DEBANGSU BASAK, J. - (1.) A judgment of affirmation was challenged by way of the present second appeal. A suit for eviction on the ground of default of payment of rent was filed by the respondents against the appellants. In the previous suit for eviction between the parties, the appellants were found to be defaulters in payment of rent and were afforded the protection against eviction under Section 17(4) of the West Bengal Premises Tenancy Act, 1956. The appellants claimed that, they were not defaulters for the second time, since they deposited rent for the period of alleged default in the previous suit between the same parties. The Trial Court held that, the deposits made in the previous disposed of suit were not valid. The appellants were found to be a defaulter of payment of rent for a period of four months within a period of 12 months and not being entitled to protection against eviction. The suit was decreed against the appellants. The appellants were directed to vacate the suit premises. On appeal, the judgment of the Trial Court was upheld which gave rise to the second appeal.
(2.) BY an order dated November 24, 2003 the second appeal was admitted. The second appeal was directed to be heard on the following substantial question of law: ­ "whether the deposits made in the previous suit, since disposed of, could be treated to be a default on the ground that the defendant had obtained the benefit of Section 17(4) in the earlier suit without any proof of mala fide on the part of the defendant when the alleged deposit is stated to have been made on the wrong advice of the Counsel which has not been disbelieved by both the Courts and a decree for eviction could be passed." Mr. Jiban Ratan Chatterjee learned Senior Advocate for the appellants contended that, the appellants had deposited the rent for the alleged period of default bona fide in the previous disposed of suit. He referred to Rule 665 of the Civil Rules and Orders and submitted that, a deposit Challan was required to be passed by a Court before any money could be deposited in Court. In the instant case, Challans for deposit of rent were passed by the Court in the previous disposed of suit. Only after such Challans were passed did the appellants deposit the rent in the previous disposed of suit. The deposit of rent in the previous suit was a mistake of the Court. The appellants should not be made to suffer due to the mistake of Court. He contended that, it was the duty of the Court to verify whether the amounts deposited by the appellants were correct. He relied upon 2002 Volume 1 Calcutta Law Journal page 600 (Sri Sanat Kumar Dey v. Anil Kumar Das). Mr. Chatterjee also relied on 86 Calcutta Weekly Notes page 1081 (Ahi Bhusan Maitra v. Sm. Ira Bose & Anr.) and submitted that, the respondents never demanded rent from the appellants after the disposal of the first suit. The respondents not having demanded payment of rent after the disposal of the first suit, his clients could not be held to be a defaulter.
(3.) MR . Kartick Chandra Bhattacharya, learned Advocate for the respondents contended that, Section 21 of the West Bengal Premises Tenancy Act, 1956 was clear. Under Section 21 of the West Bengal Premises Tenancy Act, 1956 a deposit was permitted only under the circumstances specified. Those conditions were not satisfied in this case. Reliance was placed on All India Reporter 1969 Calcutta page 104 (Manickchand Durgaprosad and Bros. v. Balukidas Baheti) in support of such contention.;