The Judgment of the Court was delivered by

Sabyasachi Mukharji, J.:— The appellant in this case is a tenant. A suit was filed against him for ejectment on the ground of default. The appellant resisted the suit on the ground that there was no default and the appellant took certain other points, namely, defects in the notice to quit Before the trial Court the suit was heard and it was found that there had been default for more than 4 months within, a period of 12 months prior to the institution of the suit It has been further held by the learned trial Judge that the notice to quit was valid and had been properly served. A decree for ejectment was passed. The defendant tenant appealed therefrom. The main ground of appeal is based on an amendment introduced in sub-section (4) of Section 17 of the West Bengal. Premises Tenancy Act, 1956. Previous to the amendment the law was that if there was more than 4 months default within a period of 12 months prior to the suit then the tenant lost his right of protection. even though he had complied with the provisions of Section 17(1) or (2) of the said Act; in other words, the tenant was required to comply with the provisions of Section 17 (11 or (2) and even if it had so complied a default of 4 months within a period of 12 months prior to the suit took away the protection. When the suit was decreed by the learned trial Judge, it was found the matter came within the proviso to subsection (4) of S. 17 and there having been default of 4 months within the period of 12 months prior to the suit, the tenant had lost his protection and a decree was passed for eviction. By West Bengal Premises Tenancy (Amendment) Act. 1968 (Act IV of 1968) the sub-section (4) of S. 17 has been amended. By sub-section (3) of Section 2 of the amending Act subsection (4) of S. 17 has been amended and the proviso has been altered. Under the altered proviso there was no longer taking away of protection as in the previous proviso. But it says that for once the tenant will be protected provided he has complied with S. 17(1) or Section 17(2) of the said Act In other words, if he has complied with the provisions of sub-section (1) or (2) of S. 17, he will be protected even if he has defaulted for 4 months within a period of 12 months prior to the suit but if he makes a default once more for a period of 4 months within the period of 12 months then the protection would be lost The suit in the instant case was filed on 30th August, 1956 and it was decreed on the 19th of September, 1958. After the suit was instituted the appellant tenant duly complied with the provisions of Section 17(1), but after the suit had been decreed, although the tenant continued to make deposit in Court, he failed to make one deposit in time, namely for January, 1960, for a few days. According to Section 17(1), the deposit for the month of January should have been made by the 16th of February, 1960, but it appears that the deposit was made on the 19th of February, 1960. It must further be noted that one day between these days was a holiday. In the appeal the appellant claimed before the Division Bench relief under sub-section (4) of S. 17 as amended, and it was contended that in terms of the amendment he was entitled to be excused for once in respect of his default The Division Bench felt that the following question of importance arose in the instant case:—

“Where a decree for eviction has been made against a tenant on the ground of four defaults, as provided for in the proviso to Section 17 of the West Bengal Premises Tenancy Act. 1956, prior to its amendment by the West Bengal Premises Tenancy (Amendment) Act, 1968 can he take advantage of the altered proviso to sub-section (4) of S. 17, even if he has not complied with the provision of Section 17(1) right upto the time that he asked relief from the Court of appeal, or is it sufficient to have complied with the provisions of Section 17 only upto the date of the Passing of the decree in the lower Court?”

2. Before the question is further considered, it will be necessary to deal with the relevant statutory provisions and certain decisions of this Court. Under West Bengal Premises Tenancy Act, 1956 the definition of tenant’ provides as follows:—

“2(h) “tenant” 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”.

3. Section 17 of the Act has undergone several amendments since its introduction of the Act Section 17 originally stood as follows:—

“17. When a tenant can get the benefit of protection against eviction.— (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13. the tenant shall, within one month of the 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 upto 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.

(2) … … … … … … …

(3) If a tenant fails to deposit or pay any amount referred to in sub-section (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.

(4) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (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.

Provided 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”.

4. It is not necessary to set out In detail the several amendments from time to time made to this section except so far as they are relevant for the purpose of this case. In 1968 after the amendment of the Act by the West Bengal Premises Tenancy (Amendment) Act, 1968 being Act IV of 1968, the section so far as relevant for the present purpose has been amended in the following terms:—

“17(1) … … … … … …

(2-A) … … … … … …

(2-B) … … … … … …

(3) … … … … … …

(4) If a tenant makes deposit or payment as required by sub-section (1), sub-section (2) or sub-section (2-A) 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 this 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”.

