{"id":194553,"date":"1965-02-11T00:00:00","date_gmt":"1965-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kaluram-onkarmal-and-another-vs-baidyanath-gorain-on-11-february-1965"},"modified":"2015-02-22T19:27:16","modified_gmt":"2015-02-22T13:57:16","slug":"kaluram-onkarmal-and-another-vs-baidyanath-gorain-on-11-february-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kaluram-onkarmal-and-another-vs-baidyanath-gorain-on-11-february-1965","title":{"rendered":"Kaluram Onkarmal And Another vs Baidyanath Gorain on 11 February, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kaluram Onkarmal And Another vs Baidyanath Gorain on 11 February, 1965<\/div>\n
Equivalent citations: 1965 AIR 1909, \t\t 1965 SCR (3)\t 34<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B. (Cj)<\/div>\n
           PETITIONER:\nKALURAM ONKARMAL AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nBAIDYANATH GORAIN\n\nDATE OF JUDGMENT:\n11\/02\/1965\n\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nHIDAYATULLAH, M.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1965 AIR 1909\t\t  1965 SCR  (3)\t 34\n\n\nACT:\n    West Bengal Premises Tenancy Act. (12 of 1956), ss.\t 17,\n21  and\t  22--Suit for eviction--Deposit of rent  by  tenant\nwith  Rent  Controller and not in Court during\tpendency  of\nsuit--If defence could be struck off under s. 17(3).\n\n\n\nHEADNOTE:\nThe  appellant\tand  respondent were the  tenant  and  owner\nrespectively  of premises to which the West Bengal  Premises\nTenancy\t Act,  1956, applied. The respondent filed  a  suit,\nunder s. 13 of the Act,\t   for the eviction of the appellant\non various grounds. The appellant denied the allegations and\ncontested the suit. Before the suit was filed, the appellant\nwas  depositing\t the  rent for the premises  with  the\tRent\nController  under s. 21 of the Act, because, the  respondent\nwas not prepared to accept the rent. The appellant continued\nto deposit the rent with the Rent Controller even after\t the\nsuit was filed and the summons was served. Alleging that  as\nsoon  as the suit was filed and a period of one\t month\tfrom\nthe  date  of service of the summons on\t the  appellant\t had\nexpired, it was obligatory on the appellant under s.  17(1),\nto pay the amount in court and not with the Rent Controller,\nthe  respondent\t filed an application for striking  out\t the\ndefence\t of the appellant in the suit. The  application\t was\nallowed\t by  the  trial\t court.\t The  appellant's   revision\npetition  to  the High Court was  dismissed,  following\t the\ndecision of a Special Bench of the High Court in  Siddheswar\nPaul v. Prakash Chandra Dutta, A.I.R. 1964, Cal. 105.\n    In\t the   appeal  to  this Court\tit   was   contended\nthat   the majority view in Siddheswar Paul's case  that  s.\n22(3)  does  not apply to cases falling under s.  17(1)\t was\nwrong,\tbecause, the deposit made by the appellant under  s.\n21  with the Rent Controller constituted payment of rent  by\nhim  to the landlord. under s. 22(3); and  therefore,  there\nwas  no scope for invoking s. '17(3) against  the  appellant\ninasmuch as the basis of s. 17(3) was that the tenant  whose\ndefence was sought to be struck out had committed a  default\nin the payment of rent.\n    HELD:  Section 17(1) is a complete scheme by itself\t and\nthe legislature has intended that in suits or proceedings to\nwhich the section applies the payment of rent by the  tenant\nto the landlord must be made in the manner prescribed by the\nsection.  The legislature wanted the  section\tto   control\nthe  relationship  between  the\t landlord and the tenant  as\nprescribed  by it. once a suit or proceeding  for  ejectment\nwas  instituted and a period of one month from the  date  of\nservice\t of  the  writ\tor summons  on\tthe  defendant\t had\nexpired.  Even\tin cases where the tenant  might  have\tbeen\ndepositing the rent with the Controller under s. 21, he\t has\nto comply with s. 17(1) before the period prescribed by\t the\nsection\t had  elapsed, because, as soon as a suit  is  filed\nagainst the tenant by the landlord for eviction, s. 17 which\nis a special provision, comes into operation, and it is\t the\nprovisions  of\tthat special section that  must\t prevail  in\ncases  governed\t by  it.  The object  is.  when\t a  suit  or\nproceeding has commenced between the landlord and the tenant\nfor ejectment and the tenant had received notice of it,\t the\npayment\t of  rent  should  be made in  court  to  avoid\t any\ndisputes  in  that behalf. The majority view  in  Siddheswar\nPaul's\tcase correctly represents the true scope and  effect\nof s. 17. as distinguished from ss. 21 and 22. [42E;  431-F;\n45G-H]\n35\n    Therefore, even the valid deposit made under s. 21 could\nnot  be\t permitted  to be pleaded by  the  tenant  when\t the\napplication was made against him under s. 17(3). [43C]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  875  of
\n1964.\n<\/p>\n
    Appeal  by\tspecial leave from the\tjudgment  and  order
\ndated  April 10, 1964, of the Calcutta High Court  in  Civil
\nRule No. 4439 of 1962.\n<\/p>\n
N.C. Chatterjee and D. Goburdhan, for the appellants.
\nP.K. Chatterjee and D.N. Mukherjee, for the respondent.
