss caused to the demised premises by any act or default on the part of the lessee within three months after a notice to that effect has been given by the lessor. It is argued that in order to be an act contrary to the provisions of Clause (M) within the meaning of Section 13(b) of the West Bengal Premises Tenancy Act a violation of all the three kinds of liability must be alleged in the plaint. It is impossible to accept this argument. The statutory authority of the lessor to inspect is the foundation of his right to ascertain whether the lessee is keeping the demised premises in good condition and also to recover damages for any loss caused by the act or default of the lessee. If that right is denied it is impossible for the lessor to make any other claim. Again, the liability to keep and the liability to restore the premises on termination of the lease in the same condition in which they were when the lessee was let into possession refer to different points of time and the lessor can enforce the former without waiting for the termination of the lease. The right to recover damages under the third part again depends upon the notice that may be given after the inspection under the second part. The liability to allow inspection under the second part of Clause (m) is for these reasons an independent liability and an act which is contrary to that liability is contrary to the provisions of Clause (m) within the meaning of Section 13(b) of the West Bengal Premises Tenancy Act, and the landlord need not allege or prove a violation of all the different provisions of Clause (M) to bring a case within the four corners of Section 13(b). In fact, it is impossible for the lessor to do so.

For these reasons I hold that the Petitioner has incurred the penalty contemplated by Section 17(3) for his failure to pay the amount due for September, 1956 and this Rule must be discharged. In the circumstances of the case I would make no order as to costs of this Court.

Guha, J.

I agree.