JUDGMENT 1. THIS Rule obtained by the tenant was directed against the order of the judge, 8th Bench of the City Civil court, Calcutta allowing the landlord's application under section 17 (3) of the west Bengal Premises Tenancy Act and striking out the defence against delivery of possession. The petitioner obtained this Rule against that order. The interesting point of law that arises on this application is how far one month's rent paid in advance can go to save a month's default within the meaning of section 17 (1) of the West Bengal Premises Tenancy Act, 1956. The matter came up before a learned single Judge in this Court who having regard to the importance of the matter referred it to this Division Bench. 2. THE facts giving rise to this point of law are simple. The landlord filed this application to strike off the tenant's defence against delivery of possession under section 17 (3) of the Act on the 19th April, 1965. The summons in this suit had been served on the defendant earlier on the 2nd February, 1965. The defendant appeared on the 20th February 1965. On the 3rd March 1965 the defendant-petitioner filed an application under section 17 (1) of the act for permission to deposit rent for january 1965 and that petition was granted. The tenant-petitioner filed his written statement on the 5th April 1965. The landlord-plaintiff-opposite party in this case alleged that the tenant defendant had defaulted in the payment of rents since March 1964. The defendant-tenant alleged that the rent for March 1964 was paid to the plaintiff-landlord opposite party by way of an adjustment for one month's rent received by the plaintiff in advance. The further defence was that rent since April 1964 had been deposited in the office of the Rent Controller. The learned judge of the City Civil Court did not proceed to investigate the alleged default from April 1964. He had passed his order for striking out the defence entirely and mainly on the basis of alleged default of the in payment of the rent for month of March 1964 incidentally it might be mentioned that there is a list of challans and the challans had been filed in court in the suit for showing payments from April 1964 onwards. It is the defendant's case that those challans have been already filed as documents and they cover dates from April 1964 to January 1965. We need not proceed to deal with this question any further having regard to the basis of the City Civil Court's decision on March default only. Therefore, the fact that the actual challans have not been tendered does not make the tenant a defaulter in this case for the month of April 1964 and subsequent months. 3. IN order to determine the question whether there has been a default in respect of the rent of March 1964 it will be appropriate at first to look to the pleadings of both the plaintiff and the defendant in this case on that point. Paragraph 4 of the plaint pleaded the ground of ejectment to be -"the defendant is a defaluter by nonpayment of rent since the month of march 1964. " paragraph 7 of the written statement of the defendant-petitioner tenant pleaded : "the defendant was inducted as a tenant in the suit premises sometime in or about the month of December 1963 at a rental of Rs, 65/-per month on payment of the rent per the current month and also one month's rent in advance. The defendant paid, rent regularly up to the month of February 1964. The rent for the month of March 1964 was also paid to the plaintiff by way of adjustment of the one month's rent in advance received by the plaintiff on mutual consent," the notice to quit in this case was dated the 12th of August 1964 by which the defendant was asked to vacate on the expiry of the last day of September 1964, The suit was filed on or about 3rd October 1964. As already staled the written statement was filed on the 5th April 1965. 4. ACCORDING to the learned Judge of the City Civil Court the defendant neither deposited the rent of March 1964 nor had he filed any application under section 17 (2) of the Act. As already staled the written statement was filed on the 5th April 1965. 4. ACCORDING to the learned Judge of the City Civil Court the defendant neither deposited the rent of March 1964 nor had he filed any application under section 17 (2) of the Act. He overruled the defendant's contention that the petition under section 17 (1) of the Act filed on March 3, 1965 should be treated as an application under section 17 (2) on the ground that the petition had not been filed within one month from the 2nd of February 1965 which was the date of service of summons and on the second ground that this petition did not show that the defendant was raising dispute regarding the amount of the rent. The learned Judge has not in our judgment approached this problem from the correct legal standpoint. He apparently did not notice the law that. already exists on the subject. In the first place the decision of a learned single Judge of this Court which bound him was missed in his judgment. That decision is (1) Sm, Smritimala, alias smritilata Bose v. Sri Tridib Nath Roy, reported in 1960 C. L. J. 120, In that case