2. This is a petition under section 115 of the Code of Civil Procedure against an order striking out the defence under the provisions of sections 17(1) and 17(3) of the West Bengal Premises Tenancy Act. The ejectment suit was decreed by the Trial Court on the 28th February 1961. There was an appeal by the tenant defendant and the appeal was allowed on the 30th November 1961 and the matter was sent back on remand to the Trial Court. Records were received in the Trial Court (after the order of remand) on the 26th January 1962. On 1st February 1962 the tenant applied for permission to deposit the arrears of rent due and the said petition was allowed and the arrears were deposited in court. Thereafter, the plaintiff landlord filed a petition under section 17(3) of the West Bengal Premises Tenancy Act on the 19th July 1962 and the said petition was allowed and defence was directed to be struck out and against that order this petition under section 115 of the Code of Civil Procedure has been moved by the tenant defendant. The Trial Court held that there was no evidence nor assertion that the Trial Court or the Appellate Court actually refused to accept such deposit that are compulsory for the defendant under the statute and the plaintiff was bound to go on depositing the rents from month to month strictly in accordance with the provisions of section 17(1) of the West Bengal Premises Tenancy Act till the disposal of the appeal.

3. Mr. Ganguly refers to the definition cf the word ‘tenant’ in the West Bengal Premises Tenancy Act of 1956, and says that a tenant does not include a person against whom a decree for ejectment has been passed. Undoubtedly the word ‘tenant’ includes ex-tenants for certain purposes; but that reference is to a contractual tenancy. The word ‘tenant’ has been given a special meaning for purposes of the West Bengal Premises Tenancy Act of 1956. It includes all persons against whom notices for ejectment have been served and the contractual tenancy have been determined; but it does not include persons against whom a decree for ejectment has been passed. This is the very specific definition of a ‘tenant’ under the West Bengal Premises Tenancy Act of 1956. If that is so, it is urged from the date of the decree of the Trial Court, the defendant ceased to be a tenant for purposes of the West Bengal Premises Tenancy Act. If he continued in possession, he continued in possession not because of his rights under the West Bengal Premises Tenancy Act but because the court, in which the matter was pending, was inclined to interfere and grant stay of proceedings for execution. He ceased to be a ‘tenant’ during the time the appeal was pending in the Court of Appeal below. He could not, therefore deposit rent under the provisions of section 17 of the West Bengal Premises Tenancy Act during that time. Hence, it is urged there was no default on the part of the tenant in complying with the provisions of section, 17(1) during that period; he was not then the tenant and, therefore, he was not liable. Therefore, it is urged, there was no question of depositing rent from the date of the decree for ejectment by the Trial Court till the date of reversal of the decree of the Trial Court by the Appellate Court i.e, 30th November 1961. On the 30th November 1961 the judgment of the Court of Appeal below was delivered and the decree of the Trial Court ceased to have any effect and the result was that the defendant became a ‘tenant’ and as soon as he again became a tenant, he became liable to deposit from month to month rent. But before such reversal of the decree for ejectment, there was no relationship of ‘landlord’ and ‘tenant’ between the parties under the provisions of West Bengal Premises Tenancy Act, and there was no liability for ‘rent’; but as soon as that decree was reversed the liability under section 17 accrued. On behalf of the landlord Mr. Bhattacharjee has urged that the word ‘suit’ includes appeals. It is indeed true that the word ‘suit’ includes appeals but not always. We have to look to the statute in question to determine whether in the context of the particular statute the word ‘suit’ includes an appeal or not. We may first refer to the definition of the word ‘tenant’. Section 2(h) says, ‘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.” This definition has been introduced in the 1956 Act. In the 1950 Act we had no definition which would exclude a person against whom a decree for eviction had been made by a court of competent jurisdiction. We have no doubt that the court of competent jurisdiction may be the Trial Court, the Appellate Court or even the court in second appeal. There is no qualification. Hence, there is no difficulty so far as the definition of the word ‘tenant’ is concerned. We have next to refer to section 17(1). That sub-section says, “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 from the service of the writ of summons on him, deposit in Court or pay to the land lord 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 and shall there after continue to deposit or pay, month by month, by the 15th of each succeed ing month a sum equivalent to the rent at that rate.” This section refers to “the institution of the suit” and the liability of the tenant continues from the date of the institution of the suit, but does hot say when does it terminate. Does it terminate on the termination of the suit or does it continue thereafter till the matter is finally decided by a Court of first appeal or second appeal or does it even continue till the satisfaction of the cause of action for which the suit was instituted? It is indeed true that a suit may be deemed to be pending till the cause is satisfied and some pro ceeding may be still taken. Refer Clagett's Estate, Fordham v. Clagett, (1) 20 Ch. D. 637; but that has not always been accepted. That depends on various factors. We may refer to the decision of the Supreme Court in the case of Kumar Pashupatinath v. Deba Prasanna Mukherjee (2) reported in 1951 S.C.R 572. For this pur pose Mr. Justice P.N Mookerjee has decided that such liability does not continue at the execution stage [Hi-manshu Bhusan Kar v. Monindra Mo han Saha, (3) 58 C.W.N 221—Ed.].

