P.N Mookerjee, J.:— This is the tenant-defendant's appeal, arising out of a suit for ejectment. The suit is in respect of a portion of premises No. 17, Chhidam Mudi Lane. It was instituted as far back as September 20, 1957. The relevant notice to quit is alleged to have been served some time towards the end of June, 1957. It is dated June 27, 1957, corresponding to Ashar 12, 1364 B.S, asking the tenant (defendant) to quit and vacate the disputed premises with the expiry of the next Bengali calendar month of Sravana, 1364 B.S The suit tenancy bore a rental of Rs. 451- per month and it was according to the Bengali calendar.

2. In addition to the statement that the defendant's tenancy had been terminated by the above notice to quit, the plaintiffs, for purposes of the decree for ejectment, alleged, inter alia, that the defendant was not entitled to any protection under the Rent Control Law (The West Bengal Premises Tenancy Act, 1956) on account of default in the payment of rent and on account also of the plaintiffs' reasonable requirement of the disputed premises for their personal use and occupation and also for building and rebuilding purposes. The suit was contested by the defendant and, in his written statement, the defendant denied the plaintiffs' case of reasonable requirement either for personal use and occupation or for building and rebuilding and questioned the validity of the service of the notice to quit, upon which depended the termination of his (defendant's) aforesaid tenancy.

3. In the course of the suit, the plaintiffs applied for an order under section 17(3) of the above West Bengal Premises Tenancy Act, 1956. This application was filed on February 15, 1958. Before, however, this application could be heard or disposed of, the suit came up for ex parte hearing on account of the defendant's non-appearance on the fixed peremptory date, after his application for adjournment had been rejected by the trial court. This ex parte decree was passed on May 2, 1958, and, immediately, the defendant applied under Order 9, rule 13 of the Code of Civil Procedure for vacating the said ex parte decree.

4. That application was eventually allowed to be dismissed for non-prosecution on July 24, 1958, as, in the mean time, the defendant had, under legal advice, preferred an appeal to this Court against the aforesaid ex parte decree. The said appeal (F.A No. 247 of 1958) was filed on June 4, 1958, and it was allowed by this Court on May 13, 1959. This Court by its judgment, delivered on the said date, set aside the above ex parte decree and sent back the case for re-hearing according to law by the trial court in the light of the directions, given in its aforesaid judgment. Liberty was expressly given to the plaintiffs to press their application under section 17(3) of the West Bengal Premises Tenancy Act, 1956, which was already on the record, but, which had not been disposed of, as, prior to that, the suit, as stated above, was decreed ex parte by the trial court.

5. The above application under section 17(3) of the West Bengal Premises Tenancy Act, 1956, appears to have been pressed by the plaintiffs and it was taken up for hearing by the trial court on July 9, 1959, on which date it was dismissed by the said court, upon the finding that, at that stage, no relevant default under the aforesaid section had been proved by the plaintiffs. Against this decision of the trial court, a Rule was obtained by the plaintiffs (Civil Rule No. 2293 of 1959) from this Court, which was eventually heard and disposed of by our learned brother Sen, J., who accepted the said revision application, made the Rule absolute and struck out the defendant? defence against ejectment under the aforesaid section 17(3) of the West Bengal Premises Tenancy Act, 1956, upon the view that, at any rate, there was default in the payment of rent for Chaitra 1364 B.S and, accordingly, there was non-compliance with the provisions of section 17(1) of the aforesaid Act.

6. The case, thereafter, proceeded before the learned trial Judge and, on December 23, 1959, the defendant applied to contest the suit “on other grounds except against delivery of possession”. This permission appears to have been granted by the trial court and, as, at that stage, the suit comprised not only the claim for ejectment but also a claim for arrears of rent and mesne profits, this permitted defence appears to refer to the said other claims as the defence against delivery of possession had already been struck out by this Court.