there was a suit for ejectment on the ground that the tenant had defaulted in payment of rent for the period from October 1954 to May 1955. The question there arose that the tenant had paid rent in advance and that amount was still lying in deposit with the landlord and no adjustment was yet made with the rent of any particular month at the date of the institution of the suit in that case. The Court held that the tenant was entitled to ask for protection from eviction. No doubt it was then under the proviso to section 14 (3) of the West Bengal Premises Rent Control act, 1950 which was different from the present section 17 (1) and (2) of the west Bengal Premises Tenancy Act, 1956, which was have to consider. But the principle laid down by the Court there in that decision is that -in order to succeed in a suit for eviction based upon a default, it is for the landlord to show that the tenant is a defaulter within he meaning of the statute. But the principle laid down by the Court there in that decision is that -in order to succeed in a suit for eviction based upon a default, it is for the landlord to show that the tenant is a defaulter within he meaning of the statute. In that case after reciting the principle the learned Judge sent it back on remand "for the purpose of deciding whether one month's rent had been paid by the tenant to the landlord in advance and whether that amount was still in deposit with the landlord at the date of the institution of the suit". With those observations the Court in that case set aside the judgment and decree passed there. 5. NOW no question of dispute arises in this case before us that there was in fact one month's rent paid in advance at the commencement of the tenancy in the instant case. Incidentally the above Calcutta decision disagreed with a Madras case which has been wrongly quoted there and whose correct refrence is in (2) Re. Navaneethammal reported in A. I. R. 1951 Mad. 343 and also 1950 Madras L. J. Vol. 99, p. 579. There a Division Bench of the madras High Court was considering section 6 (c) of the Madras Buildings (Lease and Rent Control) Act of 1946 and the Court came to the conclusion that to invoke the provisions of that section of the Madras Act the tenant should exercise the option and call upon the landlord in time to make the adjustment and that the mere fact that the landlord had with him an advance rent did not mean that the tenant had not committed default within the meaning of section 7 (2) of the Madras Act. 6. NOW the determination of the point must necessarily depend on the legal incident and character of advance payment of rent in the facts of each case. The leading case on the point in (3) De Nicholls v. Saunders and another reported in L. R. (1870) 5 C. P., p. 589 and the famous observation of Willes. J. laying down the law appears at page 594 of the report as follows : - ". . . . . . . . The leading case on the point in (3) De Nicholls v. Saunders and another reported in L. R. (1870) 5 C. P., p. 589 and the famous observation of Willes. J. laying down the law appears at page 594 of the report as follows : - ". . . . . . . . payment of rent before it is due is not a fulfilment of the obligation imposed by the covenant to pay rent, but is, in fact, an advance to the landlord, with an. agreement that on the day when. the rent becomes due such advance shall be treated as a fulfilment of the obligation to pay the rent. " It was made clear by Willes, J. that when money was paid in advance, an agreement is implied that the landlord would appropriate such advance for the rent becoming due. This implication will of course be dispelled whereby the terms of a lease or tenancy rent was payable every month in advance. But this is not the case here. In Woodfall's well-known work on Landlord and tenant, 24th Edition, page 324 the law is stated in the following terms : - "payment before the day is voluntary and a payment of a sum in gross and no satisfaction at law of the rent. " But the question is that when the rent becomes due the advance must be appropriated to the rent and the payment as pointed out by Willes, J. is a part of the implied agreement. In the 8th Edition of Foa's General Law of landlord and Tenant at page 153 the learned commentators set out the law in these terms : - "with regard to time, payment of rent in advance is good as against the landlord himself, or his executors. Such payment, however, is not a fulfilment of the covenant to pay rent, but an advance to the landlord, with an agreement that on the day when the rent becomes due such advance shall be treated as a fulfilment of the obligation to pay the rent. " in support of that proposition Foa cites the authority in (4) Nash v. Gray, (1861) 2 F. and F. 391 (3) De Nicholls v. Saunders, (1870) L. R. 5 C. P. 589. The principles laid down in the above cases had been followed by this Court in (5) Harimohan Dutt v. C. K. Sen and Co. " in support of that proposition Foa cites the authority in (4) Nash v. Gray, (1861) 2 F. and F. 391 (3) De Nicholls v. Saunders, (1870) L. R. 5 C. P. 589. The principles laid down in the above cases had been