Sarkar, J.:— This Rule is directed against an order passed by the Munsif, First Additional Court, Alipore, in a suit for ejectment directing the defence against delivery of possession to be struck out under section 17(3) of the West Bengal Premises Tenancy Act, 1956. The suit had been instituted by the plaintiff-opposite party on August 17, 1956, for ejectment of the defendant-petitioner from a shop room at premises No. 32 Chandi Ghosh Road, Tollygunge, which the defendant held at a rent of Rs. 25 per month as a monthly tenant according to English calendar month. The only ground for ejectment was reasonable requirement of the premises for the purpose of building and re-building. Summons was served upon the defendant on August 28, 1956. He appeared on September 13, 1956, and took adjournment to file written statement. After another adjournment, the written statement was filed on November 26, 1956. In it he denied that the plaintiff required the premises for building and re-building.

2. On January 11, 1957, the plaintiff filed an application stating that the defendant had failed TO deposit in court or pay to him any amount whatsoever for rent due for the months of August, September, October and November, 1956, as required by subsection (1) of section 17 of the West Bengal Premises Tenancy Act, 1956, and praying that the defence against delivery of possession might be struck out under sub-section (3; of the said section. The defendant contested the application which was heard on February 12, 1957. Neither party adduced any oral evidence, but the defendant produced certain challans showing that the rents in question had been deposited with the Rent Controller and certain money order receipts which were marked as exhibits.

3. On February 13, 1957, the learned Munsif passed the order against which the Rule is directed. The older runs as follows:

“Apart from the question as to whether deposit before the Rent Controller amounts to payment to the landlord as contemplated under section 17 of Act XII of 1956, the deposit, it appears from the challans marked Ex. A itself is invalid for not having been made within 30 days from the date of service of summons on the defendant. Summons was served on August 28, 1950 and rent for August was deposited on October 9, 1956, clearly beyond the allowed time.

It is therefore ordered that the defendant's defence as against delivery of possession he struck out. To February 21, 1957 for peremtory hearing.”

4. It will be seen from the order that the learned Munsif in disposing the application only considered the question whether the rent for August had been deposited in time with the Rent Controller. In his affidavit, however, the petitioner has stated that this rent had been sent by money order to the plaintiff on September 15, 1956, that the plaintiff had refused the money order and that it came back to him on September 28, 1956. These facts are not denied on behalf of the plaintiff-opposite party. On the other-hand it is admitted in his counter-affidavit that this money order had been refused by him because it had reached him four days after September 15, 1956, within which the rent was to have been paid according to the provision of sub-section (1) of section 17.

5. Mr. Ghose, on behalf of the petitioner, contended that even though this tender of rent by money order had reached the plaintiff after September 15, 1956, nevertheless it was a legal tender and amounted to payment to the plaintiff in terms of sub-section (1) of section 17 because it had been made within one month from the date of service of summons on the defendant which was August 28, 1956, and that the learned Munsif acted with material irregularity in the exercise of his jurisdiction in not considering this aspect of the matter. sub-section (1) of section 17 is in these terms:

“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 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 when any such amount may be 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 at that rate.”

6. Sub-section (3) next provides:

“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.”

7. It will be seen that sub-sec. (1) is divided into two parts. The first part relates to prior defaults and pro vides for payment of the rent in respect of which the tenant may have made default, that is, in respect of which he may have been in arrear at the date of institution of the suit. An amount calculated at the rate of rent at which it was last paid is required to be deposited in court or paid to the landlord in respect of the period for which the tenant may have made de fault, including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made, within one month of the service of summons. Secondly, it provides for payment of current rent and directs that thereafter a sum equivalent to the rent is to be deposited in court or paid to the landlord, month by month, by the 15th of each succeeding month.

8. In the present case the defendant had not made any default for any period prior to the institution of the suit and there was no rent in arrear either at the date of its institution or at the data of service of summons on August 28, 1956. There is no dispute that the rent last paid for the month of July was at the rate of Rs. 25/- per month. But whether there was any previous default or not, after the service of summons the defendant was entitled to deposit in court or pay to the plaintiff, within one month from the date of such service, an amount calculated at the rate of rent last paid for the period subsequent to the institution of the suit up to the end of the month previous to that in which the deposit or payment was required to be made. And since such deposit or payment was to have been made within one month from the date of service of summons, that is, within the date September 28, 1956, sub-sec. (1) required the defendant to pay all dues up to the end of the month of August within the aforesaid date. Since this was the requirement of the section, the defendant was entitled to pay the rent for August within the date September 28, 1956. The rent for August had been admittedly sent to the plaintiff and he had refused it before this date. Hence, the contention of Mr. Ghose that this rent had been legally tendered in proper time under sub-sec. (1) of sec 17 and amounted to payment to the plaintiff within the meaning of that sub-section must be upheld. The learned Munsif should have considered this aspect of the matter.

