P.N Mookerjee, J.:— The petitioner before us was defendant No. 1 in a suit for ejectment, brought by the landlady, plaintiff-opposite party No. 1. The tenancy in suit was in respect of premises No. 40/1, Karaya Road. Ballygunge, in the suburbs of Calcutta. The petitioner was the original tenant in occupation of the above premises at a rental of Rs. 80/- per month. On or about the 4th of January, 1957, thy plaintiff opposite party No. I instituted the aforesaid suit, Title Suit No. 41 of 1957, in the court of the Second Subordinate Judge, Alipore against the petitioner for his ejectment from the above premises, and, in the plaint, a statement was made that the petitioner was a habitual defaulter and was in default in the payment of rent to the requisite extent and for the requisite period and was not, accordingly, entitled to any protection under the West Bengal Premises Tenancy Act, 1956. The suit was brought after service of the necessary notice to quit.

2. In the suit, the petitioner entered appearance and his defence, inter alia, was that he was not a defaulter, as alleged by the plaintiff, and had not forfeited his claim to protection under the Rent Control Law by reason of any default whatsoever. The petitioner further contended that, on account of certain disputes between the parties he was depositing the rent duly with the Rent Controller, but, thereafter, at the request of the plaintiff's husband, such deposit was discontinued and the amounts of rent, as they fell due, remained in deposit with the petitioner, subject to appropriate deductions on account of the fact that he had to pay Corporation rates in respect of the disputed premises, amounting to Rs. 387-10-10 pies, and also to incur costs of repair of the said premises to the tune of Rs. 771/-, and the petitioner claimed that he was entitled to deduct those amounts from the rents which were lying in deposit with him as aforesaid; upon entering appearance in the suit, the petitioner deposited a total sum of Rs. 3,195.66 nP. which, according to him, was the rent kept by him in deposit, as aforesaid, at the time less the amounts, due to him (petitioner) on account of Municipal taxes and repair costs referred to above, which were deducted by him out of the said rent. The petitioner also went on depositing, in terms of sec. 17(1) of the West Bengal Premises Tenancy Act, 1956, a sum of Rs. 80/- per month on account of current rents, month by month, as required by the said subsection. Admittedly, the opposite party No. 2, claiming to be a sub-tenant in respect of the ground-floor of the above premises (40/1, Karaya Road) under the present petitioner, applied before the Rent Controller under sec. 16(3) of the West Bengal Premises Tenancy Act, 1956, for a declaration of his direct tenancy under the landlady (opposite party No. 1) in respect of the said ground-floor portion. The said application was registered as Case No. 2576-A of 1956. To the said application, the petitioner (tenant) and opposite party No. 1 (landlady) had both been impleaded and, upon the opposite party No. 2's prayer, he was added as defendant No. 2 to the present suit, while the said sec. 16(3) case was pending before the Rent Controller, and, as such defendant No. 2, he duly filed his separate defence. Eventually, the said sub-tenant opposite party No. 2's prayer for being declared a direct tenant under the landlady opposite party No. 1 and for determination and fixation of the rents, payable by the said opposite party No. 2 and the petitioner respectively, to the said landlady (opposite party No. 1), was allowed by the learned Rent Controller by his orders, dated September 11, 1957, and May 26, 1958, and the rent payable by the petitioner to opposite party No. 1 was determined and fixed at Rs. 69-13-6 pies per month and that payable by opposite party No. 2 to opposite party No. 1 at Rs. 49-8 as, with effect, in either case, from the date of the said final order, namely, May 26, 1958. Immediately thereafter, the petitioner made his present application, purporting to be one under sec. 17(2) of the West Bengal Premises Tenancy Act, 1956 for determination of the amount of rent, payable by him, month by month, in terms of the said Act (Sec. 17), with a prayer, further, of giving him credit for the excess amounts, paid by him, subsequent to the above date. May 26, 1958. This application, finally, came up for hearing before the learned Subordinate Judge on November 27, 1958, and, by his order of the said date, the learned Subordinate Judge was pleased to hold that, the petitioner's application was not maintainable, he being of the opinion that Sub-sec. (2) of Sec. 17 is controlled by sub-sec. (1) and, accordingly, on the admitted fact that the rate, at which the rent was last paid was Rs. 80/- per month, the petitioner could not claim to be entitled to deposit at the lesser rate determined and fixed by the Rent Controller, namely, Rs. 69-13-6 pies p.m, during the pendency of the present suit, and he held in express terms that “the question of determination of rent due to the new fact, alleged to have cropped up during the pendency of the suit, does not arise”. Against this order of the learned Subordinate Judge, the present Rule was obtained by the petitioner.

3. Before us, Mr. Das Gupta, who appeared in support of the Rule, contended, in the main, that his client's application had been thrown out by the learned Subordinate Judge on insufficient and untenable grounds and that he was entitled to have a determination of the amount of rent, payable by him, under and in terms of sec. 17(2) of the West Bengal Premises Tenancy Act, 1956, irrespective and independently of sec. 17(1) of the Act.

