(1.) THIS revisional application is directed against an order passed by Sri S. C. Roy, Subordinate Judge, Second Court, Alipore in Title Suit No. 93 of 1957, dismissing an application by the plaintiff-landlords under section 17 (3) of the West Bengal Premises Tenancy Act 1956 for striking out the defense against delivery of possession on the ground that the defendant opposite party had failed to deposit in court rent for certain months after service of summons on him. The opposite party is a tenant under the petitioners in respect of the premises at No. 5, Swinhoe Street, the monthly rent of the house, being Rs. 600/ -. After service of notice determining the tenancy the plaintiffs filed the suit for ejectment and the writ of summons was served on the defendant opposite party on 11th October 1957. The tenancy commenced from the 15th of the English month and accordingly a month of the tenancy ran from the 15th of an English month to the 14th of the next month. In the plaint the plaintiffs alleged that the defendant had failed and neglected to pay the rent of the premises from the month of the tenancy commencing on 15th September, 1956. On 9th November, 1957 i. e. , 28th day after the service of summons on him, the defendant deposited rent for 3 months from 15th September 1956, to 14th December 1956, amounting to Rs. 1800/- in court. Two days later, on 11th November 1957, the defendant also deposited the interest on the aforesaid arrears upto the date of deposit, the interest being Rs. 144/ -. The defendant alleged when making the deposit that except for the months for which he deposited rent in court there was no other arrear and that oven for the aforesaid months he had made payments more or less contemporaneously by two cheques, one for Rs. 600/- and one for Rs. 1,200/-, but the plaintiffs had deliberately omitted to cash the cheques, and therefore to save himself, the defendant was making the deposit of the same of Rs. 1,800/-representing rent for those 3 months in court. On 12th October, 1957, i. e. , one day after the service of summons on him, the defendant deposited in the Rent Controller's Office the rent for the month September 15 to October 14 of 1957. On 7th November, 1957, which is also within one month from the service of summons on him, the defendant deposited in the Rent Controller's office rent for another month, viz. , the month of October 15 to November 14, 1957. The rent for subsequent months beginning from November 15. 1957 was deposited month by month in court.
(2.) THE suit was fixed for peremptory hearing on certain dates. At that stage, before the suit was actually taken for peremptory hearing, the plaintiffs on 19th May 1959, filed an application under section 17 (3) of the West Bengal Premises Tenancy Act requesting that the defense against delivery of possession be struck out, because even after service of summons on him the defendant had deposited rent for the months September 15 to October 14 and October 15 to November 14, 1957, in the Rent Controller's office, and this could not be construed as valid deposit under section 17 (1) of the Act. It was also alleged in the petition under section 17 (3) that the defendant had failed to deposit in court the arrears of rent from December 15, 1956 upto November 14. 1957.
(3.) THE defendant contested the application under section 17 (3) of the West Bengal Premises Tenancy Act. He stated that as there had been trouble over the payment of rent for the months September 15, 1956, to December 14, 1956, the defendant had been depositing rent due from December 15, 1956, in the Rent Controller's office and had so deposited rent upto the month ending September 14, 1957, in the Rent Controller's office before the suit had been filed, and that therefore the question of depositing rent for that period over again in court could not at all arise, as he was not a defaulter in payment of rent during that period As to the deposit of the rent for 2 months in the Rent Controller's office even after the service of summons on him, the defendant contended that this deposit was not against the terms of section 17 (1 ). Accordingly, the defendant contended that the application under section 17 (3) of the Act was liable to be dismissed.;