NANDALAL DE Vs. SULEKHA DHAR
LAWS(CAL)-1975-12-2
HIGH COURT OF CALCUTTA
Decided on December 12,1975

NANDALAL DE Appellant
VERSUS
SULEKHA DHAR Respondents


Referred Judgements :-

SAILABALA DASSEE VS. H A TAPPASSIER [REFERRED TO]
MAHADEO PRASAD VS. SULEKHA SARKAR [REFERRED TO]
RANCHHOD LODHA VS. MADHABJI KANJI [REFERRED TO]


JUDGEMENT

- (1.)THIS appeal is by the Plaintiff. The plaintiff filed a suit for ejectment on the ground of default; The case of the defendant was that he tendered rent to the landlord in due time, but on landlords refusal to accept rent he had no other alternative but to deposit rent with the Rent Controller. That there was no fixed date by which the tenant was required to pay to the landlord and as such all the deposits made with the Rent Controller are valid deposits. The learned trial court found that there was no proper tender of rent to the landlord and that under the contract the tenant was liable to pay to the landlord by 7th of the next month for which rent was due and that being so, all the deposits made with the Rent controller are invalid deposits. He also found that the defendant is a tenant of the suit premises at a monthly rent of Rs. 60/ -. The defendant deposited Rs. 75/- per month with the Rent Controller. It is the case of the defendant that there was another go-down in the same premises in respect of which the defendant was also a tenant under the plaintiff, the rent for which was Rs. 15/- and the rent for the two tenancies was amalgamated and as such the defendant deposited Rs. 75/- per month with the Rent Controller. The trial court disbelieved the story of amalgamation. The learned Appellate Court found that there was proper tender of rent to the landlord and as the landlord refused to accept rent, the defendant deposited rent with the Rent Controller and as there was no contract as to the date by which rent was to be paid, the deposits with the Rent Controller were valid deposits. The learned Appellate Court further found that during the pendency of the appeal the plaintiff withdrew all the amounts deposited with the rent Controller and that being so, there was waiver of the notice to quit on the ground of default as the suit for ejectment was only on the ground of default.
(2.)ONE of the main points that awaits decision in this appeal is whether by withdrawal of the deposits by the landlord during the pendency of the appeal there was waiver of the notice to quit on the ground of default.
(3.)MR. Manindranath Ghosh, learned advocate appearing on behalf of the appellant draws our attention to Sections 17, 21, 23 and 24 of the West Bengal Premises Tenancy Act. It is his contention that Section 17 imposes a liability on the tenant to deposit in the court or with the Controller or pay to the landlord within one month from the service of the writ of summons all arrears of rent calculated up to the 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. The tenant is under further obligation to continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate. There is no provision in section 17 that if such deposit is made, the landlord is precluded from withdrawing the said amount. The position of the defendant under the West Bengal Premises Tenancy Act is peculiar. Even after the termination of the tenancy by a notice to quit, the defendant remains a statutory tenant so long as he not evicted from the suit premises and so long as he is in possession of the suit premises he is under obligation to pay or deposit an amount equivalent to rent. It may he mentioned in this connection that in Bam Chod -Vs-Madhabji A. I. R. (1974) Patna 211 it has been held that "the plaintiff's withdrawal of delayed rent deposits constitutes waiver of right to get defence struck out. " In this case the plaintiff came up with an application under section 17 (3) for striking out the defence on the ground that there was non-compliance by the defendant of court's order as the deposits were not make within time. The plaintiff wanted to get special advantage because of the default on the part of the defendant and that being so, if he withdraws the delayed rent deposits he cannot at the same time go on with his application under Section 17 (3 ). The position of rent deposited by a statutory tenant must be considered from a different angle. Section 21 lays down the procedure how rents are to be deposited with the Rent controller. Section 23 provides :
"the withdrawal of rent deposited under section 21, in the manner provided therein shall not operate as an admission against the person withdrawing it of the correctness of the rate of rent, the period of default, the amount due, or of any other facts stated in the tenant's application for depositing the rent under the said section, nor shall it operate as a waiver of any notice to quit given by him to the tenant except a notice on the ground of default referred to in clause (i) of sub-section (i) of section 13".
This section mainly provides that "receipt of rent deposited with the Rent Controller shall not operate as an admission of the correctness of the rate of rent, the period of default, the amount due or of any other fact stated in the tenant's application. It shall also not operate as waiver of any notice to quit given to the tenant except a notice on the ground of default referred to in clause (i) of sub-section (i) of Section 13". This section must be read also with Section 24 which provides "when there is no proceeding pending in Court for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default". This section lays down that after the termination by a notice to quit if the landlord accepts payment of rent from the tenant at a time when there is no proceeding pending in Court for the recovery of possession of the premises, such acceptance of rent in respect of the period of default shall operate as a waiver of such default. The important words are "when there is no proceeding pending in Court. . . . . " These words exclude cases in which a proceeding is pending in Court for the recovery of possession of the premises and that being so, the acceptance or withdrawal of rent cannot in any way operate as a waiver of default. In order to prove waiver because of acceptance of rent there must be proof of an agreement between the landlord and the tenant to treat the tenancy as having been revived. Acceptance of rent must be rent paid with a view to create a contract of tenancy and not with a view to come within the protection of the Rent Act (Manindra -v- Man Singh 85 CLJ 339 ). In Saila Bala -v- T. A Tapassia A. I. R. 1952 Cal. 455 a similar view was adopted and it was held that one of the elements necessary to constitute waiver of notice to quit is an intention on the part of the person giving such notice i. e. the landlord to treat the lease as subsisting, the intention of the tenant in making the deposit has also to be considered. It has been held in Mahadeo -v-Sulekha A. I R. 1954 Cal. 404 that "where such payment of rent is made to ensure protection against eviction as under any Rent control Law and is accepted by the landlord, mere acceptance of rent does not lead to an inference that the parties intend to re-establish the relationship of landlord and tenant. For the tenant to succeed, such acceptance must be shown aliunde to be attributable only to the landlord's assenting to a new tenancy coming into force". Taking into consideration the provisions enumerated in Sections referred to above and the decisions mentioned earlier we hold that in this particular case the acceptance of rent by the landlord during the pendency of the appeal could not operate as waiver of the notice to quit on the ground of default.


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