followed by this Court in (5) Harimohan Dutt v. C. K. Sen and Co. Ltd., 83 Cal. L. J. 278 at page 282. Sections 4 and 5 of the West bengal Premises Tenancy Act are relevant on the point. Section 4 (2) of the act requires rent to be paid within the time fixed by the contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. It is followed by section 5 which inter alia, provides in sub-clause (b) no person shall, in consideration of the grant, renewal or continuance of a tenancy of any premises, except with the previous permission of the Controller, claim, demand or receive the payment of any sum exceeding one month's rent of such premises as rent in advance. The words used arc "rent in advance" and they appear in section 5 which is a section that imposes restriction on claim, demand, receipt of premium or other consideration. Therefore, this agreement between the landlord and the tenant in tbe present case before us to get 1 month's rent in advance is not prohibited by the West Bengal Premises Tenancy Act nor is it illegal thereunder. 7. IT must therefore follow that it the tenant in this case says that one month's rent admittedly kept with the landlord in advance should be adjusted against the alleged default of March 1964, then he should not be visited with the penalty of his defence against delivery of possession being struck out. Section 17 of the West Bengal Premises tenancy Act, 1956 provides for the case where a tenant can get the benefit of protection against eviction, in a suit instituted by the landlord on any of the grounds mentioned in section 13 of the act, which includes, inter alia, in sub-clause (i) the case of a tenant's default in the payment of rent for two months within a period of twelve months or for two successive periods in. cases where rent is not payable monthly. cases where rent is not payable monthly. In order to earn this protection under section 17 (1) of the Act the tenant has to deposit in court or pay to the landlord an amount at the rate of rent at which it was last paid "for the period for which the tenant may have made default. " The point is when a tenant raises the question that the rent already paid in advance and lying with the landlord should be adjusted against the rent of the month for which the default is alleged, as March 1964 in this case, can it be regarded as "default" within the meaning of section, 17 (1) of the Act. We are of the opinion that at the stage of section 17 (1) such a contention cannot make the tenant a defaulter for the purpose of section 17 (1). That question of default must have to be tried at the suit on proper evidence, documentary and oral, for, in most cases, it will depend on the actual terms of the advance payment - the fact of the advance payment the question of any demand for any adjustment apart from the implied agreement which Willes, J. mentioned in (3) De Nicholls v, Saunders, quoted above. All these questions are part of substantive defence against default. To strike off the defence under section 17 (3) on the ground of non-compliance with section 17 (1) on such a contention of default which must have to await the trial would in cur view be illegal. To do so and to strike out the defence at this stage would for ever bar the defendant from raising the question of default and having it tried out. 8. SECTION 17 (3) of the Act is a penal section in the sense the because of the tenant's failure to deposit or pay the amount mentioned in sub-section (1) or sub-section (2) the Court shall order the defence against delivery of possession to be struck out. Therefore, the right to defend the suit by filing defence therein is taken away by subsection (3 ). To impose such a penalty on the tenant the plaintiff-landlord must bring him clearly within the language of failure to deposit or pay the amount under either sub-section (1) or sub-section (2) of section 17 of the Act. Therefore, the right to defend the suit by filing defence therein is taken away by subsection (3 ). To impose such a penalty on the tenant the plaintiff-landlord must bring him clearly within the language of failure to deposit or pay the amount under either sub-section (1) or sub-section (2) of section 17 of the Act. This Court finds it impossible to hold at this stage under section 17 (1) of the act that on the facts for the month of march 1964 the tenant committed a "default" within the meaning of section 17 (1), and that he should have paid over again for March 1964 for which he asserts his advance, is sufficient to satisfy the payment. In arguments at the Bar a reference was made to section 50 of the Transfer of Property Act which says that rent paid bona fide to a holder even in case of defective title cannot be charged over again against the tenant. That section is not applicable here because there is no question of defect of title. Here it is even a stronger case, namely, rent paid in advance between admitted landlord and admitted tenant and the claim of the tenant is to have the advance rent adjusted for the alleged default of March 1964 and his contention is that payment has been made by such adjustment. The controversy