Salil Kumar Datta, J. - (1.) In this appeal an order passed by the learned trial Judge dated February 22, 1977 is the subject matter of challenge. The plaintiffs appellants filed a suit for recovery of possession of the suit premises held by the defendant no. 1 under a tenancy in respect whereof the provisions of the West Bengal Premises Tenancy Act 1956 are applicable. In the suit the summons was served on November 15, 1976 and appearance was made by the defendant on November 22, 1976. Soon thereafter on 9th December, 1976 the said defendant, the respondent No. 1 herein took out a master summons praying for an order that the sum of Rs 1,228.45 P. represented the balance amount of rent due and payable in respect of rent for the months of April, May, June and July, 1973 with statutory interest of Rs. 341-10 P. after taking into account and adjusting the amount attached and remitted to courts against rent aforesaid in execution of several decrees obtained by the said defendant against the plaintiffs landlords and that leave might be given to the said respondent for depositing the said amount with the Registrar, O.S, with 48 hours from the date of the order to be made thereon. It was further prayed that leave be also granted for depositing the sum of Rs, 1,591.35 P. being the monthly rent for the suit premises for the month of November, 1976 within December 15, 1976 and rent for succeeding months by the 15th of the following month. On this summons an interim order was passed on December 10, 1976 giving leave to the respondent to deposit the amount as aforesaid within the period prayed for and also rent for November, 1976 within December 15, 1976 and rent for December, 1976 by 15th January, 1977 without prejudice to the rights and contentions of the parties.
(2.) The application in support of the summons was made under section 17(1) of the West Bengal Premises Tenancy Act and this application was disposed of by the impugned order passed on February 22, 1977. The learned Trial Judge held, on contested hearing though no affidavit-in-opposition was filed, that the application under Section 17(1) was maintainable in law and the petitioner, as no dispute was raised in respect of the remittances aforesaid, had duly complied with the provisions of Section 17(1) and thus was entitled to the benefit under the said provision and the protection given thereunder. The interim order of December 10, 1976 was confirmed and leave was granted to the defendant to deposit the rent for January 1976 by February 24,1977 in view of the time taken for delivery of the judgment which is now before us under appeal preferred by the plaintiffs landlords.
(3.) After hearing the learned counsel of the parties it appears to us that the order under appeal is not sustainable in law. Section 17(1) provides for deposit in Court or with the Rent Controller or for payment to the landlord of an amount calculated at the rent last paid, for the period for which the tenant might have made default upto the end of the month previous to such deposit or payment with statutory interest. Such deposits or payments are to be made within time specified in sub-section (1) or as may be extended by the Court under Sub-section (2A) in manner as may be directed. The amount to be deposited under sub-section (1) Section 17 will be in accordance with the calculation as may be made by the tenant on the basis that according to him there is no dispute about the rent payable as such dispute only will call for a determination by the Court under Subsection (2) of Section 17 of the rent payable by the tenant. At this stage for deposit or payment of rent under Section 17(1) when no application for determination of the rent payable is made by the tenant under Sub-section (2), the court is not required in law to adjudicate or determine as to whether the amount for which leave for deposit is prayed for by the tenant under sub-section (1) represents the correct amount or not, or, to pass any directions in respect thereof. In fact, no application is required to be made nor any order of the court is necessary for such deposit in court under section 17(1) as Rule 42A of Chapter XXIV of the Original Side Rules indicates whereby a deposit under the said section 17(1) is to be made by the tenant upon-a requisition to the Registrar in Form No. 7 appended thereto. When and if such application is made under section 17(1) to the Court for deposit of rent due and if the Court passes any order thereon, such order is purely a formal order without any adjudication by or imprint of court as to the validity of such deposit, which the tenant makes at his risk, involving penal consequences of sub-sec. (3) of section 17 in case the Court finds that such deposit was not in accordance with sub-sec. (1) or Clauses (a) or (b) of sub-sec. (2A). It may be mentioned that the decision in Honuman Estates (P) Ltd. v. Dhanuka Industries (P) Ltd. and others 79 CWN 88 , the Court was concerned with an application made by the tenant under section 17(1), (2) and (2A) which is not the case before us.;