Padma Khastgir, J. - (1.) The present application has been taken out by the plaintiffs against the defendant no. 1, Calcutta Chromo type Private Limited Under Section 17(3) of the West Bengal Premises Tenancy Act for an order striking out the defence of the defendant no. I against delivery of possession of the premises in suit and other consequential reliefs.
(2.) The petitioner's case shortly is that, the petitioners are the owners of the premises No. 1 Gibson Lane, Calcutta and the defendant no. I was a monthly tenant under the petitioner at a monthly rent of Rs. 1591.35p. On 6th of September, 1976 this suit was instituted against the defendants for eviction on the grounds that the defendant no. 1 being defaulter since the month of April, 1973 for a period of two months during a year and also because of the defendant no. 1 without the previous consent in writing of the plaintiffs wrongfully transferred, assigned and/or sublet part of the said premises to the other defendants ; as such the petitioners prayed fora decree for recovery of vacant possession. The writ of summons was duly served on the defendants on 15th of November, 1976 and defendant No 1 has filed its written statement. On 3rd of January, 1977 the defendant no. 1 took out an application praying for leave to deposit with the Registrar, Original Side, High Court, Calcutta a sum of Rs. 1,228.45- being the balance amount of rent due for the months of Aril, May, June and 1 July, 1973 with statutory interest in respect of the said amount, leave for depositing a sum of Rs. 1591.35p, being the rent for the month of November, 1976 and also for further leave to deposit the future monthly rent of Rs. 1591.35p. from December, 1976 onwards. The said application was moved before Mr. Justice Masud and His Lordship was pleased to pass an order on the 10th of December, 1976 in terms of prayer (a) of the petition, i.e., leave was granted to the defendant no. 1 to deposit the rent of Rs. 1591.35p. for the month of November, 1976 within 15th of December, 1976. Similarly leave was granted for the month of December, 1976 to be deposited within 15th of January, 1977 and that order was made without prejudice to the rights and contentions of the parties. L According to Respondent No. 1, as the owners of the premises failed to pay municipal taxes in respect of the said premises. Corporation had realised by way of distress warrant a sum of Rs. 4242.96- from the respondent no. I towards the owner's and occupier's shares of taxes payable by the landlords and as the landlord petitioners refused to reimburse respondent no. 1, the respondent no. 1 filed a suit in the Small Causes Court at Calcutta of recovery of the said sum with interest and costs. On November, 1970 a decree was passed in favour of respondent no. 1 against the plaintiff for a sum of Rs. 5135.09-. Thereafter the respondent no. 1 made an application under Order 21 rule 46 prohibiting the Managing Director of the respondent no. 1 and directing him to withhold the payment of the decretal amount of Rs. 3,623.34p. out of the sum of Rs. 4,774.05p. being the rent for the months of April, May, June and July, 1973 and the Respondent no. 1 was directed by the Small Causes Court, Calcutta to deposit the said sum out of the rent for the months of April, May, June and July, 1973 in Court. The respondent No. 1 duly enclosed a cheque through a letter dated 23rd of July, 1973 and forwarded the same to the Registrar, Presidency Small Causes Court, Calcutta. Under Emergency Risks (Factories Insurance Act), 1960 the petitioners herein became liable to insure the premises being the owner of the said premises. As the petitioners did not make the insurance the respondent insured the premises and paid the amount on behalf of petitioner. As the petitioners, according to respondent no. 1, failed or neglected to reimburse, the respondent no. 1 has to file a suit against the petitioners and a decree was passed for a sum of Rs. 944.68- with interest and costs and as the decretal amount was not paid the Respondent No. 1 made an application for execution of the said decree under Order 21 rule 46 and by an order dated 25th of July, 1973 passed by Small Causes Court, at Calcutta the Respondent No. 1 was prohibited from paying to the petitioner a sum of Rs. 1,104.41- out of the rents for the months of April to July, 1973 and by a letter dated August 1, 1973 the said amount was remitted to the Registrar by the Respondent No. 1. By a letter dated 2nd/4th August, 1973 the Respondent No. 1 wrote to the plaintiffs stating that after deducting the said sum of Rs. 3623.34- and Rs. 1.1C 4.41- the balance amount of rent for the month of May, 1973 would be Rs. 46.30p. and the Respondent No. 1 sent the same by postal money order to the petitioners but the petitioners refused to accept the same. Thereafter another suit was filed for Rs. 401.95 for recovery of the insurance premium paid by the Respondent No. 1. Thereafter another application was made for execution and similar order was passed prohibiting the Respondent No. 1 from paying the amount to the petitioners but directing remittance of the same to the Registrar, Small Causes Court, Calcutta which was done. The Respondent No. 1 also wanted to make payment of the balance sum of Rs. 1082.15- as the rent for month of August, 1973 by postal money order but was refused by the petitioner as such the Respondent No. 1 applied before the Rent Controller and had been depositing with the Rent Controller rent from August 1973 to October, 1976.