\nThe Judgment of the Court was delivered by
\n    Gajendragadkar, C.J. Appellant No. 1, Kaluram  Onkarmal,
\nwas let into possession of the premises described as holding
\nNo.  182H,  G.T.  Road, Asansol as a  monthly  tenant  under
\nHarbhajan  Singh  Wasal\t who  was  the\towner  of  the\tsaid
\npremises.  The rent agreed to be paid was Rs. 35  per  month
\npayable\t according to the English Calendar. It appears\tthat
\nin   1953,   the  Calcutta  National  Bank  Ltd.   (now\t  in
\nliquidation)  sued the owner Wasal on the original side\t  of
\nthe  Calcutta  High  Court on a mortgage. In the said  suit,
\na  preliminary decree was passed and in due course,  it\t was
\nfollowed  by a final decree. During the proceedings  of\t the
\nsaid  suit,  Mr. K.K. Ghose was appointed  Receiver  of\t the
\nmortgaged  properties,\tincluding  the\t premises   in\t the
\npresent\t suit.\tOn February  18,  1960,\t the  Receiver\t put
\nthe   mortgaged\t  properties  to sale  and  the\t respondent,
\nBaidyanath  Gorain,  purchased\tthem.  The  said  sale\t was
\nconfirmed by the Calcutta High Court on March 1, 1960.\tThat
\nis how the respondent became the owner of the suit  premises
\nalong  with  other  properties\tunder  mortgage.  After\t  he
\nacquired  title\t to the suit premises in  this\tmanner,\t the
\nrespondent  informed appellant No. 1 about the same  by\t his
\nletter dated the 2nd April, 1960.\n<\/p>\n
    On\tDecember IL 1961, the respondent sued appellant\t No.
\n1,  and\t appellant No. 2, Kaluram Bajranglal  in  the  First
\nCourt  of the Muns if at Asansol for ejectment.\t He  claimed
\nvacant possession of the premises let out to appellant No. 1
\non several grounds. He urged that he reasonably required the
\npremises for rebuilding them after .demolishing the existing
\nstructure.  According  to  him, the existing  structure\t had
\nbecome very old and was in a dilapidated condition. He\talso
\nalleged that appellant No. 1 had unlawfully sublet the\tsuit
\npremises  to appellant No. 2, and that he had failed to\t pay
\nor deposit the rents for the last three years in  accordance
\nwith law.\n<\/p>\n
    The claim for ejectment thus made by the respondent\t was
\ndisputed  by appellant No. 1 on several\t grounds.  Appellant
\nNo. 1 denied that the respondent required the suit  premises
\nfor rebuilding, and also disputed his allegation that he had
\nsublet the said
\n36<\/span>
\npremises  unlawfully. In regard to the averment made by\t the
\nrespondent that appellant No. 1 had failed to pay or deposit
\nthe rents due for the last three years, appellant No. 1 made
\na  detailed  dental.  He  urged\t that  the  rents  had\tbeen
\nregularly paid to the owner in tune before August, 1960, and
\nhe  pleaded  that since the month of August,  1960  when  he
\nfound  that the owner was not prepared to accept  the  rents
\nfrom him, he deposited them with the House Rent\t Controller,
\nAsansol,  from month to month. It was his case\tthat  notice
\nhad  been served on the owner in respect of  these  deposits
\nfrom month to month as provided by section 21(3) of the West
\nBengal\tPremises  Tenancy  Act,\t 1956,\t(Act  XII  of  1956)
\n(herematter called ‘the Act’). The written statement further
\naverred that the deposit of the monthly rent continued to be
\nmade regularly under s. 21 and that the rent for March, 1962
\nhad  been  duly deposited on April 10,\t1962.  This  written
\nstatement was filed on April 11, 1962.\n<\/p>\n
    During the pendency of this suit, the respondent made an
\napplication  under s. 17(3) of the Act and claimed that\t the
\ndefence\t      of  appellant  No.  1  against   delivery\t  of
\npossession  should be struck out, because he had  failed  to
\ndeposit\t or pay the amount in Court as required by s.  17(1)
\nof  the\t Act. This application was  strenuously\t opposed  by
\nappellant  No.\t1 on the ground that s. 17(3) could  not  be
\ninvoked\t against  him in view of the fact that he  had\tbeen
\ndepositing the rent from month to month under s. 21. and  he
\nurged that the deposit of rent thus made by him amounted  to
\npayment of rent by him to the respondent under s. 22(3) and,
\ntherefore. no default had been committed by him at all. This
\ndispute raised the question about the true scope and  effect
\nof  the provisions of s. 17(3) and s. 22(3) of the Act.\t The
\nlearned trial Judge held that notwithstanding the fact\tthat
\nappellant  No. 1 had been depositing the rent from month  to
\nmonth under s. 22 with the Rent Controller, having regard to
\nthe provisions contained in s. 17(1) his failure to  deposit
\nthe relevant  amount in Court incurred the liability to have
\nhis  defence  struck out under s. 17(3). In coming  to\tthis
\nconclusion,  the  learned Judge followed a decision  of\t the
\nDivision Bench of the Calcutta High Court in Abdul Majid  v.
\nDr.  Samiruddin(1). Having held that s. 17(3)  applied,\t the
\nlearned Judge directed that the defence raised by  appellant
\nNo.  1 against the claim of the respondent for\tdelivery  of
\npossession of the suit premises must be struck out.
