PETITIONER:
KALURAM ONKARMAL AND ANOTHER
Vs.
RESPONDENT:
BAIDYANATH GORAIN
DATE OF JUDGMENT:
11/02/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1965 AIR 1909 1965 SCR (3) 34
ACT:
West Bengal Premises Tenancy Act. (12 of 1956), ss. 17,
21 and 22--Suit for eviction--Deposit of rent by tenant
with Rent Controller and not in Court during pendency of
suit--If defence could be struck off under s. 17(3).
HEADNOTE:
The appellant and respondent were the tenant and owner
respectively of premises to which the West Bengal Premises
Tenancy Act, 1956, applied. The respondent filed a suit,
under s. 13 of the Act, for the eviction of the appellant
on various grounds. The appellant denied the allegations and
contested the suit. Before the suit was filed, the appellant
was depositing the rent for the premises with the Rent
Controller under s. 21 of the Act, because, the respondent
was not prepared to accept the rent. The appellant continued
to deposit the rent with the Rent Controller even after the
suit was filed and the summons was served. Alleging that as
soon as the suit was filed and a period of one month from
the date of service of the summons on the appellant had
expired, it was obligatory on the appellant under s. 17(1),
to pay the amount in court and not with the Rent Controller,
the respondent filed an application for striking out the
defence of the appellant in the suit. The application was
allowed by the trial court. The appellant's revision
petition to the High Court was dismissed, following the
decision of a Special Bench of the High Court in Siddheswar
Paul v. Prakash Chandra Dutta, A.I.R. 1964, Cal. 105.
In the appeal to this Court it was contended
that the majority view in Siddheswar Paul's case that s.
22(3) does not apply to cases falling under s. 17(1) was
wrong, because, the deposit made by the appellant under s.
21 with the Rent Controller constituted payment of rent by
him to the landlord. under s. 22(3); and therefore, there
was no scope for invoking s. '17(3) against the appellant
inasmuch as the basis of s. 17(3) was that the tenant whose
defence was sought to be struck out had committed a default
in the payment of rent.
HELD: Section 17(1) is a complete scheme by itself and
the legislature has intended that in suits or proceedings to
which the section applies the payment of rent by the tenant
to the landlord must be made in the manner prescribed by the
section. The legislature wanted the section to control
the relationship between the landlord and the tenant as
prescribed by it. once a suit or proceeding for ejectment
was instituted and a period of one month from the date of
service of the writ or summons on the defendant had
expired. Even in cases where the tenant might have been
depositing the rent with the Controller under s. 21, he has
to comply with s. 17(1) before the period prescribed by the
section had elapsed, because, as soon as a suit is filed
against the tenant by the landlord for eviction, s. 17 which
is a special provision, comes into operation, and it is the
provisions of that special section that must prevail in
cases governed by it. The object is. when a suit or
proceeding has commenced between the landlord and the tenant
for ejectment and the tenant had received notice of it, the
payment of rent should be made in court to avoid any
disputes in that behalf. The majority view in Siddheswar
Paul's case correctly represents the true scope and effect
of s. 17. as distinguished from ss. 21 and 22. [42E; 431-F;
45G-H]
35
Therefore, even the valid deposit made under s. 21 could
not be permitted to be pleaded by the tenant when the
application was made against him under s. 17(3). [43C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 875 of
1964.
Appeal by special leave from the judgment and order
dated April 10, 1964, of the Calcutta High Court in Civil
Rule No. 4439 of 1962.
N.C. Chatterjee and D. Goburdhan, for the appellants.
P.K. Chatterjee and D.N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. Appellant No. 1, Kaluram Onkarmal,
was let into possession of the premises described as holding
No. 182H, G.T. Road, Asansol as a monthly tenant under
Harbhajan Singh Wasal who was the owner of the said
premises. The rent agreed to be paid was Rs. 35 per month
payable according to the English Calendar. It appears that
in 1953, the Calcutta National Bank Ltd. (now in
liquidation) sued the owner Wasal on the original side of
the Calcutta High Court on a mortgage. In the said suit,
a preliminary decree was passed and in due course, it was
followed by a final decree. During the proceedings of the
said suit, Mr. K.K. Ghose was appointed Receiver of the
mortgaged properties, including the premises in the
present suit. On February 18, 1960, the Receiver put
the mortgaged properties to sale and the respondent,
Baidyanath Gorain, purchased them. The said sale was
confirmed by the Calcutta High Court on March 1, 1960. That
is how the respondent became the owner of the suit premises
along with other properties under mortgage. After he
acquired title to the suit premises in this manner, the
respondent informed appellant No. 1 about the same by his
letter dated the 2nd April, 1960.