(3.) The Respondent entered appearance through M/s. T. Banarjee and Company. According to the Respondent No. 1 because of the prohibitory order passed by the Small Causes Court, Calcutta in the suits filed by the Respondent No. 1 against the plaintiff the Respondent No. 1 did not pay the rent to the plaintiff and the said amount has been adjusted with the Respondent No. 1's decretal dues. The respondent No. 1 after obtaining an exparte order from this court deposited 1 a sum of Rs. 1228.45- being the balance amount of rent for the months of April, May, June, July, 1973 ; Rs. 341.10 - being the statutory interest thereon and also deposited the rent for the month of November to the tune of Rs. 1591.35- aggregating Rs. 3160.90- with the Registrar, Original Side, High Court, Calcutta on the 15th of December, 1976. On the application taken out by the Respondent No. 1 before Mr. Justice Salil K. Roy Chowdhury it was urged on behalf of petitioners that the application was taken under Section 17(1) of the West Bengal Premises Tenancy Act, 1956 and the said application was misconceived as no application could be made under the West Bengal Premises Tenancy Act read with the Rules of the Original Side and further that application was also misconceived as there was no dispute with regard to the rents of the said premises It is an admitted fact that at all material times the admitted rent in respect of the said premises is Rs. 1591.35p and it was also urged by the petitioners before learned Judge that the Respondent No. 1 should deposit the entire amount of arrears of rent as it had no right to adjust any amount against the arrears of rent on the contrary the respondent is bound in law to deposit the entire amount in accordance with the provisions of Section 17(1) without making any deduction from the said arrears of rent towards the decretal dues. The said application was heard and disposed of by Mr. Justice Salil K. Roy Chowdhury on 22nd of January, 1977 His Lordship held that the Respondent No. 1 was entitled to get the benefit under section 17(1) and extended the time for deposit of the rent till 24th February 1977. Thereafter the petitioners preferred an appeal which was disposed by The Hon'ble Chief Justice and Mr. Justice Dutta in August, 1978 Sohanlal Rajgharia v. Calcutta Chromotype Private Ltd., 1979 (1) CLJ 193 whereby the appeal was allowed and their Lordships held that the order of the trial Judge was not sustainable in law as no application is required to be made under section 17(1) nor any order of Court is necessary to make the deposit of the same in accordance with law under section 17(2) read with Rule 42A of the Chapter 24 of the Original Side Rules. The said rules indicate how the deposits are to be made. Their Lordship came to the conclusion that the impugned order as passed by Mr. Justice Salil K. Roy Chowdhury was without jurisdiction and as such it was set aside except in regard to rent for the month of January, 1973 for which leave was granted to be deposited by February, 1977. The appellate court was pleased also to make it clear that the present petitioners would be at liberty to make an application under section 17(3) of the West Bengal Premises Tenancy Act contending that the requirement of section 17(1) of the Act has not been complied with by the Respondent No. 1 and if such application is made the Respondent No. 1 would also be entitled to contend that it complied with the requirement of Section 17(1) of the Act and because of the failure of the petitioner's to reimburse, the Respondent No. 1 was not obliged to deposit or pay the rent month by month 15th of each succeeding month for a sum equivalent to a sum of Rs. 1591. 35- under section 17(1) of the Act. In violation of the said mandatory provisions of the Act the Respondent No 1 did not deposit the rent with the Registrar. Original Side, High Court, During the pendency of the appeal on 13th of July, 1978 the Respondent No. 1 paid the rent for the month of May, 1978 pursuant to an exparte order whereby Mr. Justice Salil Kumar Roychowdhury extended the time to make that deposit till 13th of July, 1978. On the petitioner taking objection to the said order Mr. Justice Salil Kumar Roy Chowdhury ordered for a formal application being taken out by the Respondent No. 1 and was pleased to observe that His Lordship has not gone into the merits of the case as made out by the petitioner under section 17(3) of the West Bengal Premises Tenancy Act and in any event it would be open for the petitioners herein to take appropriate proceedings as they may be advised under section 17(3) of the West Bengal Premises Tenancy Act but all the same he gave permission to deposit the rent pursuant to the order passed on July 13tli 1978 when the tenancy of the Respondent No. 1 was terminated by a notice under section 13(6), the rent payable by the Respondent No. 1 was Rs. 1591.35- per month. According to the petitioners, the Respondent No. 1 should have deposited in court within one month from the date of service of writ of summons i.e., 15th of November, 1976 a sum of Rs. 6365.40- calculated at the rate of rent on which it was last paid for the months of April, May, June and July, 1973 together with statutory interest amounting to Rs. 1884.67 but the Respondent No. 1 did not deposit the amount mentioned above. Deposits made by the Respondent No. 1 accordingly to the petitioners were not done in accordance with section 17(1) as the Respondent No. 1 was not entitled to deduct any money whatsoever from the rent or the interest as such the Respondent No. 1 has become defaulter. The petitioners further contended before me that Mr. Justice Salil K. Roychowdhury was not taking matters relating to land-lord and tenant or interlocutory matters as such any order extending time to deposit the said amount for the month of May 1978 was passed without jurisdiction ; as such the said deposit for the month of May, 1978 becomes irregular and invalid ; hence this application has been made for necessary reliefs.;