\n    This  order\t was challenged by both\t the  appellants  by
\npreferring  a revision application before the Calcutta\tHigh
\nCourt. Before this revision application\t reached  the  stage
\nof  hearing,  the  question raised by it  had  already\tbeen
\nconcluded by a majority decision of\tthe Special Bench of
\nthe  Calcutta  High  Court in  Siddheswar  Paul\t v.  Prakash
\nChandra Dutta(2). The learned single Judge who heard this
\n(1) 62 C.W.N. 555.\n<\/p>\n
(2) A.I.R. 1964 Cal. 105.\n<\/p>\n
37<\/span><\/p>\n
revision  application  was  naturally  bound  by  the\tsaid
\nmajority decision, and applying the said  decision, he\theld
\nthat  the order passed by the learned trial  Judge  striking
\nout the defence of appellant No. 1 under s. 17(3) of the Act
\nwas  justified. It is this order which is challenged by\t Mr.
\nN.C.  Chatterjee on behalf of the appellants in the  present
\nappeal\twhich  has  been brought to this  Court\t by  special
\nleave. Mr. Chatterjee contends that the majority decision of
\nthe Special Bench in Siddheswar Paul’s case(1) is  erroneous
\nand  has proceeded on a misconstruction of the\ttone,  scope
\nand effect of the two relevant section of the Act–ss. 17  &\n<\/p>\n
22.  That  is  how the short question which  falls  for\t our
\ndecision  in the present appeal is: what is the\t true  scope
\nand  effect of the provisions prescribed by sections 17\t and
\n22  of\tthe  Act?  It appears  that  the  Special  Bench  in
\nSiddheswar Paul’s case was .divided on this issue; the three
\nlearned\t Judges have taken the view that s. 22(3)  does\t not
\napply  to  cases falling under s. 17(1), whereas  two  other
\nlearned Judges have come to the conclusion that if a  tenant
\nhad  made  a deposit with the Rent Controller  to  which  s.
\n22(3) applies, section 17(3) cannot be invoked against\thim.
\nThe  separate judgments delivered by all the learned  Judges
\nwho constituted the Special Bench have dealh with the  point
\nat  great  length and each one has subjected  the  said\t two
\nprovisions  to\ta close analysis and  examination.   In\t the
\npresent appeal, we propose to consider the matter in a broad
\nway   and   will   confine   ourselves\t to   some   general
\nconsiderations\twhich flow from the construction of the\t two
\nrelevant  provisions and which. in our opinion, support\t the
\nview  taken  by the majority of the Judges  in\tthe  Special
\nBench.\n<\/p>\n
    Before addressing ourselves to the main point in dispute
\nbetween the parties, it is necessary to refer broadly to the
\nscheme\tof  the\t Act and its main provisions.  The  Act\t was
\npassed in 1956 and superseded the earlier Act XVII of  1950.
\nThe  Act  consists  of\tseven Chapters.\t Ch.  I\t deals\twith
\ndefinitions; Ch. II contains provisions regarding rent;\t Ch.
\nIII  coveys suits and proceedings for eviction; Ch.  IV\t has
\nreference  to deposit of rent; Ch. V considers the  question
\nof  appointment of the Controller and other Officers,  their
\npowers and functions; Ch. VI provides for appeals,  revision
\nand   review;\tand  Ch.  VII  deals  with   penalties\t and
\nmiscellaneous\t provisions.   Section\t 2(b)\tdefines\t   a
\n“Controller”; s. 2(c) defines “fair rent”; s. 2(d) defines a
\n“landlord”;  and  s.  2(h) defines  a  “tenant”.  A  tenant,
\naccording  to  s. 2(h), includes any person by\twhom  or  on
\nwhose account or behalf, the rent of any premises is, or but
\nfor a special contract would be payable and also any  person
\ncontinuing  in\tpossession  after  the\ttermination  of\t his
\ntenancy,  but shall not include any person against whom\t any
\ndecree\tor  order for eviction has been made by a  Court  of
\ncompetent jurisdiction. Section
\n(1) A.I.R. [1964] Cal. 105.\n<\/p>\n
38<\/span><\/p>\n
4(1) provides that a tenant shall, subject to the provisions
\nof  the\t Act, pay to the landlord: (a) in cases\t where\tfair
\nrent  has  been fixed for any premises, such  rent;  (b)  in
\nother cases, the rent agreed upon until fair rent is  fixed.
\nSection\t 4(2) lays down that rent shall be paid\t within\t the
\ntime  fixed by contract or in the absence of such  contract,
\nby  the 15th day of the month next following the  month\t for
\nwhich it is payable; and under s. 4(3), any sum in excess of
\nthe rent referred to in sub-s. (1) shall not be\t recoverable
\nby the landlord. These provisions are in conformity With the
\npattern\t which\tis  usually  adopted  by  Rent\t Restriction
\nActs.The rest of the provisions of Chapter II deal with\t the
\nfixation of standard rent; with the said provisions, we\t are
\nnot concerned in the present appeal.\n<\/p>\n
    Chapter  III which deals with suits and proceedings\t for
\neviction  contains s.- 17 which falls  to be  considered  in
\nthe  present appeal. Section 13 which affords protection  to
\ntenants\t against  eviction, lays down  that  notwithstanding
\nanything  to  the  contrary in any other law,  no  order  or
\ndecree\tfor the recovery of possession of my premises  shall
\nbe  made  by any Court in favour of the landlord  against  a
\ntenant\texcept\ton one or more of the grounds  specified  by
\nclauses (a) to (k).  Amongst these clauses, it is clause (i)
\nwhich deals with a case where the tenant has made default in
\nthe payment of rent for two months within a period of twelve
\nmonths or for two successive periods in cases where rent  is
\nnot  payable  monthly. Section 14 imposes a  restriction  on
\nsubletting. Section 15 prohibits a tenant from receiving any
\nsum or\tconsideration for relinquishment of tenancy; and  s.