5. Section 5 of the amending Act provides that the amendments made to the said Act under Section 2 of the said amending Act shall have effect in respect of suits including appeals which are pending at the date of the commencement of the said Act The amendments to Section 17 which have been set out hereinbefore were introduced by the said Section 2 of the said amending Act The said amendments made by Act IV of 1968 have been substituted by the Act 30 of 1969. In this case, as mentioned hereinbefore originally the tenant had made a default prior to the institution of the suit in payment of rent for four months within the period of twelve months. Prior to the amendment as the Act stood the tenant was liable to be evicted. The tenant had preferred an appeal, as mentioned hereinbefore, and during the pendency of the appeal he has made a default for the subsequent period of one month subsequent to the passing of the decree, but prior to the hearing of the appeal by a few days. Undoubtedly, in view of the amendment introduced to sub-section (4) of S. 17 the tenant would have been entitled to the protection against eviction had he not made a further default in paying the amount due for the month of January, 1960. The question that arises in this case is whether in spite of the said default for a few days to make the payment in terms of Section 17(1) of the West Bengal Premises Tenancy Act, 1956, the tenant is still entitled to protection in the facts and circumstances of this case. Before we examine the question further we will refer to certain decisions on this point to which our attention was drawn.

6. In the case of Kanailal Dutta… v. Kanailal Patra…Opposite Party., (1963) 67 Cal WN 334 the ejectment suit was decreed by the trial Court on 28-2-1961. There was an appeal by the tenant defendant. The appeal was allowed on 30-11-1961 and the matter was sent back on remand to the trial Court. The records of the case were received by the trial Court on 26-1-1962. On 1-2-1962, the tenant applied for permission to deposit arrears of rent and with the leave of the Court, the tenant deposited the arrears of rent in Court On 19-7-1962 the landlord filed a petition under Section 17(3) of the West Bengal Premises Tenancy Act, 1956. The said petition was allowed and the’ defence against ejectment was directed to be struck out It was held by Chatterjee, J. that the word ‘suit’ in Section 17 of the Act did not include an appeal. In that view of the matter the defendant in the said case, having ceased to be a tenant from the date of the trial Court's decree, there could be no question of his liability for deposit rent during the time the appeal was pending in the lower appellate Court, or in other words, from 28-2-1961 to 30-11-1961. Chatterjee, J., referred to the definition of ‘tenant’ in the West Bengal Premises Tenancy Act, 1956 end came to the conclusion that after the passing of the decree for ejectment or order for eviction in a suit or in a proceeding by a Court of competent jurisdiction, a tenant ceased to be a tenant under the Act and as such the liability of the tenant to deposit rent under Section 17(1) of the Act could not be imposed upon him after the disposal of the matter by the trial Court. The pendency of appeal, according to the learned Judge, did not affect the position. The tenant continued to be in possession not by virtue of being a tenant under the statute but by virtue of the order of stay of the appellate Court. In the case of Radharani Dassi v. Angurbala Dassi, 67 Cal WN 501 the petitioners filed an ejectment suit which was dismissed on contest on 24-6-1958, Petitioners thereafter filed an appeal. The said appeal was allowed on 12-6-1961, and the case was remanded to the trial Court for further consideration relating to certain matters. On 11-11-1961. the trial Court received the records of the case together with the remand order. Sometime in November, 1961 the parties entered appearance in the trial Court. The landlord subsequently applied to the trial Court for an order striking off the defence of the tenant on the ground of default within the meaning of Section 17(1) of the West Bengal Premises Tenancy Act. 1956. The trial Court dismissed the application. Against that order of dismissal, the petitioners moved the High Court. For the purpose of the said case it was held that the landlord had established the default for the month of Agrahayan 1368 B.S The last date of Agrahayan 1368 B.S corresponded to 16-12-1961. Under Section 17(1), the tenant had time to deposit in Court the monthly sum for the month of Agrahayan upto 31-12-1961. The tenant made the required deposit in Court on 11-1-1962, It was held by the Division Bench consisting of Bachawat, J., and R.N Dutt, J., that the obligation of the tenant te make the deposit under Section 17(1) revived as from the date of the re-admission of the suit by the trial Court after remind. Consequently, the tenant failed to deposit or pay the monthly sum for the month of Agrahayan. 1368 B.S as required under Section 17(1) and accordingly his defence against delivery of possession was liable to be struck off under Section 17(3) of the Act. In the case of Lakpat Rai Marwari v. Radheshyam, (1965) 69 Cal WN 858. on 26-6-1961, an ejectment suit against the petitioner was filed on the ground of default in payment of rent. The suit was decreed ex parte on 12-7-1962. On the application under Order 9, Rule 13 of the CPC. the ex parte decree was set aside end the suit was restored to file on 10-10-1963. On an application under Section 17(3) of the West Bengal Premises Tenancy Act. 1956 on the ground that the tenant defendant had defaulted in paying rent from November, 1962 to September, 1963, the defence against delivery of possession was struck out on 20-3-1964. An application for review of the order also failed, D.N Das Gupta, J., held that after the ex parte decree was passed the defendant did not come within the definition of “tenant” in the West Bengal Premises Tenancy Act, and for the purpose of Section 17 of the said Act, the suit which was decreed on 12-7-1962 began to continue only after the suit was restored to file. In that view of the matter there was no liability upon the defendant to deposit rent under Section 17 of the Act from the date of the ex parte decree till the date of restoration of the suit. Accordingly, the order striking out the defence was not tenable in law.