On December IL 1961, the respondent sued appellant No.
1, and appellant No. 2, Kaluram Bajranglal in the First
Court of the Muns if at Asansol for ejectment. He claimed
vacant possession of the premises let out to appellant No. 1
on several grounds. He urged that he reasonably required the
premises for rebuilding them after .demolishing the existing
structure. According to him, the existing structure had
become very old and was in a dilapidated condition. He also
alleged that appellant No. 1 had unlawfully sublet the suit
premises to appellant No. 2, and that he had failed to pay
or deposit the rents for the last three years in accordance
with law.
The claim for ejectment thus made by the respondent was
disputed by appellant No. 1 on several grounds. Appellant
No. 1 denied that the respondent required the suit premises
for rebuilding, and also disputed his allegation that he had
sublet the said
36
premises unlawfully. In regard to the averment made by the
respondent that appellant No. 1 had failed to pay or deposit
the rents due for the last three years, appellant No. 1 made
a detailed dental. He urged that the rents had been
regularly paid to the owner in tune before August, 1960, and
he pleaded that since the month of August, 1960 when he
found that the owner was not prepared to accept the rents
from him, he deposited them with the House Rent Controller,
Asansol, from month to month. It was his case that notice
had been served on the owner in respect of these deposits
from month to month as provided by section 21(3) of the West
Bengal Premises Tenancy Act, 1956, (Act XII of 1956)
(herematter called ‘the Act’). The written statement further
averred that the deposit of the monthly rent continued to be
made regularly under s. 21 and that the rent for March, 1962
had been duly deposited on April 10, 1962. This written
statement was filed on April 11, 1962.
During the pendency of this suit, the respondent made an
application under s. 17(3) of the Act and claimed that the
defence of appellant No. 1 against delivery of
possession should be struck out, because he had failed to
deposit or pay the amount in Court as required by s. 17(1)
of the Act. This application was strenuously opposed by
appellant No. 1 on the ground that s. 17(3) could not be
invoked against him in view of the fact that he had been
depositing the rent from month to month under s. 21. and he
urged that the deposit of rent thus made by him amounted to
payment of rent by him to the respondent under s. 22(3) and,
therefore. no default had been committed by him at all. This
dispute raised the question about the true scope and effect
of the provisions of s. 17(3) and s. 22(3) of the Act. The
learned trial Judge held that notwithstanding the fact that
appellant No. 1 had been depositing the rent from month to
month under s. 22 with the Rent Controller, having regard to
the provisions contained in s. 17(1) his failure to deposit
the relevant amount in Court incurred the liability to have
his defence struck out under s. 17(3). In coming to this
conclusion, the learned Judge followed a decision of the
Division Bench of the Calcutta High Court in Abdul Majid v.
Dr. Samiruddin(1). Having held that s. 17(3) applied, the
learned Judge directed that the defence raised by appellant
No. 1 against the claim of the respondent for delivery of
possession of the suit premises must be struck out.
This order was challenged by both the appellants by
preferring a revision application before the Calcutta High
Court. Before this revision application reached the stage
of hearing, the question raised by it had already been
concluded by a majority decision of the Special Bench of
the Calcutta High Court in Siddheswar Paul v. Prakash
Chandra Dutta(2). The learned single Judge who heard this
(1) 62 C.W.N. 555.
(2) A.I.R. 1964 Cal. 105.
37
revision application was naturally bound by the said
majority decision, and applying the said decision, he held
that the order passed by the learned trial Judge striking
out the defence of appellant No. 1 under s. 17(3) of the Act
was justified. It is this order which is challenged by Mr.
N.C. Chatterjee on behalf of the appellants in the present
appeal which has been brought to this Court by special
leave. Mr. Chatterjee contends that the majority decision of
the Special Bench in Siddheswar Paul’s case(1) is erroneous
and has proceeded on a misconstruction of the tone, scope
and effect of the two relevant section of the Act–ss. 17 &
22. That is how the short question which falls for our
decision in the present appeal is: what is the true scope
and effect of the provisions prescribed by sections 17 and
22 of the Act? It appears that the Special Bench in
Siddheswar Paul’s case was .divided on this issue; the three
learned Judges have taken the view that s. 22(3) does not
apply to cases falling under s. 17(1), whereas two other
learned Judges have come to the conclusion that if a tenant
had made a deposit with the Rent Controller to which s.