\n16  provides  that  the creation  and  termination  of\tsub-
\ntenancies shall be notified in the manner prescribed by\t it.
\nThat takes us to s. 17. Section 17(1) reads thus :–\n<\/p>\n
\t\t    “On\t  a   suit   or\t  proceeding   being
\n\t      instituted  by  the  landlord on\tany  of\t the
\n\t      grounds  referred\t to  in s.  13,\t the  tenant
\n\t      shall, subject to the provisions of sub-s (2),
\n\t      within one month of me service of the writ  of
\n\t      summons on him deposit in Court or pay to\t the
\n\t      landlord\tan amount calculated at the rate  of
\n\t      rent at which it.was last paid, for the period
\n\t      for  which  the tenant may have  made  default
\n\t      including the period subsequent thereto up  to
\n\t      the end of the month previous to that in which
\n\t      the  deposit or payment is made together\twith
\n\t      interest on such amount calculated at the rate
\n\t\t    of\teight  and one-third per  cent,\t per
\n\t      annum  from the date when any such amount\t was
\n\t      payable  up to the date of deposit  and  shall
\n\t      thereafter  continue to deposit or pay,  month
\n\t      by month, by the 15th of each succeeding month
\n\t      a sum equivalent to the rent at that rate.”\n<\/p><\/blockquote>\n
Section\t 17(2) deals with cases where there is a dispute  as
\nto the amount of rent payable by the tenant. This  provision
\nis not relevant for our purpose. Section 17(3) provides that
\nif a tenant fails to
\n39<\/span>
\ndeposit or pay any amount referred to in sub-s. (1) or\tsub-
\nsection\t (2),  the  Court shall order  the  defence  against
\ndelivery  of possession\t to be struck out and shall  proceed
\nwith  the hearing of the suit. It is under this\t sub-section
\nthat the impugned order has been passed. Section 17(4)\tlays
\ndown:–\n<\/p>\n
\t\t    “If a tenant makes deposit or payment as
\n\t      required\tby  sub-s.  (1) or  sub-s.  (2),  no
\n\t      decree or order for delivery of possession  of
\n\t      the premises to the landlord on the ground  of
\n\t      default in payment of rent by the tenant shall
\n\t      be  made by the Court but the Court may  allow
\n\t      such costs as it may deem fit to the landlord:
\n\t\t     Provide  that  a tenant  shall  not  be
\n\t      entitled to any relief under this\t sub-section
\n\t      if he has made default in payment of rent\t for
\n\t      four months within a period of twelve months.\n<\/p><\/blockquote>\n
Reading\t s.  17(1)by  itself,  it is   clear  that  when   a
\nlandlord  institutes  a suit to recover\t possession  of\t the
\nrent,  though it is not described as such by s. 17(1).It  is
\nthus  clear  that  whatever may be the cause  on  which\t the
\nlandlord’s  claim for eviction is based, s.  17(1)  provides
\nthat  subject  to the provisions of sub-s. (2),\t within\t one
\nmonth  of  the service of the writ of summons  on  him,\t the
\ntenant\tis  required to deposit in Court the amount  in\t the
\nmanner\tprescribed  by it. If he fails to  comply  with\t the
\nrequirements of s. 17(1), s. 17(3) steps in and’ enables the
\nlandlord  to claim  that the defence of the  tenant  against
\ndelivery  of  possession should be struck  out.\t If  section
\n17(1) and (3) are read by themselves, there is no doubt that
\nappellant No. 1 has failed to comply with s. 17(1), and\t so,
\ns.  17(3)  can\tbe legitimately\t invoked  against  him.\t He,
\nhowever,  contends that m applying s. 17(3). the Court\tmust
\ntake into account not only
\n40<\/span>
\ns.  17(1)but also s. 22(3), and his argument is that  if  he
\nhas deposited the amount of rent under s. 21 and the deposit
\nis  otherwise  valid,  then the deposit\t itself\t amounts  to
\npayment of rent by him to the landlord and as such, no order
\ncan  be passed against him under s. 17(3), because, in\tlaw,
\nhe  has\t not committed a default in the payment of  rent  at
\nall;  and it is this contention which makes it necessary  to
\nconsider  the  impact  of the provisions of  s.\t 22  on\t the
\napplication of s. 17(3) against appellant No. 1.
