P. N. Sanyal v. Hara Prasad Sarkar — 1977 DIGILAW 214 (CAL)

JUDGMENT The judgment of the Court was as follows :–– A common question of law of some importance has arisen in all these Rules and, as such, the Rules were heard together and the learned Advocates representing the parties had addressed the court on the said common question of law. 2. C.R. 2292 of 1976 was obtained by the tenant-defendant in a suit for ejectment who had applied to the court under on S. 17(2) of the West Bengal Premises Tenancy Act, 1956. The court has decided the dispute raised by the tenant by holding that a sum Rs. 8,980/- was to be deposited by the tenant (petitioner). The petitioner had contended before the court that though he has invoked the provision of S. 17 (2) of the Act raising a dispute he was entitled to instalments under the provisions of sub-clause (b) of S. 17 (2A) of the Act. The court held that the aforesaid provision is not available to him. The prayer for instalments accordingly, stood disallowed and the petitioner was directed to deposit the above sum within two months from date. 3. The other connected Rule is C.R. 3039 of 1976 which was obtained by the landlords in the same suit, who challenged the legality of the same order as aforesaid on the ground that the tenant had admitted some arrears of rent while making his application under S. 17 (2) of the Act, but the said admitted rent was not deposited along with the application under S. 17(2) and, as such, the condition imposed by S. 17(2) was not fulfilled so that the application of the tenant should have been thrown out in limine and the order passed by the court was patently illegal and should be set aside. 4. In altogether a different case in C.R. 3175 of 1976 the Rule was obtained by a tenant in suit for ejectment by the landlord, being aggrieved by the order of the court rejecting his petition under S. 17(2) read with S. 17(2A) of the West Bengal Premises Tenancy Act. 1956. 4. In altogether a different case in C.R. 3175 of 1976 the Rule was obtained by a tenant in suit for ejectment by the landlord, being aggrieved by the order of the court rejecting his petition under S. 17(2) read with S. 17(2A) of the West Bengal Premises Tenancy Act. 1956. The court held that the application which was a belated one was not accompanied by deposit of the admitted amount of arrears of rent, as contemplated in S. 17(2) of the Act within time and in absence of such deposit the application was not maintainable though the time limit for the application was extended and the delay was condoned under S. 5 of the Limitation Act. 5. In another Rule, viz. C.R. 128 of 1976, a tenant under the West Bengal Premises Tenancy Act, 1956, has challenged the legality of the order passed by the Munsif on a landlord's application under S. 17(3) of the West Bengal Premises Tenancy Act which was allowed by the court below. The point raised in this Rule was that the rent for September and October, 1971, namely, post-suit current rent had not been deposited by the tenant but the petitioner tenant claims that he is entitled to have that rent included in terms of the provision under S. 17(2A) clause (b) of the West Bengal Premises Tenancy Act, 1956. 6. All these Rules were opposed. I will dispose of all the Rules on merits after discussing the common question of law which is involved in these Rules regarding interpretation of S. 17 of the West Bengal Premises Tenancy Act, 1956. In particular, I am to consider whether deposit of admitted rent is a condition precedent which is to be fulfilled by the tenant in pursuit of his application under S 17(2) of the West Bengal Premises Tenancy Act, 1956. The other question of law involved in these Rules is regarding interpretation of S. 17(2A) clause (b) and proviso thereto. I will first of all consider the latter point. 7. It is contended on the side of the tenant in all these Rules that the provision of S. 17(2A) clause (b) applies to the case of tenants who had invoked the provision of Section 17 (2) of the Act. I will first of all consider the latter point. 7. It is contended on the side of the tenant in all these Rules that the provision of S. 17(2A) clause (b) applies to the case of tenants who had invoked the provision of Section 17 (2) of the Act. On behalf of the landlord, it had been contended that clause (b) of sub-s. (2A) can be invoked only by a tenant under S. 17 (1) and it has no application to the case of tenants raising a dispute under S. 17 (2) of the Act. For a consideration of the above clause, the entire structure of the statute requires to be considered. Section 17(1) makes it obligatory on a tenant to deposit in court within one month of service of the writ of summons to deposit in Court or with the Controller 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 upto 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 8.1/3% p.a. from the date when any such amount was payable up to the date of deposit. The second part of S. 17(1) is that the tenant 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. Section 17(2) provides that a tenant may raise a dispute as to the amount of rent payable by him and in such a case he is to deposit within the time specified in sub-sec. (1) of S. 17, viz., within 30 days of service of summons in court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. (1) of S. 17, viz., within 30 days of service of summons in court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such an application, the court shall, in terms of clause (a), having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall within one month of the date of such preliminary order deposit in court or pay to the landlord the amount so specified in the preliminary order. Clause (b) appearing thereafter provides for making a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order. Thereafter, S. (2A) of S. 17 appears in the following terms :–– "(2A). Thereafter, S. (2A) of S. 17 appears in the following terms :–– "(2A). Notwithstanding anything contained in sub-section (1) or sub-section (2), on the application of the tenant, the Court may, by order,–– (a) extend the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein; (b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under sub-section (1) on account of default in the payment on rent, permit the tenant to deposit or pay such sum in such instalments and by such dates as the Court may fix; Provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this subsection is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when such amount was payable up to the date of such order." 