2. The defendant of the trial Court, Ajit Kumar Sen Gupta was a tenant under the plaintiffs in respect of some premises described in the plaint. The plaintiffs instituted a suit for eviction against the defendant after service of a notice to quit on the ground that the disputed premises, which consisted of a flat, were required by the plaintiffs for the purpose of building and rebuilding. The defendant contested the suit by filing a written statement. Several objections were taken in the written statement against the claim of the plaintiffs, the principal objections being that no legal or valid notice to quit was served upon the defendant and that the disputed flat was not required by the plaintiffs for the purpose of building and re-building.

3. The suit was instituted after the West Bengal Premises Tenancy Act, 1956 (West Bengal Act XII of 1956) (which shall henceforth be described as the Act) had come into operation. During the pendency of the suit in the Trial Court, an application under section 17(3) of the Act was filed on behalf of the plaintiffs on the allegation that current rent had not been deposited by the tenant according to the provisions of sec. 17 of the Act. A prayer was made by the landlords plaintiffs for striking out the defence of the defendant against delivery of possession. This application was heard by the Trial Judge in the presence of both parties, and it was allowed on 6th January, 1958, and the defence of the defendant against delivery of possession was struck out, and the suit was adjourned to 21st January, 1959, for ex parte hearing. It thus appears that the Trial Judge not only struck out the defence of the defendant against delivery of possession, but struck out the whole defence by passing an order that the suit should be heard ex parte. The suit was thereafter heard ex parte on 21st January, 1958, and it was decreed.

4. The tenant preferred an appeal from the ex parte decree passed by the Trial Judge. The learned Chief Judge who heard the appeal allowed the appeal in part. He was of opinion that the defence of the defendant in so far as it related to delivery of possession was rightly rejected, but there remained the other part of his defence, namely, whether a valid and sufficient notice to quit was served upon the tenant. The learned Chief Judge further held that it was open to the defendant to press this part of the defence. He, therefore, remanded the suit in part to the Trial Judge giving a direction that the parties should be allowed to produce relevant evidence relating to the question of service of notice and its validity and sufficiency. The learned Chief Judge further directed that the suit should be decreed if the Trial Judge found that the notice had been properly served and it was valid and sufficient, but he should dismiss the suit if the finding was to the contrary. This Second Appeal has been preferred by the tenant from the above order of remand passed by the Lower Appellate Court. Plaintiffs have also filed a cross-objection regarding that part of the remand order by which an opportunity has been given to the tenant to contest the notice. I shall first take up the appeal and then the cross objection.

5. Mr. Mukherjee appearing on behalf of the tenant submitted two points for my consideration regarding the question of striking out of the defence of the tenant. Mr. Mukherjee did not question the fact that after the institution of the suit, the tenant failed to deposit current rent, month by month, according to the provisions laid down in section 17(1) of the Act. Subsections (1) and (3) of section 17 of the Act are relevant for my consideration, and they are quoted below:—

“17(1) On a suit or proceed ing 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 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 up to 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 of that rate.”

“(3) If a tenant fails to deposit or pay any amount referred to in sub-section (1), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.”

6. The first contention raised by Mr. Mukherjee in support of his argument that the rejection of the defence against delivery of possession was improper, is based upon the language of sub-section (1) of section 17 of the Act. Mr. Mukherjee submitted that the above sub-section contemplates a suit against a tenant who must have been in arrear before the institution of the suit, and the question of payment of monthly rent by the tenant arises only after he has made good all previous arrears. The actual wording of the sub-section lends some measure of support to Mr. Mukherjee's contention. The expression “and shall thereafter continue to deposit or pay” occurring towards the last portion of sub-section (1), gives an impression that current rent should be paid after arrears have been cleared off by the tenant. Mr. Mukherjee, therefore, contended that in order that sub-section (1) of section 17 may apply to a suit, the tenant, must have had some arrears at the date of the suit, which this tenant admittedly had not. In my opinion, this argument of Mr. Mukherjee cannot be upheld.

7. Section 17 of the Act contemplates a suit for eviction by a landlord against a tenant on one or other of the ground referred to in section 13. It will be preposterous to hold that such a suit can be instituted against a tenant who is in arrear and not against a tenant who had got no arrear. Section 13 of the Act entitles a landlord to bring a suit for eviction against his tenant on several grounds, some of them being the reasonable requirement of the landlord for the purpose of building or rebuilding or for purposes of his own occupation. It would be preposterous to hold that such a suit can be instituted by a landlord only against a tenant in arrear. In my opinion, sub-section (1) of section 17 of the Act applies both to cases where the tenant is in arrear, and where he is not in arrear. The first contention of Mr. Mukherjee that section 17 of the Act has got no application, therefore, fails.

8. Mr. Mukherjee argued, in the next place, that in this case, there was no service of summons on the tenant, and so the above section has got no application. This contention of Mr. Mukherjee fails for two reasons. In the first place, the record of the Trial Court shows that there was service of summons upon the tenant. Mr. Mukherjee drew my attention to the report of the bailiff and argued that there was no personal or real service upon the tenant. The bailiff's report, no doubt, shows that the service was defective, but then the Court accepted that service as good and valid and the tenant entered appearance on the basis cf that service and he never questioned the validity of the service of summons in any of the courts below. It is not, therefore, permissible for the tenant to raise this point for the first time in this Second Appeal. This view gains some support from the case reported in (1) 63 C.W.N 216, Narendra Math Nandi v. Amiya Choudhuri, to which I was party.