\nLet us. therefore, read s. 22 and attempt to decide what  is
\nthe  effect of s. 22(3) on cases falling under s. 17(1).  As
\nwe  have  already pointed out, s. 22 occurs  in\t Chapter  IV
\nwhich  deals with deposit of rent. This Chapter begins\twith
\ns. 21. Section 21 (1) provides that where the landlord\tdoes
\nnot  accept any rent tendered by the tenant within the\ttime
\nreferred to in s. 4. or where there is a bona fide doubt  as
\nto  the person or persons to whom the rent is  payable.\t the
\ntenant\tmay  deposit such rent with the\t Controller  in\t the
\nprescribed  manner. Section 21(2) lays down that the  deposi
\nshall  be  accompanied by an application  which\t should\t set
\nforth  “the particulars prescribed by clauses .(a)  to\t(d).
\nSection\t 21 (3) requires that the said application shall  be
\naccompanied  by\t the prescribed number\tof  copies  thereof.
\nSection 21(4) requires the Controller to send a copy of\t the
\napplication received by him from the tenant to the landlord.
\nUnder  s. 21(5). the Controller is authorised to  allow\t the
\nlandlord  to withdraw the rent deposited with  him.  Section
\n21(6) empowers the forfeiture of the deposit to\t Government,
\nsubject to the conditions prescribed by clauses (a) & (b) of
\nthe said sub-section. There are three other sub-sections  to
\ns. 21 which are not relevant for our purpose.
\n  That takes us to s. 22 it reads thus:\n<\/p>\n
\t      “(1)  No rent deposited under s. 21  shall  be
\n\t      considered  to  have  been  validly  deposited
\n\t      under that section for purposes of clause\t (i)
\n\t      of  sub-section (1) ors. 13, unless  deposited
\n\t      within  fifteen days of the time fixed by\t the
\n\t      contract\tin writing for payment of  the\trent
\n\t      or,  in  the  absence  of\t such  contract\t  in
\n\t      writing,\tunless deposited within the last day
\n\t      of the month following that for which the rent
\n\t      was payable.\n<\/p><\/blockquote>\n
\t\t    (2) No such deposit shall be  considered
\n\t      to  have been validly made for the purpose  of
\n\t      the  said\t clause if the tenant  wailfully  or
\n\t      negligently makes any false statement\t  in
\n\t      his  application\tfor  depositing\t the   rent,
\n\t      unless  the landlord has withdrawn the  amount
\n\t      deposited before the date of institution of  a
\n\t      suit or proceeding for recovery, or possession
\n\t      of the premises from the tenant.\n<\/p><\/blockquote>\n
\t\t    (3)\t If the rent is deposited within the
\n\t      time  mentioned in sub-section (1).  and\tdoes
\n\t      not cease to be a valid deposit for the reason
\n\t      mentioned in sub-section (2), the deposit
\n\t      41<\/span>
\n\t      shall  constitute\t payment  of  rent  to\t the
\n\t      landlord\tas if the amount deposited has\tbeen
\n\t      valid legal tender of rent if tendered to\t the
\n\t      landlord on the date fixed by the contract for
\n\t      payment or rent when there is such a contract,
\n\t      or,  in  the absence of any contract,  on\t the
\n\t      fifteenth day of the month next following that
\n\t      for which rent is payable.”\n<\/p><\/blockquote>\n
    Mr.\t N. C. Chatterjee for the appellants  contends\tthat
\nthe effect of s. 22(3) is that the deposit made by appellant
\nNo.  1\tshall  beheld to constitute payment by\thim  to\t the
\nlandlord,  and\tso, there can be no scope four\tinvoking  s.
\n17(3)  against\thim  inasmuch\/the  basis  of  s.  17(3),  in
\nsubstance, is that the tenant whose defence is sought to  be
\nstruck\tout has committed a default in the payment of  rent.
\nThe  object of s. 17(1) is to secure the payment of rent  by
\nthe  tenant to the landlord and since that object  has\tbeen
\nsatisfied by the deposit duly made by appellant No. 1  under
\ns.  21(1), it would be unreasonable to allow s. 17(3) to  be
\ninvoked against him. It is common ground that the deposit of
\nrent has been made by appellant No. 1 in compliance with the
\nprovisions  of\ts. 21 and that it is  not  rendered  invalid
\nunder  s.  22(2).  In other words, Mr.\tN.C.  Chatterjee  is
\nentitled to urge his point on the assumption that  appellant
\nNo.  1 has made a valid deposit under s. 21 and is  entitled
\nto  the benefit of s. 22(3). Can a valid deposit made  under
\ns.  21\tbe  permitted  to be pleaded by\t a  tenant  when  an
\napplication  is made against him under s. 17,(3)?;  that  is
\nthe  question which arises for our decision in\tthe  present
\nappeal. The answer to this question necessarily depends upon
\nthe  determination  of\tthe true scope\tand  effect  of\t the
\nprovisions contained respectively in s. 17 and s. 22.
\n    As\ta  matter  of common-sense,  Mr.  N.C.\tChatterjee’s
\nargument  does\tsound to be prima facie attractive.  If,  in
\nfact,  appellant No. 1 has deposited the rent from month  to
\nmonth,\tit  does  appear harsh\tand  unreasonable  that\t his
\ndefence\t should\t be  struck out on the ground  that  he\t has
\ndeposited  the\trent  not in the Court\twhere  the  suit  is
\npending, but with the Controller. When appellant No. 1 began
\nto deposit the rent with the Controller, he was justified in
\ndoing so; but on the other hand, it is urged against him  by
\nMr.  P..  K. Chatterjee that as soon as the  suit  is  filed
\nunder  s. 17 and the period prescribed by it has expired, it
\nwas  obligatory\t on appellant No.  1 to pay  the  amount  in
\nCourt  and stop depositing it with the Rent  Controller;  in
\nother  words, his failure to pay the amount in Court  incurs
\nthe penalty prescribed by s. 17(3) notwithstanding the\tfact
\nthat  he  may  have  deposited\tthe  same  amount  with\t the
\nController.  The requirements of s. 17(1) cannot be said  to
\nbe  satisfied  by taking recourse to the  provisions  of  s.
