JUDGMENT
Basudeva Panigrahi, J.
1. In the instant revisional application the defendant in Title Suit 94 of 1987 pending in the Court of Munsif, Additional Court, Jangipur challenged the validity, legality and propriety of the order allowing the prayer of the opposite parties/plaintiffs under Section 17(3) of West Bengal Premises Tenancy Act.
2. The facts leading to the present revisional application are stated as follows :-
The plaintiffs/opposite parties brought the aforementioned suit in the court of the Munsif at Jangipur, which on transfer to the Additional Court of Munsif has been registered as T.S. 94 of 1987 against the petitioner for the khas possession of the suit premises by evicting him therefrom and for other reliefs. It is stated in the plaint that one Sripati Nath Sarkar, who has the owner of the premises sold it in favour of the plaintiffs under the strength of 4 sale deeds. The petitioner was a monthly tenant even prior to the purchase by the plaintiffs on a rental of Rs. 100/- per month according to the Bengali calendar months. The predecessors-in-interest of the plaintiffs/opposite parties gave oral notice about the said sale. But when the petitioner even after the notice did not pay rent, the plaintiffs were obliged to file the suit for ejectment on the ground of bonafide use and occupation, building and rebuilding and default in payment of rent.
3. The petitioner stated, inter alia, in his written statement that there was no legal, valid and sufficient notice prior to the filing of the suit. Sambhu Sarkar who was the admitted owner of the premised allowed the petitioner to occupy the premises at a monthly rental of Rs. 90/- but used not to pass receipt on the pretext that is case such receipt was Issued to the petitioner, the municipality might enhance the tax and other dues. The petitioner submitted an application under Section 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, inter alia, challenging the rate of rent as well as the period of defaul’t. The learned Munsif by his order dated 28th March, 1988 determined the rate or rent at Rs. 90/- and not at Rs. 100/- and further found the total arrears as Rs. 6120/- and further directed the petitioner to pay the said amount in 20 monthly instalments together with statutory interest accrued thereon. It is submitted by the petitioner that while passing the order no sufficient care was taken by the Munsif to determine the rate of interest nor determined the monthly Instalments payable by him. Thus no specific order directing the petitioner at what rate the amount was to be payable month by month on instalment basis was indicated.
4. The plaintiffs/opposite parties subsequently submitted an application under Section 17(3) of the West Bengal Premises Tenancy Act, inter alia, alleging that the petitioner has defaulted in depositing the rent as per the provisions of Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act without specifying the default alleged to have been committed by the petitioner. The petitioner by his written objection denied all the allegations, Inter alia, stating that the plaintiffs/opposite parties mischievously filed this application with a malafide motive to somehow or other secure ejectment order in their favour. The petitioner further submitted that he had never committed any default and has been continuously depositing rent pursuant to the direction., But unfortunately, the learned Trial Court as submitted by the petitioner had allowed the prayer of the opposite parties by striking-off the defence of the petitioner. Therefore, he had to challenge the validity of the order by moving this Court In Civil Order 1032 of 1982. This court allowed the said revisional application, inter alia, giving opportunity to the plain tiffs /opposite parties to amend the petition under Section 17(3) of the said Act within 7 days and gave liberty to the petitioner to file objection against such amended petition. The plaintiffs/opposite parties, however, made a fresh application under Section 17(3) of the West Bengal Premises Tenancy Act, inter alia, alleging that by order 23rd March, 1988 the application under Section 17(2) and 17(2A) of the West Bengal Premises Tenancy Act was disposed of directing the petitioner to deposit the arrear of rent from Agrahayan 1387 B.S. to Ashar, 1393 B.S. amounting to Rs. 6120/- in 20 instalments together with statutory Interest, and that the petitioner was depositing rent with the State Bank of India, Jangipur after 15th of every succeeding month by which he did not deposit rent with interest and further failed to furnish such particular regarding deposit, which deposits according to the plaintiffs/opposite parties was out of time and as such, the petitioner having violated the order passed under Sections 17(2) and 17(2A) his defence is liable to be struck of. The petitioner filed the written objection, inter alia, stating that while disposing of the application under Sections 17(2) and 17(2A), the learned Munsif did not determine the statutory Interest and further did not specify the actual monthly instalments payable, as such it is yet to be determined whether the petitioner had at all defaulted in payment of interest when there was no proper order. It was asserted by the petitioner that the learned Trial Judge has failed to discharge its statutory duties, though inadvertently, in the matter of calculation of interest payable in terms of the relevant provisions of the Act. It is further indicated that the months for which the instalments fell due which the plaintiffs/opposite parties have alleged that the petitioner has committed default, have not been mentioned In the order passed by the learned Munsif under Sections 17(2) and 17(2A). In that event even assuming such deposits were not made within time, it could not be said that the petitioner had not complied with the direction passed by the court under Sections 17(2) and 17(2A). The learned Munsif, of course, on hearing the parties has allowed the prayer of the plaintiff/opposite parties and consequently struck of the petitioner’s defence in the ejectment suit.