9. But, though Mr. Ghose succeeds in this contention, that is not sufficient to save the petitioner from the mischief of sub-sec. (3). The application of the plaintiff dated January 11, 1957, was based not only on non-payment of rent for the month of August but also oh non-payment of the rents for September, October and November according to the requirement of sub-sec. (1). These rents had been admittedly deposited with the Rent Controller. It appears from the order of the learned Munsif, set out above, that the question whether a deposit of rent with the Rent Controller amounted to payment to the landlord within the meaning of sub-sec. (???) had been raised before him. But he did not decide the question. He expressed no opinion whatsoever about the rents for these three months. There was at one time a conflict of judicial decisions on the point as to whether deposit of rent with the Rent Controller amounted to payment to the landrord within the meaning of sub-sec. (11 of sec. 17 of the West Bengal Premises Tenancy Act. 1956. (Vide Gokul Bala v. Sarat Chandra (1) 61 C.W.N 890 and Ganesh Chandra v. Mahabir Prosad (2) 61 C.W.N 893) but the conflict has been set at rest by the decision of a Division. Bench in Abdul Majid v. Dr. Samiruddin (3) 62 C.W.N 555, in which it was held that deposit of rent with the Rent Controller was not legal compliance with the provisions of sub-sec. (1) as it did not amount either to payment to the landlord or to deposit in court within the meaning of that sub-section. I am bound by that decision and Mr. Ghose, for the petitioner, did not also contest this legal position.

10. Though the learned Munsif did not decide this question, in view of the admitted facts and the law as settled by the above decision it will be useless to set aside the order of the learned Munsif and send the matter back for rehearing of this question. The second part of sub-sec. (1) applied to the rents due for September, October and November, 1956 and, since these rents had not been paid to the plaintiff or deposited in court, month by month, within the 15th of each, succeeding month, it must be held that there was no legal compliance with the provisions of sub-section (1) of sec. 17 of the West Bengal Premises Tenancy Act, 1956.

11. Mr. Ghose finally contended that the provisions of sub-sections (1) and (3) of sec 17 were not attracted to this case because there had been no service of summons according to law on the defendant. He drew my attention to the writ of summons on the record and pointed out that though an order had been passed in the suit on August 17, 1956, under Order V, rule 5 of the Code of Civil Procedure, directing issue of summons upon the defendant for the purpose of ascertaining whether the suit would be contested, the summons actually issued was not in that form. The writ of summons on the record is in form No. (P) 5A prescribed by this court (in Vernacular) with three alternative clauses corresponding to the purposes for which summons may be directed to be issued and the pointed instruction therein is that when summons has been directed to be issued for a particular purpose, for example, to ascertain whether the suit will be contested, the other alternative clauses should be struck out. In the writ with the record the alternative clauses not required do not appear to have been struck out. Mr. Ghose contended that the summons served was, accordingly, not a proper summons drawn up according to the provisions of Order V, rule 5 of the Code of Civil Procedure and he relied on a recent decision of Banerjee, J. in Madar Khan… v. Kaiser Ali…Opposite Party. (4) 62 C.W.N 718, in which it was held that the provisions of Order V, rule 5 of the Code of Civil Procedure are mandatory and that a summons issued without striking out the alternative, clauses not required is not drawn up according to this rule and is not a legal summons the service of which will attract the provisions of sub-sec. (1) or the mischief of sub-sec. (3) of sec. 17.

12. The defendant did not, however, produce the writ of summons which was actually served upon him and there is thus no evidence that all the alternative clauses were retained therein and that the unnecessary clauses had not been deleted. Apart from that, the facts of the case reported in 62 C.W.N 718 are different from the facts of the present case.

13. In that case, the suit for ejectment had been instituted on the ground of default and the defendant had failed to deposit in court or pay to the plaintiff the amount of rent in default within one month from the date of service of summons. In the case before me, there was no default, as already pointed out, and it was only in connection with the question of payment of rent for August, 1956, that Mr. Ghose advanced the argument that it had been legally tendered to the plaintiff within one month of the date of service of summons without taking any objection to the service thereof and his contention, as stated above, has been accepted.

14. So far as the deposit or payment of the rents for the subsequent months is concerned, it seems to me that the matter had absolutely no connection with the date of service of summons or the defendant, For the application of the second part of sub-section (1), the service of summons or the nature and validity of the summons do not appear to be at all material or relevant when the defendant has already appeared in the suit. A defendant can appear in a suit even without service of summons and his appearance will be accepted by the court if it is in accordance with the provisions of Order V, rule 1 of the Code of Civil Procedure. Here the defendant appeared and his appearance was accepted. He filed a written statement. Having appeared and filing written statement, he was bound to carry out the direction contained in the second part of sub-section (1) of section 17 of the West Bengal Premises Tenancy Act, 1956, if he wanted to save his written statement from being struck out, that is, he was bound to pay to the plaintiff or deposit in court the current rent, month by month, by the 15th of each succeeding month. By neglecting to do so, he incurred the penalty of sub-section (3). In such a case, sub-section (1) must apply and the mischief for non-compliance with its second part must follow.

15. In this view of the matter, I find that the order directing the striking out of the defence was a proper order, though on a different ground from that on which the order was passed by the learned Munsif. There is, therefore, no reason to interfere and the Rule is, accordingly discharged with costs.

S.N.S