\n22(3); that in substance is the argument for the respondent.
\nThe  question  thus raised for our decision  no\t doubt\tlies
\nwithin\ta very narrow compass and its answer depends upon  a
\nproper\tconstruction of sections 17 and 22; but, as we\thave
\nalready indicated, this narrow
\n42<\/span>
\nquestion  has given rise to a sharp conflict of\t opinion  in
\nthe Calcutta High Court. It appears plain that appellant No.
\n1 finds himself in the present difficult position presumably
\nbecause,  acting  upon\tthe view expressed in  some  of\t the
\njudgments  of  the Calcutta  High Court, he was\t advised  to
\ndeposit the rent with the Controller even after he was\tsued
\nby the respondent and s. 17(1) began to operate against him.
\nIn dealing with this vexed problem, it is relevant to remem-
\nher that the two competing provisions occur in two different
\nChapters  and apparently cover different fields. Chapter  IV
\ndeals  with  the  question of deposit of  rent\tin  general,
\nwhereas\t s.  17 in  Ch III makes a provision for the payment
\nof  the\t amount\t mentioned by it in Court after\t a  suit  or
\nproceeding  has been instituted by the landlord against\t the
\ntenant. It is common ground that the Rent Controller is\t not
\nCourt within the meaning of s. 17(1). Prima facie. a general
\nprovision for the deposit of rent prescribed by s. 21  would
\nnot  apply  to\tspecial\t cases dealt  with  by\ts.  17.\t The
\nprovisions  of s. 21 and 22 which are general in  character,
\nwould cover cases which are not expressly dealt with by\t the
\nspecial\t provision  prescribed\tby s. 17.  In  other  words,
\nthough a tenant may deposit rent  with the Controller  under
\nthe  provisions\t of  ss. 21 and 22,-as soon  as\t a  suit  is
\nbrought\t against  him  by the landlord, s. 17  which  is   a
\nspecial\t provision,  comes  into operation  and\t it  is\t the
\nprovision of this special section that must prevail in cases
\ncovered by it: that is the first general consideration which
\ncannot be ignored.\n<\/p>\n
Section\t 17  deals with suits or proceedings  in  which\t the
\nlandlord  claims eviction on any of the grounds referred  to
\nin  s.\t13;  and as we have already  noticed,  s.  13  which
\naffords\t protection to the  tenant’s eviction,\tpermits\t the
\nlandlord to claim eviction only if he can place his claim on
\none or the other of the clauses (a) to (k); that is to\tsay,
\nit is ‘only if one or other of the conditions prescribed  by
\nthe  said clauses is proved that the landlord can  claim  to
\nevict  his tenant. Default in the payment of rent is one  of
\nthese clauses, but there are several other clauses referring
\nto  different  causes  of action on which  eviction  can  be
\nclaimed\t by the landlord, and it is to all these cases\tthat
\ns.  17(1)  applies. It is thus clear that normally,  when  a
\nsuit  is  brought  for eviction, the tenant  would  have  to
\ncomply\twith the requirements of s. 17(1). It is only  where
\nowing  to  the refusal of the landlord to  accept  the\trent
\ntendered by the tenant, or where there is a bona fide  doubt
\nas  to\twho  is\t entitled to  receive  the  rent.  that\t the
\nprovisions  of s. 21 empower the tenant to deposit the\trent
\nwith  the Controller. In a11 other cases, if the tenant\t was
\npaying\trent  to the landlord and is faced with a  suit\t for
\neviction,  s. 17(1) will unambiguously apply and the  amount
\nof rent will have to be paid in Court as required by it.  It
\nis  also dear that if a tenant has been depositing the\trent
\nvalidly\t and properly under s. 21, a suit against him  under
\ns. 13(1)(i) cannot be filed. Section 13(1)(i) authorises the
\nlandlord to claim eviction of his
\n43<\/span>
\ntenant\ton  the\t ground that he has made a  default  in\t the
\npayment\t of  rent  as described by it. But  such  a  default
\ncannot be attributed to a tenant who has been depositing the
\nrent  with the Controller properly and validly under s.\t 21.
\nSuch  a\t valid payment\tamounts to payment of  rent  by\t the
\ntenant\tto the landlord under s. 22(3), and so a tenant\t who
\nhas  been  making  these deposits cannot be  sued  under  s.
\n13(1)(i).\n<\/p>\n
  It  is  true\tthat the complication of  the  present\tkind
\narises\twhere a tenant who has been making a  valid  deposit
\nunder  s. 21 is sued for ejectment on grounds other than  s.
\n13(1)(i), and s. 17(1) comes into operation against him.  In
\nsuch  a\t case, if the special provisions  prescribed  by  s.