7. On January 5, 1960, however, when the suit ultimately came up for hearing, the plaintiffs applied to withdraw their claim for arrears of rent and mesne profits up to the date of the decree and that application was allowed by the trial court. The suit was thereafter heard and it appears that the defendant was allowed to cross-examine the plaintiffs' witnesses particularly on the question of notice. Whether he was entitled to do so in spite of his defence against delivery of possession having been struck out by this Court, as aforesaid, is not a matter which arises for consideration in this appeal as, in spite of the said cross-examination, the suit was decreed by the trial court on January 13, 1960, against which the present appeal was filed on February 24, 1960, and, as we shall presently see, no defect, either with regard to the notice or as to its service, has been proved by the defendant. The defendant, however, complains that he was not allowed to cross-examine the plaintiffs' witnesses on the latters' (plaintiffs') pleas under the Rent Control Law for getting the decree for ejectment, namely, on the question of his (defendant's) default in payment of rent and on the question of the plaintiffs' alleged reasonable requirement of the disputed premises for their own use and occupation or for building and rebuilding purposes. The defendant complains that, as a result thereof, he has been prejudiced and the decree, passed by the trial court, should be reversed on that ground. The defendant further contends that, in any event, there has been, in this case, no valid service of the notice to quit and, accordingly, the suit must fail upon that preliminary ground. These are the only two questions urged in support of this appeal, and, upon them, it is necessary to pronounce our decision.

8. On the first question, we do not think that the defendant has any legitimate grievance. The defence against delivery of possession was struck out by this Court and, if it means anything, it means at least this, that the defendant's pleas against ejectment, so far, at least, as the Rent Control Law is concerned, must be deemed to have disappeared from the record. At the most, then, the defendant could claim only to cross-examine the plaintiffs' witnesses but, although his complaint is that he was not allowed to cross-examine the plaintiffs' witnesses except on the question of notice, we do not think that the records would bear out or justify that complaint. We find no order of the learned trial Judge, relevant on the point, except perhaps the order, permitting the defendant to defend the suit “on other grounds except against ejectment”, which, however, would not necessarily support the defendant's complaint. There is indeed, nothing on the record to justify the above complaint.

9. Admittedly also, the defendant did not pay rent for the months of Bai-shakh to Sravana, 1364 B.S to the plaintiff-landlords, but deposited the same with the Rent Controller only on September 2, 1957. That deposit would be valid under the law only with regard to the rent of Sravana 1364 B.S (Vide in this connection Ballabhdas Agarwal Private Ltd.…Deft. v. Dalhousie Properties Ltd.…Pltff. . (1) 65 C.W.N 1021). The defendant, then, would obviously be a defaulter for the three months, namely, Baishakh to Ashar, 1364 B.S He would thus clearly be liable to ejectment in view of section 13(1)(i) of the Act, unless he can claim the benefit of protection of section 17. This, however, is not available to him, as on account of the striking out of the defence against delivery of possession by this Court under section 17(3), it must be held that the defendant was guilty of non-compliance with the provisions of the relevant section 17(1) — the instant case not being one under sec. 17(2),—of the Act. Sub-section (4) of section 17 would extend its protection only to tenants who have complied with section 17(1) or section 17(2) of the Act. The defendant would not come within this class. Therefore, he would not be entitled to any protection under section 17(4), irrespective of the proviso which requires four months' default for disentitling the tenants from the benefit of the main part of the said sub-section, where the said main part is otherwise available to him. As we have seen, however, the defendant would not be a tenant, to whom section 17(4), in its main part, would apply, and, therefore, irrespective of the proviso thereto, he would not be entitled to any benefits under the aforesaid section. The net result will be that the defaults, already found, namely, for the three months of Baishakh to Ashar, 1364 B.S, would be sufficient to make him liable to ejectment under section 13(1)(i) of the aforesaid Act. This, of course, will be the position provided the defendant's other contention is found to be unacceptable, namely, as to service of the notice to quit. If there was no proper or valid service of the notice to quit, the defendant's tenancy has not terminated and it will be idle to speak of ejectment of the defendant in such circumstances. We have, therefore, to examine whether the defendant's said plea as to invalidity of the service of the notice to quit is sound.