22(3) applies, section 17(3) cannot be invoked against him.
The separate judgments delivered by all the learned Judges
who constituted the Special Bench have dealh with the point
at great length and each one has subjected the said two
provisions to a close analysis and examination. In the
present appeal, we propose to consider the matter in a broad
way and will confine ourselves to some general
considerations which flow from the construction of the two
relevant provisions and which. in our opinion, support the
view taken by the majority of the Judges in the Special
Bench.
Before addressing ourselves to the main point in dispute
between the parties, it is necessary to refer broadly to the
scheme of the Act and its main provisions. The Act was
passed in 1956 and superseded the earlier Act XVII of 1950.
The Act consists of seven Chapters. Ch. I deals with
definitions; Ch. II contains provisions regarding rent; Ch.
III coveys suits and proceedings for eviction; Ch. IV has
reference to deposit of rent; Ch. V considers the question
of appointment of the Controller and other Officers, their
powers and functions; Ch. VI provides for appeals, revision
and review; and Ch. VII deals with penalties and
miscellaneous provisions. Section 2(b) defines a
“Controller”; s. 2(c) defines “fair rent”; s. 2(d) defines a
“landlord”; and s. 2(h) defines a “tenant”. A tenant,
according to s. 2(h), includes any person by whom or on
whose account or behalf, the rent of any premises is, or but
for a special contract would be payable and also any person
continuing in possession after the termination of his
tenancy, but shall not include any person against whom any
decree or order for eviction has been made by a Court of
competent jurisdiction. Section
(1) A.I.R. [1964] Cal. 105.
38
4(1) provides that a tenant shall, subject to the provisions
of the Act, pay to the landlord: (a) in cases where fair
rent has been fixed for any premises, such rent; (b) in
other cases, the rent agreed upon until fair rent is fixed.
Section 4(2) lays down that rent shall be paid within the
time fixed by contract or in the absence of such contract,
by the 15th day of the month next following the month for
which it is payable; and under s. 4(3), any sum in excess of
the rent referred to in sub-s. (1) shall not be recoverable
by the landlord. These provisions are in conformity With the
pattern which is usually adopted by Rent Restriction
Acts.The rest of the provisions of Chapter II deal with the
fixation of standard rent; with the said provisions, we are
not concerned in the present appeal.
Chapter III which deals with suits and proceedings for
eviction contains s.- 17 which falls to be considered in
the present appeal. Section 13 which affords protection to
tenants against eviction, lays down that notwithstanding
anything to the contrary in any other law, no order or
decree for the recovery of possession of my premises shall
be made by any Court in favour of the landlord against a
tenant except on one or more of the grounds specified by
clauses (a) to (k). Amongst these clauses, it is clause (i)
which deals with a case where the tenant has made default in
the payment of rent for two months within a period of twelve
months or for two successive periods in cases where rent is
not payable monthly. Section 14 imposes a restriction on
subletting. Section 15 prohibits a tenant from receiving any
sum or consideration for relinquishment of tenancy; and s.
16 provides that the creation and termination of sub-
tenancies shall be notified in the manner prescribed by it.
That takes us to s. 17. Section 17(1) reads thus :–
“On a suit or proceeding being
instituted by the landlord on any of the
grounds referred to in s. 13, the tenant
shall, subject to the provisions of sub-s (2),
within one month of me service of the writ of
summons on him deposit in Court or pay to the
landlord an amount calculated at the rate of
rent at which it.was last paid, for the period
for which the tenant may have made default
including the period subsequent thereto up to
the end of the month previous to that in which
the deposit or payment is made together with
interest on such amount calculated at the rate
of eight and one-third per cent, per
annum from the date when any such amount was
payable up to the date of deposit and shall
thereafter continue to deposit or pay, month
by month, by the 15th of each succeeding month
a sum equivalent to the rent at that rate.”