9. Another reason for disallowing this part of Mr. Mukherjee's contention is that the question of the service of summons has got nothing to do with the question of payment of monthly-rent by the tenant after the institution of the suit. The quesion of service of summons arises only in connection with payment of arrears prior to the institution of the suit or arrears which may have accrued up to the date of the service of summons. The question of service of summons has no connection with the payment of current rent which is provided for in the concluding portion of sub-section (1) of section 17 of the Act. On these grounds I hold that the finding of the courts below that current rent was not paid by the appellant according to the provisions of section 17(1) of the Act is correct.

10. The appeal of the tenant will, therefore, fail.

11. I now come to the cross objection filed on behalf of the plaintiffs landlords. The Lower Appellate Court has remanded the suit to the Trial Court allowing an opportunity to the tenant to contest the service of the notice of ejectment and its legality and validity.

12. Mr. Roy Choudhury submitted on behalf of the cross objectors that as the defence against delivery of possession was struck out under section 17(3) of the Act, and as the question of service of the notice or the validity of the notice is co-related to the question of delivery of possession, it was not permissible for the Lower Appellate Court to give such an opportunity to the tenant. Mr. Mukherjee, on the other hand, drew my attention to a case reported in (2) 57 C.W.N 294, D.R Gellatly… v. J.R.W Gannon…Opposite Party., in which it has been held that where a defence of the defendant against ejectment has been struck out under section 14(4) of the West Bengal Premises Rent Control Act, 1950, the tenant will lose the protection which the Rent Control Act of 1950 offered and will be relegated to his position under the general law. That decision was made under the Rent Control Act of 1950, and to some extent the Lower Appellate Court has relied upon that decision. I am, however, of opinion that that decision has got no application to a case where a defence of the tenant against delivery of possession has been struck out under section 17(3) of the West Bengal Premises Tenancy Act of 1956. The reason is this. Mr. Roy Choudhury rightly pointed out that the Rent Control Act of 1950 did not make any provision for service of a notice of ejectment upon a tenant prior to the institution of the suit. The notice was governed by the provisions of section 106 of the Transfer of Property Act. The West Bengal Premises Tenancy Act of 1956 makes a separate provision for service of notice upon the tenant before the filing of an ejectment suit. That provision is contained in sub-section (6) of section 13 of the Act which runs as follows:—

“13(6) Notwithstanding any thing in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section (1) except the grounds mentioned in clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.”

13. Mr. Roy Choudhury contended on behalf of the plaintiffs cross-objectors that the Act having made a separate and independent provision for service of a notice to quit a tenant who incurs the penalty contained in section 17(3) of the Act by reason of non-payment of rent, loses his right to contest the service of the notice or its validity. In my opinion this contention of Mr. Roy Choudhury cannot be accepted. Section 17(3) of the Act which I have already quoted does not say that the whole defence of the defendant will be struck out if he incurs the penalty of non-payment of arrears of rent or of current rent. It says that the defence against delivery of possession will be struck out. The expression “defence against delivery of possession” is a relative expression, because the word “defence” is a counterpart of the word “offence”, which in this particular context means the case of the plaintiff.

14. In an ejectment suit under section 17 of the Act, the plaintiff claims recovery of possession of some particular premises on a ground or grounds referred to in section 13. Where such a suit is contested, the tenant puts forth a defence against the ground or grounds alleged in the plaint. Subsection (3) of section 17 lays down that a tenant who incurs the penalty contained in that sub-section shall not be permitted to press his defence against delivery of possession which should be struck out. This has no reference to the service of notice or to its validity. It may be that the service of a notice to quit is a condition precedent to the institution of a suit for ejectment under section 17 of the Act, but it cannot be said by any stretch of imagination that the notice has any connection, direct or remote, with the several grounds of ejectment enumerated in clauses (a) to (k) of sub-section (1) of section 13 of the Act. That being the position, it will be permissible for a tenant whose defence against delivery of possession has been struck out to contest the suit of the plaintiff landlord on the ground that the notice to quit has not been served upon him, or that the notice is not legal or sufficient. The Trial Judge shut out this opportunity by giving a direction that the suit would be heard ex parte after the application of the plaintiffs under section 17(3) of the Act was allowed. This was an erroneous application of section 17(3) of the Act by the Trial Judge. In my opinion, the decision of the Lower Appellate Court to the contrary is correct.

15. The cross objection put forth on behalf of the plaintiffs cross-objectors will, therefore, fail.

16. In the result, I dismiss both the appeal and the cross-objection and confirm the order passed by the Lower Appellate Court. Parties will bear their own costs both in the appeal and in the cross objection.

17. Leave is asked for on behalf of the plaintiffs cross-objectors to file an appeal under cl. 15 of the Letters Patent, but is refused.

S.K.B