5. Mr. Banerjee, the learned counsel appearing for the petitioner has vehemently argued that in this case the Trial Court has wrongly exercised its Jurisdiction in accepting the prayer of the plaintiffs/opposite parties in striking the defence of the petitioner. It was further urged that the learned Trial Court has erroneously interpreted the provisions of subsection (3) of Section 17 of the West Bengal Premises Tenancy Act as mandatory though it has been already held by the Apex Court in a decision in the case of B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr. to be directory. In the above back-ground it is necessary to quote the provisions of Section 17(3) and its proviso (4) :-
“(3) If a tenant fails to deposit, or pay any amount referred to in subsection(l) of Sub-section (2) within the time specified therein or within such extended time as may be allowed under Cl.(a) of Sub-section (2A), or fails to deposit or pay any instalment permitted under section (b) of Sub-section (2A) within the time fixed therefore, the Court shall order the defence against delivery of possession to be struck-out and shall proceed with the hearing of the suit ;
(4) If a tenant makes deposit or payments required by Sub-section (1), Sub-section (2), or Sub-section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord :
Provided that a tenant shall not be entitled to any relief under the Sub-section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months”.
6. While interpreting the above proviso the Apex Court held that the construction of the Sub-section (3) of Section 17 should be held as direct of mandatory. If it is construed to be mandatory, it shall be too harsh against a tenant in a suit for eviction. The legislature in its wisdom, therefore, has included the Sub-section (4) while determining the persistent default by a tenant in so far as payment of monthly rent is concerned. Keeping the above principle in mind let me now analyse the fact pleaded in this case. While deciding the application filed by the petitioner under Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act the court has passed the following order :
“That the petitioner under Section 17(2) of the W.B.P.T. Act filed by the defendant petitions is allowed on contest in part and the petition under Section 17(2)(A) of W.B.P.T. Act is allowed on contest. The monthly rate of rent of the suit premises is assessed at Rs. 90/-(Rupees Ninety only). The defendant petitioner is liable to pay Rs. 6,120 (Rupees six thousand one hundred twenty only) as arrear rent of the suit premises to the plaintiffs for the month of Agrahayan 1387 B.S. upto the month of Ashar 1393 B.S. together with the statutory interest accrued thereon in twenty equal instalment commencing from the next Bengali Calendar month along with the current rent month by month. If there be any fractional balance that should be paid along with the last instalment.”
7. The petitioner was directed to pay the arrears of rent for the month of Agrahayan 1387 B.S. upto Ashar 1393 B.S. together with statutory interest accrued thereon in twenty instalments. From the impugned order it has emerged that the learned Trial Court has not taken the default of the petitioner in making deposit for Magh 1393 B.S., Falgun 1393 B.S. These period relate prior to the filing of the application under Section 17(2). No such direction was made by the learned Trial Court against the petitioner to pay the rent on his application under Section 17(2). Therefore, in case any default for not more than four months rent due in a year payable by the tenant has been committed, then the court may condone him by invoking the provisions under Section 17(4) of the W.B. P.T. Act. Furthermore in the earlier order under Section 17(2) the tenant was not directed for payment of this amount. As a matter of fact for the present the rent has been, undoubtedly, deposited by the petitioner. Though there is slight delay in deposing the rent but within next following month those amount was deposited. In respect of Magh 1393.B.S. the rent ought to have been deposited/paid on or before 27th of February, 1987. The challan was tendered in court on 2nd March, 1987 which was passed on 3rd March, 1983 and the amount was deposited on 11th March, 1987, Therefore, in the above back-ground before accrual of rent payable for the month of March it was actually deposited in court. Similarly for the month of Falgun, 1393 B.S. the rent ought to have been deposited on or before 15th Falgun, 1393 B.S. which as per the English calendai it is on or before 30th March, 1987. The challan was passed on 31st March, 1987 and the deposit was made on 11th April, 1987. Therefore, before the accrual of rent for the month of April the amount was also deposited. In the peculiar circumstances it cannot be held that the tenant is a persistent defaulter in paying or depositing rent to the landlord.
8. In respect of Baisakh, 1394 B.S. and Jaistha 1394 B.S. the amount of rent payable on 19.6.87 the challan was tendered for approval on 3.7.87 and it was deposited on 13.7.87. Therefore, for the year 1394 B.S. even the petitioner has slightly defaulted in clearing-up his arrear of rent. It was only for two months and the statute permits him four months in a year. Thus it could not be argued that he was a persistent defaulter. So far as month of Baisakh 1395 B.S. is concerned, the rent appears to be payable on or before 26th May, 1988 of the English calendar month. The challan was tendered and approved on 30th May, 1988 and the rent was deposited on 3rd June, 1988. There was a delay of about a week which cannot be said that there was intentional default in depositing the rent. For the month of Jaistha, 1395 B.S. the rent was payable on or before 25th June, 1988. The rent ought to have been payable on 15th Ashar, 1395 B.S. But it was deposited on 13th Ashar 1395 B.S. equivalent to English Calender 15th July, 1988. In this back-ground it can legitimately be held that the petitioner has deposited rent in time.
