- (1.)This is a petition under Section 115, Code of Civil Procedure, arising out of an order made under Section 17 of the West Bengal Premises Tenancy Act, 1956. On May 4, 1959 the Plaintiff landlord instituted the suit for recovery of possession of the suit premises from the Defendant tenant. The rent is in arrears from January, 1955 till December, 1960. On September 17, 1959 the Plaintiff applied for an order under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, that the defence against delivery of possession be struck out. The Defendant contended that he was not liable to pay or deposit the arrears of rent for the period January, 1955 up to March, 1956 their recovery by suit was barred by limitation on May 4, 1959 and that he should be directed to pay or deposit the amount which was legally recover-able from him on that date and his defence could be struck out only if he made a default in carrying out this direction. The learned trial Judge rejected this contention and directed that the Defendant do deposit the arrears of rent for the period January, 1955 till December, 1960 and that in case of default his defence against delivery of possession be struck out.
(2.)Clearly there was a dispute as to the amount of rent payable by the tenant so as to attract the provisions of Sub-section (2) of Section 17. The question is whether the Defendant is liable to deposit or pay under Sub-section (2) read with Sub-section (1) of Section 17 of the arrears of rent which were not recoverable by the landlord through the process of the Court on the date of the institution of the suit 3. It is plain enough that a suit instituted on May 4, 1959 for the recovery of the rent for the period January, 1955 up to and including March, 1956 would have been barred by the law of limitation.
(3.)Section 17 of the West Bengal Premises Tenancy Act, 1956, reads as follows:
When, a tenant can get the benefit of protection against eviction.

(1) 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 write of summons on him, deposit in Court or pay to the landlord an 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 month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, 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.

(2) If any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act, the amount deposited or paid to the landlord by the tenant in accordance with the provisions, of Sub-section (1).

(3) 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.

(4) If a tenant makes deposit or payment as required by Sub-section (i) or Sub-section (2), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord.

Provided that a tenant shall not be entitled to any relief under this Sub-section if he has made default in payment of rent for four months within a period of twelve months.