Pradyot Kumar Banerjee, J. - (1.) This appeal at the instance of the defendant-appellant arises out of a suit for eviction of the defendant from the 1st floor of premises No. 7/1A, Baghbazar Street on the ground that the defendant is a habitual defaulter in payment of rent. It is further stated that the defendant defaulted in payment of rent for May and June, 1964 and the deposits made with the Rent Controller were not valid tenders from July 1964 onwards. The defendant denied the allegation defaults and stated that the deposits were made in the office of the Rent Controller. The defendant entered appearance in the suit and made an application seeking permission for the deposit of rent for the month of March, 1964 which was alleged to be deposited at the petitioner's own risk. The application was filed on 21st April, 1965 under the West Bengal Premises Tenancy Act raising a dispute about the amount of rent in arrears and the learned Judge, City Civil Court, disposed of the application by an order dated 28th May, 1965 stating, inter alia, that a sum of Rs. 270/- as rent for the months of May and June, 1964 must be deposited within a month from the date. In default, the defence against delivery of possession shall be struck out. Subsequently on 26th July, 1965 the plaintiff filed an application under section 17(3) of the West Bengal Premises Tenancy Act stating, inter alia, that the rent for March, 1965 was not deposited within the 15th of April but that rent was deposited on 23rd April, 1965 and the rent for April, 1965 was deposited on 27-5-1965. Therefore there is a violation of section 17(1) of the West Bengal Premisses Tenancy Act and and as such the defence against delivery of possession shall be struck out. By order dated 3rd August, 1965 the learned Judge, City Civil Court, struck out the defence against delivery of possession on the ground that the rent for April 1965 was not deposited by 15th May, 1965 in accordance with section 17(1) of the Act. Thereafter the suit was heard and it was found that the notice was valid and the decree for ejectment on the ground of default was passed against the defendant. Being aggrieved by the said decree the defendant preferred the preferred the present appeal. This appeal came up for hearing before the Hon'ble single Judge of this Court who directed remand by his order dated 15th January, 1974 and for disposal of the application under section 17(2) of the West Bengal Premises Tenancy Act. Being aggrieved by the said judgment of the Hon'ble single Judge, the landlord-plaintiff herein, preferred a Letters Patent appeal and the said Letters Patent appeal was disposed of by the Division Bench of this Court, inter alia, stating that "in pursuance of the application under Section 17(2) of the West Bengal Premises Tenancy Act by the defendant tenant the court directed the tenant to deposit a sum of Rs. 270/- being the rent for two months i.e. for the months of May and June, 1964. The defendant thereafter complied with the said order. Accordingly in view of the above deposits having been made by the defendant in compliance with the said order, we do not think that the remand is necessary for determination of the application u/s 17(2) of the Act. We, therefore, allow the appeal and set aside the judgment and decree under appeal. The appeal being F.A. No. 531 of 1970 will now be placed before the appropriate Bench for hearing. There will be no order as to costs". In view of that order, the appeal has been placed for hearing before us.
(2.) Mr. M. N. Ghose on behalf of the appellant contended that the order striking out the defence under section 17(3) of the Act was without jurisdiction and as such the said order should be set aside and the matter be remanded back to the Court below for re-hearing of the suit on merits.