Section 17(2) deals with cases where there is a dispute as
to the amount of rent payable by the tenant. This provision
is not relevant for our purpose. Section 17(3) provides that
if a tenant fails to
39
deposit or pay any amount referred to in sub-s. (1) or sub-
section (2), the Court shall order the defence against
delivery of possession to be struck out and shall proceed
with the hearing of the suit. It is under this sub-section
that the impugned order has been passed. Section 17(4) lays
down:–
“If a tenant makes deposit or payment as
required by sub-s. (1) or sub-s. (2), 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:
Provide that a tenant shall not be
entitled to any relief under this sub-section
if he has made default in payment of rent for
four months within a period of twelve months.
Reading s. 17(1)by itself, it is clear that when a
landlord institutes a suit to recover possession of the
rent, though it is not described as such by s. 17(1).It is
thus clear that whatever may be the cause on which the
landlord’s claim for eviction is based, s. 17(1) provides
that subject to the provisions of sub-s. (2), within one
month of the service of the writ of summons on him, the
tenant is required to deposit in Court the amount in the
manner prescribed by it. If he fails to comply with the
requirements of s. 17(1), s. 17(3) steps in and’ enables the
landlord to claim that the defence of the tenant against
delivery of possession should be struck out. If section
17(1) and (3) are read by themselves, there is no doubt that
appellant No. 1 has failed to comply with s. 17(1), and so,
s. 17(3) can be legitimately invoked against him. He,
however, contends that m applying s. 17(3). the Court must
take into account not only
40
s. 17(1)but also s. 22(3), and his argument is that if he
has deposited the amount of rent under s. 21 and the deposit
is otherwise valid, then the deposit itself amounts to
payment of rent by him to the landlord and as such, no order
can be passed against him under s. 17(3), because, in law,
he has not committed a default in the payment of rent at
all; and it is this contention which makes it necessary to
consider the impact of the provisions of s. 22 on the
application of s. 17(3) against appellant No. 1.
Let us. therefore, read s. 22 and attempt to decide what is
the effect of s. 22(3) on cases falling under s. 17(1). As
we have already pointed out, s. 22 occurs in Chapter IV
which deals with deposit of rent. This Chapter begins with
s. 21. Section 21 (1) provides that where the landlord does
not accept any rent tendered by the tenant within the time
referred to in s. 4. or where there is a bona fide doubt as
to the person or persons to whom the rent is payable. the
tenant may deposit such rent with the Controller in the
prescribed manner. Section 21(2) lays down that the deposi
shall be accompanied by an application which should set
forth “the particulars prescribed by clauses .(a) to (d).
Section 21 (3) requires that the said application shall be
accompanied by the prescribed number of copies thereof.
Section 21(4) requires the Controller to send a copy of the
application received by him from the tenant to the landlord.
Under s. 21(5). the Controller is authorised to allow the
landlord to withdraw the rent deposited with him. Section
21(6) empowers the forfeiture of the deposit to Government,
subject to the conditions prescribed by clauses (a) & (b) of
the said sub-section. There are three other sub-sections to
s. 21 which are not relevant for our purpose.
That takes us to s. 22 it reads thus:
“(1) No rent deposited under s. 21 shall be
considered to have been validly deposited
under that section for purposes of clause (i)
of sub-section (1) ors. 13, unless deposited
within fifteen days of the time fixed by the
contract in writing for payment of the rent
or, in the absence of such contract in
writing, unless deposited within the last day
of the month following that for which the rent
was payable.
(2) No such deposit shall be considered
to have been validly made for the purpose of
the said clause if the tenant wailfully or
negligently makes any false statement in
his application for depositing the rent,
unless the landlord has withdrawn the amount
deposited before the date of institution of a
suit or proceeding for recovery, or possession
of the premises from the tenant.
(3) If the rent is deposited within the
time mentioned in sub-section (1). and does
not cease to be a valid deposit for the reason
mentioned in sub-section (2), the deposit
41
shall constitute payment of rent to the
landlord as if the amount deposited has been
valid legal tender of rent if tendered to the
landlord on the date fixed by the contract for
payment or rent when there is such a contract,
or, in the absence of any contract, on the
fifteenth day of the month next following that
for which rent is payable.”
Mr. N. C. Chatterjee for the appellants contends that
the effect of s. 22(3) is that the deposit made by appellant
No. 1 shall beheld to constitute payment by him to the
landlord, and so, there can be no scope four invoking s.
17(3) against him inasmuch/the basis of s. 17(3), in
substance, is that the tenant whose defence is sought to be
struck out has committed a default in the payment of rent.