whether there should have been an application under section 17 (2) of the Act can be disposed of very briefly. The crucial expression of that sub-section so far as the point before us is concerned is "any dispute as to the amount of rent payable by the tenant. " There is no dispute about the "amount of rent" payable by the tenant in this case. The amount is plainly and clearly Rs. 65/- per month according to the English calendar. It is admitted by both sides that the landlord opposite party took one month's rent in advance from the petitioner with the definite understanding that he will be at liberty to adjust the same against the rent of any future month. The whole question here is whether that rent in advance already paid with the landlord can be called in aid to save the alleged default under section 17 (1) of the Act. There was no dispute as to the amount of rent payable by the tenant. The whole question here is whether that rent in advance already paid with the landlord can be called in aid to save the alleged default under section 17 (1) of the Act. There was no dispute as to the amount of rent payable by the tenant. The question is whether that amount has been paid by adjustment against the advance rent. That in our view is not a subject-matter of section 17 (2) of the Act in the facts of this case. 9. FOR the landlord opposite party our attention was drawn by Mr. Banerji to the decision of (6) Biswarutth roy v. Annapurna Roy, reported in 65 c. W. N. 149. That decision does not help him in the facts and circumstances of the case. The decision there came to the conclusion that a dispute as to the existence of relationship of landlord and tenant between the parties can be a dispute as to the amount of rent under section 17 (2) of the Act on the ground that a dispute as to the existence of relationship of landlord and tenant does affect the question of the amount of rent payable by he tenant to a particular landlord. No such question of dispute regarding relationship of landlord and. tenant arises here and. no dispute whatever exists about the amount of rent payable by the tenant in the facts and circumstances of the case before us. 10. WE have also considered and borne in mind one other aspect of this interpretation, A rent payable in advance becomes adjustable when the rent becomes due and not before on the principles discussed above. One question arises that in many instances the arrangement is that this advance rent is usually adjusted at the termination of the tenancy. Therefore, in those cases if the adjustment is made then the contructual agreement between the parties is that while it is adjusted the tenant must quit. Therefore, it has been contended on behalf of the landlord that the tenant cannot have the advance rent adjusted in the manner suggested, at the same time continue his statutory protection under section 17 (1) of the Act to resist eviction and continue his tenancy. Therefore, it has been contended on behalf of the landlord that the tenant cannot have the advance rent adjusted in the manner suggested, at the same time continue his statutory protection under section 17 (1) of the Act to resist eviction and continue his tenancy. The argument has an apparent attraction first because in such a case no rent remains paid in advance any more as a term of tenancy to begin with because the advance rent is adjusted against the alleged default. This argument, however, makes a confusion between common law rights and statutory rights under these Rent Acts. Section 17 is a special protection given to the tenant upon certain payments. It is not a common law right. It is a creature of this particular section of this particular Act. If, therefore, the statute gives the protection then the argument that no rent after adjustment remains in the hands of the landlord as an advance rent under the terms of contractual tenancy cannot prevail against the protection which the statute has given. In the second place, rent taken in advance is not necessarily adjustable as at the end or termination of the tenancy by the Act, That depends on the facts of each case. From that point of view the landlord cannot be heard to say that the rent was not adjustable because he himself had given notice terminating the tenancy. Therefore, the contractual tenancy in common law comes to an end with that notice to quit and what coninues thereafter even after the institution of the suit by the landlord for eviction is the statutory tenancy which the statute has created with statutory incidents and obligations to continue the tenancy upon payment in court or otherwise as provided in section 17 of the West Bengal Premises tenancy Act, 1956. For these reasons we must make the Rule absolute and set aside the order of the learned Judge of the city Civil Court under section 17 (3)of the West Bengal Premises Tenancy act. We order and direct that the defence against delivery of possession cannot be struck out and the defence be restored and the court should try out the defence as laid in the written statement at the trial. There will be no order as to costs in this revisional application.