P R DAMZEN Vs. R PAL CHOUDHURY

JUDGEMENT

(1.) This Rule has been obtained by the tenant against an order made by the First Additional Court of the Subordinate Judge, Alipore, by which he has struck out the defence of the Petitioner against delivery of possession under Section 17(3), West Bengal Premises Tenancy Act, 1956. The facts which are material for purposes of this Rule may be briefly stated as follows:

(2.) Mr. Ganguly, appearing in support of this Rule, has argued that as there was no service of writ of summons upon the Petitioner in the present case, the learned Subordinate Judge was wrong in holding that the Petitioner deposited the rent beyond the time prescribed by Section 17. The learned Subordinate Judge has held that for the purposes of this proceeding it must be held that summons was served upon the Petitioner on July 26, 1956. That was the date on which the registered post card was served upon the Petitioner. That registered post card, however, cannot, in our opinion, be said to be a writ of summons within the meaning of Section 17, Sub-section (1) of the West Bengal Premises Tenancy Act. Apart from anything else, under the provisions of Order V. Rule 2 of the Code of Civil Procedure, every summons has to be accompanied by a copy of the plaint, or, if so permitted, by a concise statement. The registered post card which was served upon the Petitioner was not accompanied by a copy of the plaint, nor did it contain any concise statement of the Plaintiff's claim. Therefore, it is impossible for us to hold that the registered post card was a writ of summons. Therefore, the period of thirty days from the date of the service of the writ of summons will not apply to the facts of the present case. The Petitioner was supplied with a copy of the plaint on August 17, 1956, and he sent the rent for July by money order to the landlord on August 20, 1956. There is no material on the record to show on which date this money order was actually tendered to the landlord but it can be reasonably inferred that it was offered to the landlord within two or three days from the date of despatch. It is therefore reasonable to hold that the money order was tendered to the landlord by the postal authorities on or about August 23, 1956, but it was refused by the landlord. The Petitioner then moved, as I have already stated, an application before the court on September 5, 1956, and actually deposited the rent for July and August on September 6. Even if it be assumed that the registered post card which was served upon the Petitioner on July 26, 1956, was a writ of summons, it is clear that the Petitioner paid the rent to the landlord within one month from the date of service of that registered post card. Both the parts of Sub-section (1) of Section 17 which I have quoted above, give the tenant an option to make the payment directly to the landlord or to deposit the rent in court. In the present case the remittance of the rent for July by money order to the landlord, amounted to payment of rent to the landlord within thirty days from the date of service of the registered post card upon the Petitioner.

(3.) Mr. Mukherjee appearing for the opposite party has contended that in a case where the writ of summons has not been served as contemplated by the first part of Section 17(1), the tenant is nevertheless under an obligation to pay or deposit the rent by the fifteenth day of the following month under Section 4(2) of the Act. So rent for July should have been paid or deposited by August 15, 1956, more particularly because the registered post card was served on the tenant on July 26, 1956. There is an obvious fallacy in this argument. What is required to be paid under Section 4 is "rent" which is payable during the subsistence of the tenancy; but what is required to be paid or deposited under Section 17(1) is not rent but an amount calculated at the rate at which rent was last paid together with a certain amount of interest. This distinction is important, because, after a suit has been instituted under Section 13 on a notice to quit the landlord is seeing on the footing that the relationship of landlord and tenant has come to an end and there can be no question of the tenant paying any rent after the institution of the suit. In the second place, Section 4 does not contemplate a deposit in court as Section 17. Thirdly, a default within the meaning of Section 4 will not attract the penalty contemplated by Section 17. For these reasons I hold that Section 4 does not apply to a case which comes under Section 17.