\n17(1)  apply to the exclusion of sections 21 & 22  the\tfact
\nthat a deposit\thas been made by the tenant can be no answer
\nto the application made by the landlord under s. 17(3)
\n    In this connection, it is necessary to bear in mind\t the
\nfact  that s. 17(1) is really intended to give a benefit  to
\nthe  tenant  who has committed a default in the\t payment  of
\nrent. The first part of s. 17(1) allows such a tenant to pay
\nthe  defaulted amount of rent together with  the  prescribed
\ninterest  in  Court within the time prescribed, and  such  a
\ntenant\twould not be evicted if he continues to deposit\t the
\namount in Court, during the pendency of the suit as required
\nby  the latter part of s. 17(1). In our opinion, the  scheme
\nof  s.\t17(1)  is  a  complete\tscheme\tby  itself  and\t the
\nLegislature  has  intended that in suits or  proceedings  to
\nwhich s. 17(1) applies, the payment of rent by the tenant to
\nlandlord must be made in the manner prescribed by s.  17(1).
\nEven  in cases Where the tenant might have  been  depositing
\nthe  rent with the Controller under s. 21, he has to  comply
\nwith  s. 17(1) before the period prescribed by s. 17(1)\t has
\nelapsed.  It is significant that the requirement to  deposit
\nthe amount in Court comes into force within one month of the
\nservice\t of  the  writ of summons on the  tenant.  In  other
\nwords,appellant\t No. 1 was justified in depositing the\trent
\neven  after the present suit was filed until one month\tfrom
\nthe service of the writ of summons of the suit had  elapsed.
\nThe  Legislature  has  taken the precaution  of\t giving\t the
\ntenant\tone month’s period after the service of the writ  of
\nsummons on him before requiring him to deposit the amount in
\nCourt.\tThe object obviously appears to be that when a\tsuit
\nor  proceeding\thas commenced between the landlord  and\t the
\ntenant for ejectment, and the tenant has received notice  of
\nit,the payment of rent should be made in Court to avoid\t any
\ndispute in that behalf..\n<\/p>\n
It  is\talso  relevant to remember that\t in  the  matter  of
\npayment\t of  rent in Court, s. 17(1) has provided  that\t the
\namount\tto  be paid in future shall be paid by the  15th  of
\neach succeeding month, and that means that the date for\t the
\npayment\t of the amount has been statutorily fixed  which  is
\ndistinct from the requirement of s. 4. Section 4(2) provides
\nfor the payment of rent within the time fixed
\n44<\/span>
\nby contract, but s. 17(1) requires the payment to be made by
\nthe  15th  of  each succeeding month  whatever\tmay  be\t the
\ncontract.  If, according to the contract, rent\twas  payable
\nquarterly,  or\tsix-monthly,  or  even\tannually,  s.  17(1)
\nsupersedes  that part of the contract and requires the\trent
\nto  be paid, month by month, by the 15th of each  succeeding
\nmonth.\n<\/p>\n
   The\tposition  under\t sections  21  &  22  is,   however,
\nsubstantially  different  on this point. Section 21  (I)  in
\nterms  requires\t the  deposit to be  made  within  the\ttime
\nreferred  to  in  s.  4, and that means\t where\tthere  is  a
\ncontract made by the parties in relation to the time for the
\npayment of rent, it is on the contracted date that the\trent
\nhas  to\t be deposited under s. 21. The scheme of  the  three
\nclauses of s. 22 clearly is integrally connected with s. 21.
\nThese  clauses deal with deposits made under s. 21. In\tfact
\nit would be ,difficult to read s. 22(3) independently of  s.
\n22(1)  and (2); all the three clauses of s. 22 must be\tread
\ntogether,  and so, the time for making the deposit  for\t the
\npurpose of s. 22(3) would be the time prescribed by contract
\nand not the statutory time provided by s. 17(1). It is clear
\nthat  the deposit of rent made before the  Controller  under
\nsection 21     is based on the contractual obligation of the
\ntenant to pay the rent,and he makes the deposit because\t the
\nlandlord is not receiving the rent or there is a dispute  as
\nto who the real landlord is. On the other hand, the  deposit
\nof  rent  made in Court under s. 17(1) is the  result  of  a
\nstatutory  obligation  imposed by the said  sub-section;  no
\ndoubt, the amount required to be deposited may be the amount
\nfor which the parties may have entered into a contract,\t but
\nthe manner and the mode in which the deposit is required  to
\nbe made in Court are the result of the statutory  provision,
\nand  in that sense they constitute a  statutory\t obligation.
\nThat  is  another feature which distinguishes  the  deposits
\ncovered\t by sections 21 and 22 from the deposits  prescribed
\nby s. 17(1).\n<\/p>\n
    Mr. N.C. Chatterjee argued that if the majority view  of
\nthe  Calcutta  High  Court is upheld, it may  lead  to\tsome
\nanomalies.  As an illustration, he asked us to consider\t the
\ncase of a suit failing under s. 17(1) which ultimately fails
\nand is dismissed. In such a suit, the rent would have to  be
\ndeposited  in Court by the tenant as required by  s.  17(1);
\nbut if the suit fails, what happens to\tthe rent? Would\t the
\ntenant be treated as being a defaulter, or would the  tenant
\nwho is required to make a deposit in Court as required by s.