7. When the instant case came up for ‘hearing before the Division Bench consisting of Sinha, C.J, and B.C Mitra, J. their Lordships were of the opinion that if the tenant was under no liability to make the deposit under Section 17(1) during the pendency of the appeal, the object of the purpose of Section 17(1) was liable to be defeated and as such their Lordships felt the need to refer this question to this Bench. Their Lordships referred this matter accordingly under Rule 1 (ii) of Chapter II of the Appellate Side Rules.

8. It is important to emphasise that the liability to deposit under Section 17(1) for the purpose of obtaining benefit of protection against eviction is imposed upon the tenant within one month of the service of the writ of summons on him or where he appears in a suit or proceeding without the writ of summons being served upon him within one month from his appearance. In a case for instance, where, the landlord has succeeded in the trial Court and an appeal is preferred by the tenant, this condition cannot be fulfilled without doing unnecessary strain to the language of the sub-section (1) of S. 17. Will the tenant in that case be liable to deposit rent even though he has preferred an appeal within one month from the filing of the appeal? Again in a case where the landlord files an appeal when will the liability to deposit the rent in terms of Section 17(1) during the pendency of the appeal arise? Will it be from the date of the service of the notice of appeal? Unless the expression “date of the service of the writ of summons” is read in those cases as either date of filing of the appeal or “date of the service of the notice of appeal”, obligation under subsection (1) of S. 17 cannot be insisted on a tenant during the pendency of the appeal. That, in our opinion, would be doing undue strain to the language used in the statute. We find no justification in the scheme or the purpose of the Act to warrant such straining of language. Then there are the expressions used in the proviso to sub-section (4) as amended. The proviso provides that the tenant shall not ‘be entitled to any relief under sub-section (4) if “having obtained such relief once in respect of the premises” he has again made default in payment of rent for 4 months within a period of twelve months. Therefore, it is apparent that in order to be disentitled to protection under Section 17(4). the proviso provides that he has to make a default in payment of rent for four months “again”, that is to say, subsequent to his having obtained relief against eviction under Sec. 17(4) in an appropriate proceeding. In this connection the definition of the tenant becomes relevant as was noticed by Chatterjee J., in the judgment referred to hereinbefore. The statute provides a statutory definition of tenant and it includes a person who is in possession after termination of his tenancy but only until a decree or an order for eviction is not made by a competent Court. Once such a decree is made by a Court of competent jurisdiction, the statutory tenancy comes to an end. The liability under Section 17(1) is the liability of the tenant as defined in clause (h) of Section 2 of the Act Taking the scheme of the Act and construing the expressions used in the light of the above considerations, it appears to us that the liability under Section 17(1) to deposit rent does not continue during the pendency of the appeal after a decree for eviction has been passed even though the tenant continues to be in possession by virtue of an order of the appellate court during the pendency of the appeal. It is true that the amending Act has made this amendment applicable to appeals which are pending on the date of the amendments. It means, in our opinion. that the protection and the substantive rights given to the parties by the amendment would be available to the tenant if the appeal was pending at the time of the introduction of the amendment. But it does not. in our opinion, mean that the liability which was there only during the pendency of the suit and not during the appeal is in any way extended by the said provisions of the amending Act It is true that on the basis of this construction, the tenant would get relief even though he might not have deposited the rent in Court under sub-section (1) of S. 17 during the pendency of the appeal. But that does not absolve the tenant of his liability to pay rent or mesne profit which is independent of Section 17 of the Act Section 17(1) read with Section 17(3) imposes no additional liability for rent or mesne profit on the tenant. It imposes certain conditions for certain reliefs and certain manner of prosecution of the suit The conditions must, therefore, be construed in terms of the conditions actually imposed. The liability of a tenant for rent or mesne profit for the period in occupation remain unaffected by Section 17. Therefore, it would not, in our opinion, be correct to state that if the provisions are so construed that the tenant has not any obligation to make the deposit under. Section 17(1) during the pendency of the appeal, the object of Section 17(1) would be defeated. It is significant on this aspect to remember that the Amending Act of 1968 or the Act 30 of 1959 did not make any amendment to the definition of tenant.

9. In the aforesaid view of the matter we are of the opinion that the tenant, in the facts and circumstances of this case is entitled to protection against eviction under sub-section (4) of S. 17 in view of the fact that his default was only once for a period of twelve months and the subsequent failure of the part of the tenant to deposit rent in accordance with Section 17(1) of the Act during the pendency of the appeal does not in any way affect the matter.

10. We therefore, allow the appeal and set aside the order and judgment of the Third Bench of the Court of Small Causes dated 19th of September, 1958 and dismiss the suit In the facts and circumstances of this case we direct that the tenant appellant would pay the costs of the Trial Court as well as the costs of this appeal which we assess at twenty gold mohurs.

11. Arun K. Mukherjea, J.:— I agree.

12. M.M Dutt, J.:— I agree.

13. Appeal allowed.