Banerjee, J.:— The plaintiffs-opposite party are the landlords of premises No. 57/1, Keshab Chandra Sen Street, in the town of Calcutta. The defendant petitioner is a tenant in the aforesaid premises in respect of two rooms in the ground floor and eight rooms in the first floor. The petitioner's tenancy is one from month to month, according to the English Calendar, at a rental of Rs. 175/- per month.
2. Alleging that the defendant petitioner sub-let some of the rooms, without notice to the opposite party under section 16 (2) of the West Bengal Premises Tenancy Act, and has been causing nuisance in two of the rooms let to him, the plaintiffs opposite party instituted a suit for his eviction, after service of the usual notice to quit. The suit was filed on May 9, 1957. It is not disputed that the summons in the suit was not duly served on the defendant petitioner. Nevertheless, he entered appearance, on May 31, 1957. He also filed a written statement, contesting the claim for eviction on merits.
3. Sections 17 and 22 of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) reads as follows:—
Section 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, subject to the provisions of sub-section (2) 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 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) If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the court shall—
(a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order; and
(b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may, be specified in the order.
(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 subsection (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.”
Section 22: “Time-limit for making deposit and consequences of incorrect particulars in application for deposit.— (1) No rent deposited under section 21 shall be considered to have been validly deposited under that section for purposes of clause (i) of sub-section (1) of section 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 purposes of the said clause if the tenant wilfully 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 of possession of the premises from the tenant.
(3) If the rent is deposited within the time mentioned in subsection (1), and does not cease to be a valid deposit for the reason mentioned in sub-section (2), the deposit 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 of 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.”
4. The defendant petitioner did not deposit in the trial court the amount calculated at the rate of rent for the period from November 1956 to May 1957, after he had entered appearance, in terms of section 17 of the Act, for the reason that he had already deposited the amount with the Rent Controller. Thereupon, the plaintiffs opposite party filed an application, before the trial court, praying that the defendant petitioner's defence against delivery of possession be struck off under section 17 (3), for non-compliance with the provisions of section 17(1) of the Act. That application was allowed by the trial court but the order striking out the defence against eviction was set aside by this Court, on the ground that the trial court had not taken into consideration the deposit of rent made by the petitioner with the Rent Controller for the period for November 1956 to May 1957.
5. Thereafter, on July 23, 1957, the plaintiffs-opposite party made a second application, under section 17(3) of the Act, praying that the defendant petitioner's defence against eviction be struck off for non-deposit, in the trial court, of amounts, calculated at the rate of monthly rent, month by month in terms of section 17(1) of the Act. The petitioner objected to the order being made on the ground that he had deposited the rent upto June 1957 regularly in the office of the Rent Controller, within the time allowed by law, and was therefore, absolved from making further deposits under section 17 (1) of the Act and as such no order under section 17 (3) of the Act should be made against him.
6. The trial court, however, overruled the objection with the following observation:—
“The law requires that the deposit should be made in the Court or payments should be made to the plaintiffs. The Rulings reported in 61 C.W.N at page 893 as well as 62 C.W.N at page 555 also corroborate it. Hence the written statement against delivery of possession is struck off.”
7. Against the aforesaid order the petitioner obtained this Rule. When the matter came up for hearing before this Bench, on August 8, 1960, there was a reference made to a Special Bench, with the following observation:—
“Section 17(3) is a provision in the West Bengal Premises Tenancy Act, 1956, in interpreting the true meaning and scope of which decisions in this court have often differed. We need not refer to the catena of decisions on this point. Suffice it for our purpose to say that none of the decisions considered section 17(3) in the background of section 22(3) of the West Bengal Premises Tenancy Act, 1956, under which the deposit made with the Rent Controller statutorily constitutes payment of rent to the landlord.
Under section 17(1) on a suit or a 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 upto 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.
8. If deposit with the Rent Controller has statutorily the effect of payment of rent to the landlord, then it may be an arguable point that by making such deposit the tenant defendant avoids the mischief of section 17(3).
After the divergence of opinion, expressed by several decisions of this Court, on the scope and effect of section 17(3), we think it eminently desirable that the true scope and effect of section 17(3) should be settled finally by a Special Division Bench of this Court.
9. We, therefore, recommend that the following question, namely:—
“Whether after the service of summons, in a suit for eviction, on a tenant-defendant, ‘deposit’ made by the tenant of the rent in arrear or of the months following, in respect of the premises in suit, with the Rent Controller, constitutes or has the same effect as payment to the landlord, so as to keep the tenant outside the mischief of section 17(3) of the West Bengal Premises Tenancy Act, 1956, be referred to a Special Division Bench.”
10. The Special Bench, however, held the reference to be incompetent with the following observation:—
“Now it appears that the plaintiffs opposite parties filed a suit for eviction of the defendant on May 9, 1957. The Revision case arose out of an application made by the landlords under section 17(3) of the West Bengal Premises Tenancy Act, 1956, asking that the defence of the tenant defendant be struck off because he failed to pay rent for June and July, 1957, which had been deposited with the Rent Controller instead of being deposited in Court. On a reference to the Order sheet we find that the trial court passed the following order on May 31, 1957:—
‘Plaintiffs file hazira. Summons not served. Defendant appears through a lawyer and prays for time to file written statement. Prayer is allowed. To 1/7/57 for filing written statement.’
It appears therefore that the summons in the suit was not served upon the defendant nevertheless he entered appearance in the suit on May 31, 1957. The Division Bench has also observed in the order of reference that the summons in the suit was not duly served on the defendant. But we have been asked to answer a question arising in a case where the writ of summons has been served on the defendant. In the absence of a finding that the writ of summons has been served on the defendant or that on the facts of this case the writ of summons must be taken to have been so served, the question referred to us, does not arise in the Revision Case.”
The matter has now been placed before us for final disposal of the Rule, in the light of the observation by the Special Bench.
11. We must now proceed on the basis that unless the Writ of Summons be actually served on the defendant or be deemed to have been served on him, in the facts and circumstances of the case, the operation of section 17(1) of the Act is not attracted and therefore, a defendant does not fall within the mischief of section 17 (3) of the Act.
12. It was, however, contended before us, that the date of appearance of a defendant, even without service of summons, should be taken to be the date of the service of summons on him and the operation of section 17(1) of the Act should be taken to be attracted against him from such date. We are not prepared to uphold the argument and to add to the words “within one month of the service of the writ of summons on him”, appearing in section 17(1) of the Act, the further words “or within one month of the date of appearance by him without service of summons.” We realise that by so doing we may be opening up a route of escape for a defendant from the penal effect of section 17 of the Act. A tenant defendant, who anticipates the issue of writ of summons, in a suit for eviction against him, may avoid service of summons on him and then voluntarily enter appearance in the suit, making further attempts at service of summons on him unnecessary, and thus keep himself outside the mischief of section 17(3) of the Act. Such cases are likely to be few and far between and it is for the legislature to make appropriate provisions for such contingencies.
13. In the instant case, inasmuch as no summons was served on the petitioner, the time contemplated in section 17(1) of the Act did not begin to run against the petitioner and no order for striking out his defence against eviction should have been made.
14. We, therefore, need not decide in this Rule the effect of valid deposit of rent with the Rent Controller, which statutorily constitutes payment of rent to the landlord, under the provisions of section 22(3) of the Act.
15. For the reasons aforesaid we make the Rule absolute and set aside the order complained against.
16. There will be no order as to costs in this Rule.
Amaresh Roy, J.:— I agree.
S.K.B