10. As to this service, the plaintiffs appear to have adopted all the different modes, prescribed therefor under the statute, namely, section 13(6) of the West Bengal Premises Tenancy Act, 1956, read with section 106 (2nd part) of the Transfer of Property Act. The notice appears to have been sent to the defendant by registered post at his two permanent addresses, namely, the disputed premises No. 17 Chhidam Mudi Lane, and his Chandernagore address. The relevant return, however, of the postal peon, that is, so far as the first premises is concerned, appears to be that the registered letter in question was “not claimed”. It may be that this amounts to refusal, in which case it would be good service according to law. But it may also be that nobody was found at the relevant address to claim the above registered letter, which may not be inconsistent with the finding that the defendant was away or absent from the place and there was nobody there who could accept the said letter on his behalf.

11. In this view we would not proceed upon the footing that the service by registered post in the instant case was good service. The plaintiff also appears to have sent the notice by certificate of posting at the above two addresses. If, however, the finding be that the defendant was absent and away from the said house and there was nobody also on his behalf at the spot to receive the said letter, the service by certificate of posting also would not be of any avail to the plaintifis. It is the defendant's case that, at the relevant time, he, with his entire family, was away at Madhupur and the disputed house was under lock and key. The learned trial Judge has, of course, refused to accept this plea of alibi and there is much in the evidence and circumstances before us to support the said finding. Even, however, assuming that the said finding is not correct arid accepting the position that the defendant, with his entire family, was away at Madhupur at the relevant time and the disputed house was under lock and key and there was nobody there to receive the notice on behalf of the defendant, it must be held, in view of the evidence of personal service, which has been given by the plaintiff,— and which we have no reason to disbelieve,— that there way good service of the notice to quit according to law. This will follow from the concluding part of the relevant statutory provision, namely, second part of section 106 of the Transfer of Property Act, which, in effect lays down that, where the tenant is absent or away from the demised premises and there is nobody also on his behalf to receive the notice to quit at the said premises, service by affixing a copy of the said notice at the door (entrance)—obviously a conspicuous part,— thereof would be good service under the law.

12. Taking the most favourable view, then, of the defendant's evidence and accepting also his plea of alibi, on the plaintiffs' evidence of personal service of affixing of the notice to quit on the door of the disputed premises and affixing it in circumstances aforesaid, it must be held that there was good service of the notice to quit. In this view we would hold that there was good and valid service of the notice to quit in the instant case. If, for this, any authority be needed, reference may be made to the recent decision of this Court in Radharani Dasi & Anr.… v. Angur Bala Dasi…., (2) 65 C.W.N 1119.

13. In the premises, the instant suit must be held to have been rightly decreed by the learned trial Judge and this appeal should fail. We would, however, in the circumstances of this case, grant the defendant time till the end of Agrahayan 1369 B.S to quit and vacate the disputed premises on condition that the defendant files, within a week from this date, an undertaking to this court to deliver peaceful and vacant possession of the suit premises to the plaintiffs on or before the said date and also goes on paying or depositing to their (plaintiffs') credit in the court below, month by month regularly according to the Bengali calendar a sum of Rs. 45/- per month on account of mesne profits within the 15th of the next succeeding month according to the same calendar. In default, the decree for ejectment will become executable at once.

14. Before concluding, we deem it necessary to clear up a reported misconception about the decision of this Court, cited above by us and reported in Balldbhdas Agarwal Private Ltd. v. Dalhousie Properties Ltd., 65 C.W.N 1021, as otherwise this might give rise to serious complications to the prejudice of parties. The first head note in the said report appears to be somewhat misleading. In any event, it would have been clearer and more correct if it had stated that a valid tender of rent to the landlord on one occasion would be sufficient not only for the tenant's relative deposit or deposit of the corresponding rent with the Rent Controller but also for any subsequent deposit of rent with him. That, indeed, has been clearly stated at least at two places in the judgment. That may, also, perhaps follow from a careful reading of the second part of the head-note but the first part, by itself, is likely to mislead. We hope and trust that this clarification will be able to prevent unnecessary complications.

15. Subject as aforesaid, this appeal fails and it is dismissed without costs. The decree for costs, passed by the learned trial Judge, will, however, stand.

Amaresh Roy, J.:— I agree.

S.K.B