4. The Rule was opposed by Mr. Sen, whose principal contention was that, having regard to the terms of sub-sec (2) of sec. 17, the rate, as mentioned in sub-sec. (1) of the said section, namely, the rate, at which the rent was last paid, could not be disturbed and, if that view be correct, there can be no question that the present Rule would fail, as, admittedly, in this case, the rate, at which the rent was last paid by the petitioner, was the rate of Rs. 80/- per month, at which he was depositing, prior to the above order of the learned Rent Controller and, even thereafter, uptill the present day. The propriety of these rival contentions is the point for consideration in this Rule.

5. In our opinion, this Rule should succeed. It is true that sec. 17(2) of the West Bengal Premises Tenancy Act, 1956, is not very happily worded and comments have already been made, though on other points, as to the phraseology of the said sub-section and difficulties have been felt by the Court in construing and interpreting the same. But, at the same time, taking a reasonable view and on a fair reading of the two sub-sections (1) and (2) of the said sec. 17, in the light of the other two sub-sections (3) and (4), and keeping in view the purpose of the Act, we are inclined to hold that, except in cases, where the rate is admitted by and between the parties, or, in other words, where there is no dispute as to the amount of rent payable by the tenant, which, obviously, includes the rate, at which the rent is to be held payable, the matter should be determined by the Court under sub-sec. (2) and this determination is not, in any way, fettered by the terms of sub-sec. (1). Indeed, the point has come up before this Court in this specific form and has been considered in its recent decision in the case of Chowringhee Properties Ltd. v. Madanlal Khanna, (1) 1959 C.L.J 43, where the point appears to have been fully and exhaustively argued and, if we may say so with respect, fully and exhaustively dealt with by our learned brother, Bachawat, J. With that decision we are in entire agreement and we would only point out that any other view would lead to the gravest injustice, as will be demonstratively clear from the facts of the case before Bachawat, J., in 1959 C.L.J 43, supra. That, indeed, was an extreme case, where a contractual rent of Rs. 1026/- per month had been standardised by the Rent Controller during the pendency of the suit at Rs. 259/97 nP. per month, and, if, in such circumstances, the tenant had been compelled to pay or deposit rent at the rate, at which it was last paid, it would have been an outrageous application of the law on the point and would have led, to say the least, to a clear denial or travesty of justice. Happily for us and for the administration of justice, the language of the two sub-sections (1) & (2) of sec. 17 does not necessarily compel the courts to effectuate such injustice and, on the reasonings, given by Bachawat. J., with which we fully agree and express our respectful concurrence, we think, without the least doubt or hesitation, that the proper interpretation of sub-sec. (2) would be that, in a case, inter alia, where rent is standardised before or during the pendency of the ejectment suit, and the tenant brings it to the notice of the court and raises the relevant dispute as to the amount of rent, payable by him, which, of course, includes the rate of rent, or, the rate, at which it is to be paid, the court, in spite of sub-sec. (1) of sec. 17, is entitled, on the tenant's application, to determine and fix the rate, payable under sub-sec. (2), at the standardised figure. In the present case, there has been fixation or determination of the rent, payable by the petitioner, under sec. 16(3) of the above Act, but that also, as the section itself sufficiently shows, is the “fair rent” under the Act, which is just another name for “standard rent” under the earlier statutes.

6. We do not think that the above view is really in conflict in any way with the decision of this Court in the case of Gujarat Printing Press v. Naraindas Jewraj, (2) 64 C.W.N 157, where the only question was as to whether, when a dispute had been raised by the tenant as to the amount of rent, payable by him, sub-sec. (1) or sub-sec. (2) of sec. 17 would apply and if sub-sec. (2) applied, what would be the period of time, within which the amount, determined by the court, would have to be deposited, and whether the dispute would cover not only dispute as to the amount of arrears but also dispute as to the current rent, namely, the rate, at which such rent was to be paid.

7. It is true that in that judgment (Vide p. 160), there was reference to the “rate mentioned in sub-sec. (1),” but that was merely incidental and illustrative and it must be read in the light and context of the specific contention, raised and considered in that particular proceeding. It certainly was not meant to be exhaustive and was not used from that point of view and the question which have arisen in the present case and which was decided by Bachawat, J., in 1949 C.L.J 43, supra, did not arise or require consideration in the (2) 64 C.W.N 157 Case.

8. The other decisions of this Court in the cases of Dwijesh Chandra Maitra v. Kshitish Chandra Ghose, (3) 61 C.W.N 837, and Tarak Nath Gupta v. Lt. Col. Karuna Kumar Chatterjee, (4) 62 C.W.N 830, to which also reference was made during arguments, were concerned really with the time factor, as aforesaid, and the circumstances, under which the one or the other sub-section would apply, but of them too, (4) 62 C.W.N 830, at least, would more or less, support the view, taken above by us, and by Bachawat, J., in 1959 C.L.J 43 supra.

9. In the above view, we would hold that the petitioner-tenant's application in the instant case, cannot be thrown out upon the ground, — somewhat summary and in the nature of a preliminary ground, — on which it has been thrown out or rejected by the learned Subordinate Judge, but the said application has to be considered on the merits in the light of the observations, made above.

10. We would, accordingly, make this Rule absolute, set aside the order of the learned Subordinate Judge and direct him to consider and dispose of the petitioner's aforesaid application before him in accordance with law in the light of the observations, made in this judgment.

11. Costs of this Rule will abide the final result of the aforesaid application.

Niyogi, J.:— I agree.

S.K.B