(3.) Mr. Chakraborty on behalf of the respondent, however contended that against the order under section 17(3) of the Act, a revisional application was moved and the said revisional application was rejected in limine. It is argued by Mr. Chakraborty that there was a violation of the provisions of section 17(1) of the West Bengal Premises Tenancy Act, inasmuch as the current rent for the month of April, 1965 was not deposited within 15th May, 1965 and was admittedly deposited on 27th May, 1965 that was beyond the statutory period contained in section 17(1) of the West Bengal Premises Tenancy Act and therefore the order under section 17(3) of the Act was rightly passed striking out the defence against the delivery of possession. We are of the opinion that Mr. Chakraborty's contention must be upheld. Under section 17(1) of the Act after the service of the writ of summons the defendant must deposit all arrears of rent with interest within 1 month from the date of such service or within 1 month from the date of appearance of the defendant in the suit and will further go on depositing the current rent month by month within 15 days of each succeeding month. In so far as the first condition is concerned, the defendant raised the dispute under section 17(2) of the Act and the said dispute was disposed of under section 17(2) of the Act on 28th May, 1965. In the said application the point taken was that the defendant-tenant deposited the rent with the Rent Controller after due tender to the plaintiff-land-lord. There is a deposit of Rs. 135/- as one month's rent as security deposit with the landlord and furthermore the defendant had made advance payment as accommodation loan of Rs. 365/-. This argument has been repelled and the defendant was directed to deposit Rs. 365/- for the months of May and June which was done by the defendant in accordance with the direction. Therefore there was no violation prima facie under section 17(2) of the West Bengal Premises Tenancy Act and that is why the Division Bench of this Court set aside the remand order passed by the learned Judge sitting singly. In our opinion, Mr. Ghose cannot argue the case as if there was no order under section 17(2) and the order of the Division Bench is non-existent in so far as the parties are concerned which he wanted to argue and in our opinion, Mr. Ghose cannot contend before us that the order of the Division Bench was erroneous. The fact, therefore, remains whether there was a violation apart from the order under section 17(2), inasmuch as, whether the current rent for the month of April, 1965 was or was not deposited within the time allowed under section 17(1) of the Act. Admittedly the rent was deposited on 27th May, 1965, that is, beyond time fixed by the statute, and therefore the order under section 17(3) has been rightly made by the Court below. Mr. Ghose relied upon the case reported in 70 CWN 864, Gopal Banerjee v. Manidra Nath Dey in support of his contention. In our opinion the case is clearly distinguishable in the facts of the present case. The Hon'ble Judge of the Division Bench in Paragraphs 11 and 14 held as follows:- "11. Section 17(3) of the Act is a penal section in the same that because of the tenant's failure to deposit or pay the amount mentioned in sub-section (1) or sub-section (2) the Court shall order the defence against delivery of possession to be struck out. Therefore, the right to defend the suit by filing defence therein is taken away by sub section (3). To impose such a penalty on the tenant the plaintiff-landlord must bring him clearly within the language of failure to deposit or pay the amount under either sub-section (1) or sub-section (2) of section 17 of the Act. This Court finds it impossible to hold at his stage under section 17(1) of the Act that on the facts for the month of March 1964 the tenant committed a "default" within the meaning of section 17(1), and that he should have paid over again for March 1964 for which he asserts his advance, is sufficient to satisfy the payment. In arguments at the Bar a reference was made to section 50 of the Transfer of Property Act which says that rent paid bona fide to holder even in case of defective title cannot be charged over again against the tenant. That section is not applicable here because there is no question of defect of title. Here it is even a stronger case, namely, rent paid in advance between admitted landlord and admitted tenant and the claim of the tenant is to have the advance rent adjusted for the alleged default of March 1964 and his contention is that payment has ben made by such adjustment. 14. We have also considered and borne in mind one other aspect of this interpretation. A rent payable in advance becomes adjustable when the rent becomes due and not before on the principles discussed above. One questions arises that in many instances the arrangement is that this advance rent is usually adjusted at the termination of the tenancy. Therefore, in those cases if the adjustment is made then the contractual agreement between the parties is that while it is adjusted the tenant must quit. Therefore, it has been contended on behalf of the landlord that the tenant cannot have the advance rent adjusted in the manner suggested, at the same time continue his statutory protection under section 17(1) of the Act to resist eviction and continue his tenancy. The argument has an apparent attraction first because in such a case no rent remains paid in advance any more as a term of tenancy to begin with because the advance rent is adjusted against the alleged default. This arguments, however, makes a confusion between common law rights and statutory rights under these Rent Act. Section 17 is a special protection given to the tenant upon certain payments. It is not a common law right. It is a creature of this particular section of this particular Act. If, therefore, the statute gives the protection then the argument that no rent after adjustment remains in the hands of the landlord as an advance rent under the terms of contractual tenancy cannot prevail against the protection which the statute has given. In the second place, rent taken in advance is not necessarily adjustable as at the end or termination of the tenancy by the Act. That depends on the facts of each case. From that point of view the landlord cannot be heard to say that the rent was not adjustable because he himself had given notice terminating the tenancy. Therefore, the contractual tenancy in common law comes to an end with that notice to quit and what continues thereafter even after the institution of the suit by the landlord for eviction is the statutory tenancy which the statute has created with statutory incidents and obligations to continue the tenancy upon payment in Court or otherwise as provided in section 17 of the West Bengal Premises Act, 1956." We therefore hold this principle is not applicable in the facts of this case. In this case there was an order passed under section 17(2) of the Act which was complied with. The tenant failed however to comply with the statutory provision of paying current rent month by month as contained in section 17(1) of the Act. In our opinion, therefore the defence against the delivery of possession was rightly struck out and the decree on the ground of default was rightly made.;