9. In so far as the arrears of rent is concerned it is already indicated in the previous order that the learned Trial Judge has not directed the petitioner to make any payment for the aforesaid period. Therefore, it cannot be said that he had defaulted in paying rent. In this connection a decision is relied upon by the petitioner reported in 1978(1) CLJ at page 645 in the case of Pulin Kumar Chowdhury v. Sachlndra Mohan Bose and Anr., wherein it has been held :-
“The defendant’s petitioner under Sub-sections (1) and (4) of Section 17 was misconceived inasmuch as neither of the two Sub-sections contemplates the filing of any application of Use present nature. Further, the court at the stage of passing the decree has to consider under Sub-section (4) whether the defendant-tenant had complied with the provisions of Sub-sections (1),(2 ) or (2A) of Section 17 and whether the decree under Section 13(l)(i) of the Act could be passed against him. That stage has not yet reached. But still then, there is another reason why this Rule should succeed. Sub-section (2A) starts with the non obstante clause “notwithstanding anything contained in Sub-section (1) or Sub-section (2)……” In other words, Sub-section (2A) engrafts an exception to the provisions of Sub-section (1) and Sub-section(2) to the extent contained in Sub-section(2A). Further the proviso to clause (b) of Sub-section(2A) lays down that where payment is permitted by instalments such sum shall include all amounts calculated at the rate of rent for the period of default Including the period subsequent thereto upto the end of the month previous to that in which the order under this Sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the dale when the amount was payable upto the date of such order. Therefore it is clear that the court in making the order under Sub-section (2A)(b) shall include the total amount due upto the end of the month previous to the month in which the said order was being made.
10. Where the court Itself through inadvertance had failed to discharge its statutory duty in the matter of calculation of the arrear rent and the interest to be paid by instalments in terms of Section 17(2A)(b) read with the proviso thereunder, there could be no question of waiver of such a statutory provision. Therefore, unless and until an application under subsection (2A) of Section 17 is disposed of by the court the provisions of Section 17(3) cannot be invoked. Only after a valid order under Sub-section (2A) is made and there is a breach of the said order, the question of striking out of defence against delivery of possession under Section 17(3 )can arise.”
11. Mr. Banerjee, the learned counsel appearing for the petitioner has drawn my attention to a decision in the case of Shyamcharan Sharma v. Dharamdas wherein it has been held:-
“Where a tenant deposits the arrears of rent within time allowed by the court but during pendency of suit for eviction and appeal thereto, deposits the monthly rent a day or two beyond the prescribed date on some occasions, held, the court had discretion to condone the delay and if the court granted extension of time for payment of monthly rent the tenant would not be liable to eviction.
12. It is true that in order to entitle a tenant to claim the protection of Section 12(3),the tenant has to make payment or deposit as required by Section 13, that Is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent. It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straightway, to a decree for eviction. Section 13(6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty for a decree for eviction being straightway passed against him. Section 13(6) vests in the court, the discretion to order the striking out of the defence against eviction. In other words, the Court, having regard to all the circumstances of the case, may or may not strike out the defence. If Section 13 were to be construed as mandatory and not as vesting discretion in the court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by Section 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction. Section 13 quite clearly confers a discretion, on the Court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by Section 13(1). If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by Section 13(1) the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence. Any other construction may lead, in some cases, to a perversion of the object of the Act, namely, “the adequate protection of the tenant.” As the Court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection of Section 17(3).”
13. Mrs. Ghosal, the learned advocate appearing for the opposite parties/plaintiffs has relied on a decision in the case of Mrinalini B. Shah and Anr. v. Bapalal Mohanlal Shah. On a careful reading of the decision I found the Apex Court in the aforementioned case had examined whether the provisions of Section 12(3)(b) was directory or mandatory. The Supreme Court while taking into consideration of the above provision of Bombay Rents, Hotel and Lodging House Rates Control Act No. LVI1 of 1947 has also held that a payment or tender characterised by a reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clocklike precision and exactitude, but it must be reasonably conformed with the substantial proximity to the sequence of times or intervals at which the rent falls due.
14. Thus where the rent is payable month by month, the tenant must if he wants to avail the benefit, tender or pay it every month as if falls due. Taking the rationale of the above Judgment and also in the facts and circumstances of this case I hold that the tenant has ever made any deliberate, Intentional or persistent default so as to be penalised by striking out of his defence against ejectment. In the result, I set aside the order passed by the court below dated 19th April, 1990 and direct the suit be decided on merits after hearing the parties. It is argued by Mrs. Ghosal that the suit has become sufficiently old and the landlord has been unreasonably deprived of getting the benefit of decree of eviction. In the above premises I direct the Trial Court to reject the application for adjournment brought by any party unless it is unavoidable. The learned Trial Judge shall conclude the hearing of the suit within four months from the date of communication of the order after giving both the parties an opportunity of adducing evidence and after hearing them. Accordingly the application succeeds.