4. The next question is does it continue while the appeal is pending? If it is intended to continue while the appeal be pending, it would continue whether the suit is decreed or the suit is dismissed. If the suit is decreed, there is no relationship of landlord and tenant because of section 2(h) which says that the defendant would cease-to be a tenant on the passing of a decree for ejectment. If that is so, there is thereafter no liability under section 17. The liability is not a liability of the defendant but is a liability of the tenant. If we in this context interpret the word ‘suit’ to include an appeal, then there would be difficulty and contradiction in harmonious construction of the statute so far as the tenants, against whom suits have been decreed. Such defendant appellants not being ‘tenants’, would not come under the mischief of section 17 because of the definition in section 2(h). Another difficulty that I find is that from the time the judgment and decree have been signed either allowing the suit or dismissing it, the tenant would be liable to deposit in Court at a time when no proceedings would be pending in the Trial Court and not yet instituted in the Appeal Court. There are various other difficulties. But it is sufficient to say that if a suit includes an appeal for purposes of section 17, then there would be, in cases where the suit is decreed, contradiction between section 17 and section 2(h). In that case a person, who is not a tenant within the meaning of section 2(h), would still be compelled to act as if he were a ‘tenant’ for purposes of section 17. There is no reason for such extending the meaning of the word ‘suit’ in the circumstances of this statute for the reason that it will lead to confusion and would affect harmonious construction of the statute. In my opinion, therefore, ‘suit’ in section 17 does not include an appeal. In that view of the matter, the defendant having ceased to be a tenant from the date of the decree of the Trial Court, there can be no question of his liability to deposit rent during the time the appeal was pending in the Court of Appeal below or, in other words, from the 28th February, 1961 till the 30th November, 1961.

5. Mr. Bhattacharjee next urges that even if he was not a tenant during that period, he became a tenant as soon as the judgment of the Trial Court was reversed and he should have deposited the rent for the month of December, 1961 within 15th January, 1962 in the Trial Court and as he has not deposited that rent, the defence must be struck out and the Court rightly struck out the defence. Order 7, Rule 9 of the Code refers to the admission of a plaint in a court of competent jurisdiction. Whenever a plaint is presented in a Court, a suit is not necessarily ‘instituted’. If the Court has no competence to entertain and admit the plaint, there is no suit. The only thing that the Court can do at that stage is to return the plaint to be presented to the proper court. All that happened between the period of filing and returning the plaint is that a plaint was filed and the plaint was not admitted; but a suit would not be considered to have been instituted. If the plaint is admitted, the suit is instituted but, if, on the other hand, the plaint is returned, it will be deemed as if no suit was instituted in the court concerned. Would the tenant be liable to deposit rent under section 17 during the time while the plaint was filed but not admitted? I am afraid, not—for the reason that section 17 cannot be interpreted in one way for the cases where the court decides that the court would admit the plaint and in another way when the court decides that it would be returned. If we accept that a suit is instituted on the date the plaint is presented and finally it is found that the court was not competent, then the presentation would be no “institution in a competent Court” and all that the court did during that time would be considered to be non est and if there was no suit, the tenant would have no liability as under section 17. Section 17, therefore, refers to institution in a court of competent jurisdiction and not presentation of the plaint or, in other words, it refers the date on which the plaint is admitted as under Or. 7, Rule 9 in the Register of Civil Suits. Therefore, I must interpret the words “on a suit or a proceeding being instituted” as “on a suit being admitted” as under Or. 7, Rule 9 of the Code; the suit continues till the decree is passed and the judgment and decree are signed under Or. 20, Rule 9, of the Code of Civil Procedure. I am of opinion that on the date the judgment and decree are signed the suit terminates for purposes of section 17.

