SRINIWAS SUREKA Vs. MADANLAL SEKHSARIA

JUDGEMENT

(1.) The appellant in this case is a tenant. A suit was filed against him for ejectment on the ground of default. The appellant resisted the suit on the ground that there was no default and the appellant took certain other points, namely, defects in the notice to quit. Before the trial Court the suit was heard and it was found that there had been default for more than 4 months within a period of 12 months prior to the institution of the suit. It has been further held by the learned trial Judge that the notice to quit was valid and had been properly served. A decree for ejectment was passed. The defendant tenant appealed therefrom. The main, ground of appeal is based on en amendment introduced in Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act, 1956. Previous to the amendment the law was that if there was more than 4 months default within a period of 12 months prior to the suit then the tenant lost his right of protection, even though he had complied with the provisions of Section 17 (1) or (2) of the said Act; in other words, the tenant was required to comply with the provisions of Section 17 (1) or (2) and even if it, had so complied a default of 4 months within a period of 12 months prior to the suit took away the protection. When the suit was decreed by the learned trial Judge, it was found the matter came within the proviso to Sub-section (4) of Section 17 and there having been default of 4 months within the period of 12 months prior to the suit, the tenant had lost his protection and a decree was paused for eviction. By West Bengal Premises Tenancy (Amendment) Act. 1968 (Act IV of 19681 the Sub-section (4) of Section 17 has been amended. By Sub-section (3) of Section 2 of the amending Act Sub-section (4) of Section 17 has been amended and the proviso has been altered. Under the altered proviso there was no longer taking away of protection as in the previous proviso. But it says that for once the tenant will be protected provided be has complied with Section 17 (1) or Section 17 (2) of the said Act In other words, if he has complied with the provisions of Sub-section (1) or (2) of Section 17, he will be protected even if he has defaulted for 4 months within a period of 12 months prior to the suit, but if he makes a default once more for a period of 4 months within the period of 12 months then the protection would be lost. The suit in the instant case was filed on 30th August, 1956 and it was decreed on the 19th of September. 1958. After the suit was instituted the appellant tenant duly complied with the provisions of Section 17 (1), but after the suit had been decreed, although the tenant continued to make deposit in Court, he failed to make one deposit in time, namely, for January, 1960, for a few days. According to Section 17 (1), the deposit for the month of January should have been made by the 16th of February. 1960, but it appears that the deposit was made on the 19th of February, 1960. It must further be noted that one day between these days was a holiday. In the appeal the appellant claimed before the Division Bench relief under Sub-section. (4) of Section 17 as amended, and it was contended that in terms of the amendment he was entitled to be excused for once in respect of his default. The Division Bench felt that the following question of importance arose in the instant case :--

(2.) Before the question is further considered, it will be necessary to deal with the relevant statutory provisions end certain decisions of this Court. Under West Bengal Premises Tenancy Act, 1956 the definition of 'tenant' provides as follows:--

(3.) In the case of Kanailal Dutta v. Kanailal Patra, (1963) 67 Cal WN 334 the ejectment suit was decreed by the trial Court on 28-2-1961. There was an appeal by the tenant defendant. The appeal was allowed on 30-11-1961 and the matter was sent back on remand to the trial Court. The records of the case were received by the trial Court on 26-1-1962. On 1-2-1962, the tenant applied for permission to deposit arrears of rent and with the leave of the Court the tenant deposited the arrears of rent in Court. On 19-7-1962 the landlord filed a petition under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. The said petition was allowed and the defence against ejectment was directed to be struck out. It was held by Chatterjee, J., that the word 'suit' in Section 17 of the Act did not include an appeal. In that view of the matter the defendant in the said case, having ceased to be a tenant from the date of the trial Court's decree, there could be no question of his liability for deposit rent during the time the appeal was pending in the lower appellate Court, or in other words, from 28-2-1961 to 30-11-1961. Chatterjee, J., referred to the definition of 'tenant' in the West Bengal Premises Tenancy Act, 1956 end came to the conclusion that after the passing of the decree for ejectment or order for eviction in a suit or in a proceeding by a Court of competent jurisdiction a tenant ceased to be a tenant under She Act and as such the liability of the tenant to deposit rent under Section 17(1) cf the Act could not be imposed upon him after the disposal of the matter by the trial Court. The pendency of appeal, according to the learned Judge, did not affect the position. The tenant continued to be in possession not by virtue of being a tenant under the statute but by virtue of the order of stay of the appellate Court. In the case of Radharani DASSI v. Angurbala Dassi, 67 Cal WN 501 the petitioners filed an ejectment suit which was dismissed on contest on 24-6-1958, Petitioners thereafter filed an appeal. The said appeal was allowed on 12-6-1961, and the case was remanded to the trial Court for further consideration relating to certain matters. On 11-11-1961, the trial Court received the records of the case together with the remand order, Sometime in November. 1961 the parties entered appearance in the trial Court. The landlord subsequently applied to the trial Court for an order striking off the defence of the tenant on the ground of default within the meaning of Section 17 (1) of the West Bengal Premises Tenancy Act. 1956. The trial Court dismissed the application. Against that order of dismissal, the petitioners moved the High Court. For the purpose of the said case it was held that the landlord had established the default for the month of Agrahayan 1368 B. S. The last data of Agrahayan, 1368 B. S. corresponded to 16-12-1961, Under Section 17 (1), the tenant had time to deposit in Court the monthly sum for the month of Agrahayan upto 31-12-1961. The tenant made the required deposit in Court on 11-1-1962, It was held by the Division Bench consisting of Bachawat, J., and R. N. Dutt. J. that the obligation of the tenant to make the deposit under Section 17 (1) revived as from the date of the re-admission of the suit by the trial Court after remand. Consequently, the tenant failed to deposit or pay the monthly sum for the month of Agrahayan. 1368 B. S. as required under Section 17 (1) and accordingly his defence against delivery of possession was liable to be struck off under Section 17 (3) of the Act. In the case of Lakpat Rai Marwari v. Radheshyam. (1965) 69 Cal WN 858, on 26-6-1861, an ejectment suit against the petitioner was filed on the ground of default in payment of rent. The suit was decreed ex parte on 12-7-1962. On the application under Order 9, Rule 13, Civil P. C., the ex parte decree was set aside and the suit was restored to file on 10-10-1963. On an application under Section 17 (3) of the West Bengal Premises Tenancy Act. 1956 on the ground that the tenant defendant had defaulted in paying rent from November. 1962 to September, 1963, the defence against delivery of possession was struck out on 20-3-1964. An application for review of the order also failed, D. N. Das Gupta, J., held that after the ex parte decree was passed the defend-ant did not come within the definition of "tenant" in the West Bengal Premises Tenancy Act, and for the purpose of Section 17 of the said Act the suit which was decreed on 12-7-1962 began to continue only after the suit was restored to file. In that view of the matter there was no liability upon the defendant to deposit rent under Section 17 of the Act from the date of the ex parte decree till the date of restoration of the suit. Accordingly, the order striking out the defence was not tenable in law.