\n17(1) be compelled as a precaution, to make another  deposit
\nwith the Controller in cases where the .landlord had refused
\nto  accept  rent  before  he flied  the\t suit?\tWe  are\t not
\nimpressed  by this argument. In our opinion, if\t the  tenant
\nhad deposited the rent in Court as required by s. 17(1),  he
\ncould  not be treated as a defaulter under any provision  of
\nthe  Act.  Payment  in Court made by the  tenant  under\t the
\nstatutory  obligation  imposed\ton him\twould,\tin  law,  be
\ntreated as payment of rent made by him to the landlord.\n<\/p>\n
45<\/span><\/p>\n
   Mr. N.C. Chatterjee also relies on the fact that s. 24 in
\nterms provides that the acceptance of rent in respect of the
\nperiod\tof default in payment of rent by the  landlord\tfrom
\nthe  tenant shall operate as a waiver of such default,\twhen
\nthere is no proceeding pending in Court for the recovery ,of
\npossession  of the premises. The argument is that where\t the
\nLegislature intended to confine the operation of a specified
\nprovision  to cases where there is no proceeding pending  in
\nCourt,\tit  has\t expressly so stated.  In  our\topinion.this
\nargument  is not well-founded. Section 24  merely  indicates
\nthat  the Legislature thought that it was necessary to\tmake
\nthat  provision\t in order to avoid any doubt as\t to  whether
\nacceptance  of rent would amount to waiver or not  in  cases
\nwhere no proceeding was pending in Court. On the other hand,
\nfrom  the wording of s. 24 it may be permissible to  suggest
\nthat  the  Legislature did not think of\t providing  for\t the
\nconsequence of acceptance of rent after the commencement  of
\na proceeding for the recovery of possession. because it knew
\nthat the said matter would be covered by s. 17(1).
\n   Besides,   s.  22(2)\t gives\tsome  indication  that\t the
\nprovisions  of\ts. 22 are not intended to  be  applied\twhen
\nsuits or proceedings have commenced between the landlord and
\nthe  tenant.  It would\tbe noticed that s. 22(2)  says\tthat
\nno.  deposit shall be considered to have been  validly\tmade
\nfor  the  purposes of s. 22(1) if the  tenant  wailfully  or
\nnegligently makes any false statement in his application for
\ndepositing the amount unless the landlord has withdrawn\t the
\namount deposited before the date of  institution  of a\tsuit
\nor  proceeding for recovery of possession ,of  the  premises
\nfrom  the  tenant.  This last clause may  suggest  that\t the
\nprovisions of all the clauses of s. 22 may not be applicable
\nafter the suit or proceeding has commenced.
\n    As we have already pointed out, the question raised\t for
\nour decision in the present appeal really centers round\t the
\ndetermination of the areas covered by s. 17 on the one hand,
\nand  sections 21 and 22 on the other; and though it  may  be
\nconceded that the words used in the respective sections\t are
\nnot  quite clear, on the whole the scheme evidenced by\tthem
\nindicates  that the Legislature wanted s. 17(1)\t to  control
\nthe  relationship  between the landlord and  the  tenant  as
\nprescribed by it once a suit or proceeding for ejectment was
\ninstituted and a period of one month from the service of the
\nwrit  of  summons  on the defendant  had  expired.  We\thave
\ncarefully  considered the reasons given by the two.  learned
\nJudges\t who  delivered\t the  minority\tjudgments   in\t the
\nSiddheswar   Paul’s(1)\tcase,  but  we\thave  come  to\t the
\nconclusion  that  the majority view on the  whole  correctly
\nrepresents  the\t  true\t scope\t and effect  of\t s.  17,  as
\ndistinguished from sections 21 and 22.\n<\/p>\n
    In\tthe result, the appeal fails and must be  dismissed.
\nThere would be no order as to costs.\n<\/p>\n
    (1)A.I.R. [1965] Cal. 105.\n<\/p>\n
L\/B(D)2SCI–5
\n46<\/span>
\n    Before parting with this appeal, however, we would\tlike
\nto  add\t that appellant No. 1 has to submit to\tthe  penalty
\nprescribed  by s. 17(3) apparently because. acting upon\t the
\nopinion\t expressed  by\tsome of the learned  Judges  of\t the
\nCalcutta  High Court, he was advised to continue to  deposit
\nthe rent with the Controller even after the present suit was
\nfiled  against\thim. We do not know whether there  are\tmany
\nother  cases  of the same type. In case\t there\tare  several
\nother  cases  of this type, that would\treally\tmean  unjust
\nhardship  against  tenants  who,  in  substance,  have\t not
\ncommitted default in the matter of payment of rent, and\t yet
\nwould  be exposed to the risk of ejectment by virtue of\t the
\napplication  of\t s.  17(3). In\tour  opinion,  such  tenants
\nundoubtedly  deserve to be protected against  ejectment.  We
\ntrust  the Legislature will consider this matter and  devise
\nsome  means  of giving appropriate relief to this  class  of
\ntenants.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
47<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kaluram Onkarmal And Another vs Baidyanath Gorain on 11 February, 1965 Equivalent citations: 1965 AIR 1909, 1965 SCR (3) 34 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. (Cj) 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-194553","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKaluram Onkarmal And Another vs Baidyanath Gorain on 11 February, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kaluram-onkarmal-and-another-vs-baidyanath-gorain-on-11-february-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kaluram Onkarmal And Another vs Baidyanath Gorain on 11 February, 1965 - 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