The object of s. 17(1) is to secure the payment of rent by
the tenant to the landlord and since that object has been
satisfied by the deposit duly made by appellant No. 1 under
s. 21(1), it would be unreasonable to allow s. 17(3) to be
invoked against him. It is common ground that the deposit of
rent has been made by appellant No. 1 in compliance with the
provisions of s. 21 and that it is not rendered invalid
under s. 22(2). In other words, Mr. N.C. Chatterjee is
entitled to urge his point on the assumption that appellant
No. 1 has made a valid deposit under s. 21 and is entitled
to the benefit of s. 22(3). Can a valid deposit made under
s. 21 be permitted to be pleaded by a tenant when an
application is made against him under s. 17,(3)?; that is
the question which arises for our decision in the present
appeal. The answer to this question necessarily depends upon
the determination of the true scope and effect of the
provisions contained respectively in s. 17 and s. 22.
As a matter of common-sense, Mr. N.C. Chatterjee’s
argument does sound to be prima facie attractive. If, in
fact, appellant No. 1 has deposited the rent from month to
month, it does appear harsh and unreasonable that his
defence should be struck out on the ground that he has
deposited the rent not in the Court where the suit is
pending, but with the Controller. When appellant No. 1 began
to deposit the rent with the Controller, he was justified in
doing so; but on the other hand, it is urged against him by
Mr. P.. K. Chatterjee that as soon as the suit is filed
under s. 17 and the period prescribed by it has expired, it
was obligatory on appellant No. 1 to pay the amount in
Court and stop depositing it with the Rent Controller; in
other words, his failure to pay the amount in Court incurs
the penalty prescribed by s. 17(3) notwithstanding the fact
that he may have deposited the same amount with the
Controller. The requirements of s. 17(1) cannot be said to
be satisfied by taking recourse to the provisions of s.
22(3); that in substance is the argument for the respondent.
The question thus raised for our decision no doubt lies
within a very narrow compass and its answer depends upon a
proper construction of sections 17 and 22; but, as we have
already indicated, this narrow
42
question has given rise to a sharp conflict of opinion in
the Calcutta High Court. It appears plain that appellant No.
1 finds himself in the present difficult position presumably
because, acting upon the view expressed in some of the
judgments of the Calcutta High Court, he was advised to
deposit the rent with the Controller even after he was sued
by the respondent and s. 17(1) began to operate against him.
In dealing with this vexed problem, it is relevant to remem-
her that the two competing provisions occur in two different
Chapters and apparently cover different fields. Chapter IV
deals with the question of deposit of rent in general,
whereas s. 17 in Ch III makes a provision for the payment
of the amount mentioned by it in Court after a suit or
proceeding has been instituted by the landlord against the
tenant. It is common ground that the Rent Controller is not
Court within the meaning of s. 17(1). Prima facie. a general
provision for the deposit of rent prescribed by s. 21 would
not apply to special cases dealt with by s. 17. The
provisions of s. 21 and 22 which are general in character,
would cover cases which are not expressly dealt with by the
special provision prescribed by s. 17. In other words,
though a tenant may deposit rent with the Controller under
the provisions of ss. 21 and 22,-as soon as a suit is
brought against him by the landlord, s. 17 which is a
special provision, comes into operation and it is the
provision of this special section that must prevail in cases
covered by it: that is the first general consideration which
cannot be ignored.
Section 17 deals with suits or proceedings in which the
landlord claims eviction on any of the grounds referred to
in s. 13; and as we have already noticed, s. 13 which
affords protection to the tenant’s eviction, permits the
landlord to claim eviction only if he can place his claim on
one or the other of the clauses (a) to (k); that is to say,
it is ‘only if one or other of the conditions prescribed by
the said clauses is proved that the landlord can claim to
evict his tenant. Default in the payment of rent is one of
these clauses, but there are several other clauses referring
to different causes of action on which eviction can be
claimed by the landlord, and it is to all these cases that
s. 17(1) applies. It is thus clear that normally, when a
suit is brought for eviction, the tenant would have to
comply with the requirements of s. 17(1). It is only where
owing to the refusal of the landlord to accept the rent
tendered by the tenant, or where there is a bona fide doubt
as to who is entitled to receive the rent. that the
provisions of s. 21 empower the tenant to deposit the rent
with the Controller. In a11 other cases, if the tenant was
paying rent to the landlord and is faced with a suit for
eviction, s. 17(1) will unambiguously apply and the amount
of rent will have to be paid in Court as required by it. It
is also dear that if a tenant has been depositing the rent
validly and properly under s. 21, a suit against him under
s. 13(1)(i) cannot be filed. Section 13(1)(i) authorises the
landlord to claim eviction of his
43
tenant on the ground that he has made a default in the
payment of rent as described by it. But such a default
cannot be attributed to a tenant who has been depositing the
rent with the Controller properly and validly under s. 21.
