NANDALAL DE Vs. SULEKHA DHAR

JUDGEMENT

(1.) THIS appeal is by the Plaintiff. The plaintiff filed a suit for ejectment on the ground of default; The case of the defendant was that he tendered rent to the landlord in due time, but on landlords refusal to accept rent he had no other alternative but to deposit rent with the Rent Controller. That there was no fixed date by which the tenant was required to pay to the landlord and as such all the deposits made with the Rent Controller are valid deposits. The learned trial court found that there was no proper tender of rent to the landlord and that under the contract the tenant was liable to pay to the landlord by 7th of the next month for which rent was due and that being so, all the deposits made with the Rent controller are invalid deposits. He also found that the defendant is a tenant of the suit premises at a monthly rent of Rs. 60/ -. The defendant deposited Rs. 75/- per month with the Rent Controller. It is the case of the defendant that there was another go-down in the same premises in respect of which the defendant was also a tenant under the plaintiff, the rent for which was Rs. 15/- and the rent for the two tenancies was amalgamated and as such the defendant deposited Rs. 75/- per month with the Rent Controller. The trial court disbelieved the story of amalgamation. The learned Appellate Court found that there was proper tender of rent to the landlord and as the landlord refused to accept rent, the defendant deposited rent with the Rent Controller and as there was no contract as to the date by which rent was to be paid, the deposits with the Rent Controller were valid deposits. The learned Appellate Court further found that during the pendency of the appeal the plaintiff withdrew all the amounts deposited with the rent Controller and that being so, there was waiver of the notice to quit on the ground of default as the suit for ejectment was only on the ground of default.

(2.) ONE of the main points that awaits decision in this appeal is whether by withdrawal of the deposits by the landlord during the pendency of the appeal there was waiver of the notice to quit on the ground of default.

(3.) MR. Manindranath Ghosh, learned advocate appearing on behalf of the appellant draws our attention to Sections 17, 21, 23 and 24 of the West Bengal Premises Tenancy Act. It is his contention that Section 17 imposes a liability on the tenant to deposit in the court or with the Controller or pay to the landlord within one month from the service of the writ of summons all arrears of rent calculated up to 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. The tenant is under further obligation to continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate. There is no provision in section 17 that if such deposit is made, the landlord is precluded from withdrawing the said amount. The position of the defendant under the West Bengal Premises Tenancy Act is peculiar. Even after the termination of the tenancy by a notice to quit, the defendant remains a statutory tenant so long as he not evicted from the suit premises and so long as he is in possession of the suit premises he is under obligation to pay or deposit an amount equivalent to rent. It may he mentioned in this connection that in Bam Chod -Vs-Madhabji A. I. R. (1974) Patna 211 it has been held that "the plaintiff's withdrawal of delayed rent deposits constitutes waiver of right to get defence struck out. " In this case the plaintiff came up with an application under section 17 (3) for striking out the defence on the ground that there was non-compliance by the defendant of court's order as the deposits were not make within time. The plaintiff wanted to get special advantage because of the default on the part of the defendant and that being so, if he withdraws the delayed rent deposits he cannot at the same time go on with his application under Section 17 (3 ). The position of rent deposited by a statutory tenant must be considered from a different angle. Section 21 lays down the procedure how rents are to be deposited with the Rent controller. Section 23 provides :