6. If an appeal is filed by either of the parties, the appeal again is to be admitted under Order 41, Rule 9, of the Code. It may be that the appeal is not maintainable and the memorandum of appeal may be returned. But if it is not returned, the appeal is to be admitted and registered and the memorandum of appeal shall be registered in a book to be kept for that purpose by the Appellate Court. The court will thereafter consider under Or. 41, Rule 11 whether the court will dismiss the appeal or issue the usual notices. If the court is inclined to set aside the judgment of the court below and send the matter back to the Trial Court, it can pass an order under Or. 41, Rule 23 of the Code of Civil Procedure. The Appeal Court in that case will give direction to re-admit the suit under its original number under the register of civil suits and proceed to determine the suit. There is no provision under Order 41, of the Code of Civil Procedure or anywhere else what direction the Appeal Court is expected to give in a case where there is a remand ex debito justitiae i.e, under section 151 of the Code of Civil Procedure. Under the former Code there was a prohibition under section 564 of that Code against passing orders of remand except as provided in the former Code, namely, except under the corresponding provision of Order 41, Rule 23 and Order 41, Rule 25 of the present Code. But when the new Code came into effect in 1908, there was a doubt as to whether the Court had power to remand ex debito justitise and it has been decided that the Appeal Court has such powers. So far as the court is concerned, we can refer to the case of (4) Ghuznavi v. The Allahabad Bank Ltd., reported in I.L.R 44 Calcutta 929, decided by a Full Bench. But there is no corresponding procedure.

7. The question then arises, if an order for remand is passed under section 151 of the Code of Civil Procedure, what will the Trial Court do? Will it be registered in its original number or will it be registered as a different suit in the Trial Court? It may be, as soon as the judgment and order of the Appeal Court are passed, there is the order setting aside the judgment and, therefore, there is an order for re-opening the suit. But it is an order to reopen the suit and to proceed with the suit. Unless the suit is re-opened or re-admitted by the Trial Court and unless the Trial Court takes seisin of the matter by re-admission of the suit in its register of civil suits either in its original number or in new number, there is no re-admission of the suit. There is by the Appellate Court merely an order for re-admission of the suit which is yet to be given effect to by the Trial Court and as long as the Trial Court does not give effect to that order for re-opening the suit, the suit is not re-admitted. The suit till then is liable to be re-opened and liable to be re-admitted and as soon as the Trial Court takes seisin of the matter and re-opens the suit, it is re-admitted and thereafter it “continues”. The practice is now well settled beyond doubt that whenever a suit is re-admitted because of the direction of the Appeal Court, it must be re-admitted in its original number or in other words, even though the procedure laid down in Order 41, Rule 23 is not directed by the Code to apply to the cases of remand under section 151 of the Code, that has become the practice, because there is no other procedure supported by the Code. I am, therefore, of opinion that the suit is instituted when the plaint is admitted by a Court of competent jurisdiction which continues till the date of the decree.

8. When the Appeal Court sets aside the decree, the Appeal Court directs a re-opening or re-admission of the suit and when the Trial Court readmits the suit, the suit again begins to continue in its original number. I am, therefore, of opinion that the suit began to “continue” for purposes of section 17 with effect from the date it was re-admitted in the Trial Court and that is on the 26th January, 1962. If the suit was re-admitted and began to continue with effect from that date, evidently there is no liability for deposit of rent under section 17 from the date of the decree of the Trial Court, namely, 28th February, 1961 till the date of re-admission in the Trial Court on the 26th January, 1962. As subsequent rents have been deposited in the court below in accordance with the provision of section 17, there is no question of any further default.

9. The result, therefore, is that the judgment and order of the court below are set aside, the defence is restored and the learned Munsif is directed to hear the suit as early as possible.

10. In the circumstances of this case, I make no order as to costs.

11. Let the records be sent down as early as possible.

S.K.B