Such a valid payment amounts to payment of rent by the
tenant to the landlord under s. 22(3), and so a tenant who
has been making these deposits cannot be sued under s.
13(1)(i).
It is true that the complication of the present kind
arises where a tenant who has been making a valid deposit
under s. 21 is sued for ejectment on grounds other than s.
13(1)(i), and s. 17(1) comes into operation against him. In
such a case, if the special provisions prescribed by s.
17(1) apply to the exclusion of sections 21 & 22 the fact
that a deposit has been made by the tenant can be no answer
to the application made by the landlord under s. 17(3)
In this connection, it is necessary to bear in mind the
fact that s. 17(1) is really intended to give a benefit to
the tenant who has committed a default in the payment of
rent. The first part of s. 17(1) allows such a tenant to pay
the defaulted amount of rent together with the prescribed
interest in Court within the time prescribed, and such a
tenant would not be evicted if he continues to deposit the
amount in Court, during the pendency of the suit as required
by the latter part of s. 17(1). In our opinion, the scheme
of s. 17(1) is a complete scheme by itself and the
Legislature has intended that in suits or proceedings to
which s. 17(1) applies, the payment of rent by the tenant to
landlord must be made in the manner prescribed by s. 17(1).
Even in cases Where the tenant might have been depositing
the rent with the Controller under s. 21, he has to comply
with s. 17(1) before the period prescribed by s. 17(1) has
elapsed. It is significant that the requirement to deposit
the amount in Court comes into force within one month of the
service of the writ of summons on the tenant. In other
words,appellant No. 1 was justified in depositing the rent
even after the present suit was filed until one month from
the service of the writ of summons of the suit had elapsed.
The Legislature has taken the precaution of giving the
tenant one month’s period after the service of the writ of
summons on him before requiring him to deposit the amount in
Court. The object obviously appears to be that when a suit
or proceeding has commenced between the landlord and the
tenant for ejectment, and the tenant has received notice of
it,the payment of rent should be made in Court to avoid any
dispute in that behalf..
It is also relevant to remember that in the matter of
payment of rent in Court, s. 17(1) has provided that the
amount to be paid in future shall be paid by the 15th of
each succeeding month, and that means that the date for the
payment of the amount has been statutorily fixed which is
distinct from the requirement of s. 4. Section 4(2) provides
for the payment of rent within the time fixed
44
by contract, but s. 17(1) requires the payment to be made by
the 15th of each succeeding month whatever may be the
contract. If, according to the contract, rent was payable
quarterly, or six-monthly, or even annually, s. 17(1)
supersedes that part of the contract and requires the rent
to be paid, month by month, by the 15th of each succeeding
month.
The position under sections 21 & 22 is, however,
substantially different on this point. Section 21 (I) in
terms requires the deposit to be made within the time
referred to in s. 4, and that means where there is a
contract made by the parties in relation to the time for the
payment of rent, it is on the contracted date that the rent
has to be deposited under s. 21. The scheme of the three
clauses of s. 22 clearly is integrally connected with s. 21.
These clauses deal with deposits made under s. 21. In fact
it would be ,difficult to read s. 22(3) independently of s.
22(1) and (2); all the three clauses of s. 22 must be read
together, and so, the time for making the deposit for the
purpose of s. 22(3) would be the time prescribed by contract
and not the statutory time provided by s. 17(1). It is clear
that the deposit of rent made before the Controller under
section 21 is based on the contractual obligation of the
tenant to pay the rent,and he makes the deposit because the
landlord is not receiving the rent or there is a dispute as
to who the real landlord is. On the other hand, the deposit
of rent made in Court under s. 17(1) is the result of a
statutory obligation imposed by the said sub-section; no
doubt, the amount required to be deposited may be the amount
for which the parties may have entered into a contract, but
the manner and the mode in which the deposit is required to
be made in Court are the result of the statutory provision,
and in that sense they constitute a statutory obligation.
