CHITTATOSH MOOKERJEE, J. - (1.) SMT . Durga Devi, the appellant in F.A. No. 493 of 1980 had been a monthly tenant under the plaintiff-respondent in respect of four rooms, one bath room and a kitchen on the first floor of Premises No. 41, Rafi Ahmed Kidwai Road at a rent of Rs. 200/- per month payable according to English calender. N.N. Mansukhani was also a monthly tenant under the plaintiffs-respondent in respect of one room and one bath room on the first floor of the same premises at a rent of Rs. 86/- per month payable according to English calender.
(2.) IT is the common case of both parties that both the aforesaid tenants had committed defaults in payment of rent since June, 1966 and accordingly the plaintiff-respondent had instituted Ejectment Suit Nos. 102 and 103 of 1968 respectively in the City Civil Court at Calcutta for their eviction under clause (i) of sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act. Both the defendant-tenants have deposited all arrears of rent, interest due thereon and had complied with the provisions of sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act and accordingly in the said two previous Ejectment Suit Nos. 102 and 103 of 1968 the respective defendant tenants were granted benefits of sub-section (4) of Section 17 of the said Act. The defendant tenants did not pay to the landlord or deposit in the office of the Rent Controller their respective rents for more than four months within a period of 12 months since August, 1969. Thereupon, the plaintiff-respondents had filed the instant two suits against them for eviction under Section 13(1)(i) of the West Bengal Premises Tenancy Act. The learned Judge, 13th Bench, City Civil Court has decreed the said two ejectment suits, inter alia, holding that in view of the proviso to sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act both the defendants were not entitled to relief against ejectment under Section 13(1)(i) of the said Act. The case of both the defendant-appellants was that one Shri Anath Bandhu Aditya, Pleader, had been entrusted by them to pay their rent since August, 1969 to the landlord. Said Anath Bandhu Aditya neither paid the rent of the suit premises to the plaintiffs nor did he deposit the said amounts in the office of the Rent Controller. The defendants had filed a criminal case against the said Anath Bandhu Aditya for breach of trust and a learned Presidency Magistrate, Calcutta had convicted the said lawyer. We understand that the appeal preferred by the said Anath Bandhu Aditya against his conviction was also subsequently dismissed by the High Court.
(3.) MR . Bankim Chandra Dutt, learned Advocate for the appellant, has submitted that both the defendants cannot be considered as defaulters since August, 1969 because non-payment of their respective rent since August, 1969 was not deliberate, wilful or intentional. According to Mr. Dutt, the default under clause (i) of sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act means deliberate and wilful non-payment. Secondly Mr. Dutt has submitted that Shri Anath Bandhu Aditya being a lawyer, payment by the defendants of the rent for the period in question to said Anath Bandhu Aditya amounted to due discharge of their obligation to pay rent. Mr. Dutt further submitted that the said learned lawyer having misappropriated the money handed over by the defendants, the defendants themselves cannot be treated as defaulters.;