(1.) THIS Revisional application is directed against an order under section 17 (3) of the West Bengal Premises Tenancy Act, striking out the defence against delivery of possession in Ejectment Suit No. 20 of 1959 of the Court of the Subordinate Judge, Gooch-Behar. The rent of the godown of which the petitioner is the lessee was settled by contract at Rs. 333-5-0, the date of commencement of the tenancy being 20th May, 1952. On 20th March, 1954, the petitioner filed an application for fixation of standard rent and at one stage standard rent was fixed at Rs. 230/- by the Rent Controller. But that order was set aside, and after remand, the standard rent was fixed at Rs. 40. 80 np. But that order was also set aside, and no final order has yet been passed on the application for fixation of standard rent. In the meantime the opposite party landlord having served notice determining the tenancy, instituted the ejectment suit on 22-6-59 and summons was served on the petitioner on 2-7-59. The petitioner thereafter became liable to deposit arrears of rent and current rent under the provisions of section 17 of the West Bengal Premises Tenancy Act. There was an application by the tenant petitioner under section 17 (2) for determining the amount of arrears payable under the provisions of subsection (1) of section 17, as on account of the several orders of the Rent Controller fixing standard rent which were subsequently set aside, the tenant petitioner had deposited different amounts before the Rent Controller from time to time, and at one stage, on account of some mistake, rent for the same period was deposited twice over. This application under section 17 (2) was heard and decided by the learned Subordinate Judge and by the order dated 9-12-59, the learned Subordinate Judge pointed out that on account of the different orders fixing standard rent the defendant had deposited rent for five months from Manager or Agrahayan Sudi 1, 2014 to Baisakh Bodi 15, 2015 Sambat year at a lower rate of rent, and he was, therefore liable to deposit the difference. The learned Subordinate Judge observed that the defendant had deposited rent with the Rent Controller from Sravan Sudi. 1,2015 to Kartick Bodi 15,2016 Sambat Year. After making the necessary calculation, including interest, the learned Subordinate Judge ordered that the defendant do deposit into court or pay to the plaintiff the sum of Rs. 2,709. 18 np. , being the amount payable upto Manager or Agrahayan. Bodi 15,2016 with, interest at the prescribed rate within 15 days, and also continue depositing a sum equivalent to rent at the rate of Rs. 333. 31 np. by the 15th of each succeeding month and if he failed to deposit or pay any such amount, his defence against delivery of possession would be struck out.
(2.) THIS order, as already stated, was made on December 9, 1959. On December 7, 1959, the plaintiff opposite party had filed an application under section 17 (3) for striking out the defence against delivery of possession, because the summons had been served on July 2, 1959, corresponding to Ashar Bodi 2016 S. Y. , the rent from Ashar Sudi 1,2016 to Kartick Bodi 15,2016 S. Y. has been deposited with the Rent Controller and not in court as required by the provisions of section 17 (1 ). The learned Subordinate Judge heard the application under 17 (3) after disposal of this tenant's application under section 17 (2) and passed an order on February 13, 1960, on that application striking out the defence against delivery of possession on the ground that for those four months after service of summons the tenant had failed to deposit the rent in court, but had made the deposits with the Rent Controller.
(3.) AGAINST that order striking out the defence against delivery of possession the tenant has filed this revisional application. Mr. C. C. Ganguly appearing for the petitioner has urged that in his order under section 17 (2) passed on December 9, 1959, the learned Subordinate Judge had considered all rent payable upto Magsar or Agrahayan Bodi 15, 2016 S. Y. and had directed deposit of future rent month by month by the 15th of each following month, in addition to the arrears calculated by him upto the end of the month previous to the month in which the order was made and in the circumstances for a technical default for a period before the date of his first order, he could not subsequently pass an order under section 17 (3) striking out the defence.;