That is another feature which distinguishes the deposits
covered by sections 21 and 22 from the deposits prescribed
by s. 17(1).
Mr. N.C. Chatterjee argued that if the majority view of
the Calcutta High Court is upheld, it may lead to some
anomalies. As an illustration, he asked us to consider the
case of a suit failing under s. 17(1) which ultimately fails
and is dismissed. In such a suit, the rent would have to be
deposited in Court by the tenant as required by s. 17(1);
but if the suit fails, what happens to the rent? Would the
tenant be treated as being a defaulter, or would the tenant
who is required to make a deposit in Court as required by s.
17(1) be compelled as a precaution, to make another deposit
with the Controller in cases where the .landlord had refused
to accept rent before he flied the suit? We are not
impressed by this argument. In our opinion, if the tenant
had deposited the rent in Court as required by s. 17(1), he
could not be treated as a defaulter under any provision of
the Act. Payment in Court made by the tenant under the
statutory obligation imposed on him would, in law, be
treated as payment of rent made by him to the landlord.
45
Mr. N.C. Chatterjee also relies on the fact that s. 24 in
terms provides that the acceptance of rent in respect of the
period of default in payment of rent by the landlord from
the tenant shall operate as a waiver of such default, when
there is no proceeding pending in Court for the recovery ,of
possession of the premises. The argument is that where the
Legislature intended to confine the operation of a specified
provision to cases where there is no proceeding pending in
Court, it has expressly so stated. In our opinion.this
argument is not well-founded. Section 24 merely indicates
that the Legislature thought that it was necessary to make
that provision in order to avoid any doubt as to whether
acceptance of rent would amount to waiver or not in cases
where no proceeding was pending in Court. On the other hand,
from the wording of s. 24 it may be permissible to suggest
that the Legislature did not think of providing for the
consequence of acceptance of rent after the commencement of
a proceeding for the recovery of possession. because it knew
that the said matter would be covered by s. 17(1).
Besides, s. 22(2) gives some indication that the
provisions of s. 22 are not intended to be applied when
suits or proceedings have commenced between the landlord and
the tenant. It would be noticed that s. 22(2) says that
no. deposit shall be considered to have been validly made
for the purposes of s. 22(1) if the tenant wailfully or
negligently makes any false statement in his application for
depositing the amount unless the landlord has withdrawn the
amount deposited before the date of institution of a suit
or proceeding for recovery of possession ,of the premises
from the tenant. This last clause may suggest that the
provisions of all the clauses of s. 22 may not be applicable
after the suit or proceeding has commenced.
As we have already pointed out, the question raised for
our decision in the present appeal really centers round the
determination of the areas covered by s. 17 on the one hand,
and sections 21 and 22 on the other; and though it may be
conceded that the words used in the respective sections are
not quite clear, on the whole the scheme evidenced by them
indicates that the Legislature wanted s. 17(1) to control
the relationship between the landlord and the tenant as
prescribed by it once a suit or proceeding for ejectment was
instituted and a period of one month from the service of the
writ of summons on the defendant had expired. We have
carefully considered the reasons given by the two. learned
Judges who delivered the minority judgments in the
Siddheswar Paul’s(1) case, but we have come to the
conclusion that the majority view on the whole correctly
represents the true scope and effect of s. 17, as
distinguished from sections 21 and 22.
In the result, the appeal fails and must be dismissed.
There would be no order as to costs.
(1)A.I.R. [1965] Cal. 105.
L/B(D)2SCI–5
46
Before parting with this appeal, however, we would like
to add that appellant No. 1 has to submit to the penalty
prescribed by s. 17(3) apparently because. acting upon the
opinion expressed by some of the learned Judges of the
Calcutta High Court, he was advised to continue to deposit
the rent with the Controller even after the present suit was
filed against him. We do not know whether there are many
other cases of the same type. In case there are several
other cases of this type, that would really mean unjust
hardship against tenants who, in substance, have not
committed default in the matter of payment of rent, and yet
would be exposed to the risk of ejectment by virtue of the
application of s. 17(3). In our opinion, such tenants
undoubtedly deserve to be protected against ejectment. We
trust the Legislature will consider this matter and devise
some means of giving appropriate relief to this class of
tenants.
Appeal dismissed.
47