8. On an analysis of the above provisions of S. 17, it appears that the Legislature contemplates deposit by the tenant who had made default of the amount to be calculated in the manner provided in S. 17(1). It also provides in S. 17(1) for deposit of the current rent in the manner so provided. Section 17(2) also contemplates deposit of amount as specified in the preliminary order and the final order in case of a dispute being raised by the tenant as to the amount of rent payable by him. Section 17(2A) is enacted with the opening words "Notwithstanding anything contained in sub-section (1) or subsection (2)". In clause (3) on the application of the tenant, the court may extend the time specified in sub-sec. (1) or sub-s. (2) for the deposit or payment of any amount referred to therein. In exercises of its powers thereunder, the Court may extend the time for deposit of the arrears of rent under S. 17(1). A Court can also extend the time of deposit of monthly rent contemplated in S. 17(1). (1) or sub-s. (2) for the deposit or payment of any amount referred to therein. In exercises of its powers thereunder, the Court may extend the time for deposit of the arrears of rent under S. 17(1). A Court can also extend the time of deposit of monthly rent contemplated in S. 17(1). Then I consider the provision of Clause (b) which is to the effect that having regard to the circumstances of the tenant as also of the landlord the total sum inclusive of interest required to be deposited or paid under sub-s. (1) on account of default in payment of rent the Court may permit the tenant to deposit or pay such sum in such instalment and by such date as the Court may fix. The power of granting the instalments to the tenant is, therefore, confined to the cases of deposit contemplated under sub-s. (1). There is specific omission of sub-s. (2) in clause (b). The proviso thereunder is a proviso which is unmistakable referable to clause (b) alone. The proviso does not refer to clause (a) of sub-s. (2A). The proviso is to the effect that when payment is permitted by instalments, such sums shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-s. (1) from the date when such amount was payable upto the date of such order. This proviso, in clear terms, is a repetition of the same provision appearing in S. 17(1). The proviso to clause (b) as above is only to the effect that the amount is to be calculated in the manner specified in S. 17(1). 9. It appears, therefore, that when a tenant is under the obligation to deposit the defaulted amount under S. 17(1) within 30 days of service of summons the said time can be extended by the Court on application of the tenant under clause (a) and similarly under clause (b) the Court can grant instalments for such deposit as contemplated in S. 17(1) and while granting instalments in respect of such deposit under S. 17(1), the Court is to consider the circumstances of the tenant and also of the landlord. From the language used in the Statute, there is no escape from the conclusion that the benefit of clause (b) is confined to those persons who are making the deposit under S. 17(1) and it excludes the benefit thereunder to the tenants who have been directed to make the deposit after obtaining an order of the Court under S. 17(2) of the Act. I had occasion to interpret clause (b) of S. 17(2A) and the proviso thereunder in another Civil Rule being C.R. No. 2543 of 1975 and I had given my reasons for bolding that clause (b) of sub-sec. (2A) is 17 remedy available to the tenants under S. 17(1) of the Act and that the tenant who have invoked the provisions of S. 17(2) of the Act are not entitled to the said benefit. 10. On behalf of the tenant, it has been contended that this has the effect of treating those tenants who have raised, the dispute on these advantageous position inasmuch as they are deprived of the benefit of clause (b) of sub-s. (2A) and the Legislature could never have intended to do so. The argument is that if the tenants making the deposit under S. 17(1) of the Act are entitled to the benefit of clause (b) as above, there is no reason why the tenants who have raised the dispute under S. 17(2) would be deprived of the said benefit. In this connection, my attention has been drawn to Salmond on Jurisprudence, by Fitzgerald, 12th Edition, at page 25. Interpretation is of two kinds, which may be distinguished, as literal and functional. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the litera legis. Free interpretation, on the other hand, is that which departs from the letter of the law, and seeks elsewhere for some other and more satisfactory evidence of the true intention of the Legislature. It is urged that the duty of the judicature is to discover and to act upon the true intention of the legislature. The essence of the law lies in its spirit and not in its letter. I am asked to invoke this principle and to interpret the statute in that manner. 11. On the other hand, my attention is drawn to 'Craies on Statute Law', 5th Edition page 68. The essence of the law lies in its spirit and not in its letter. I am asked to invoke this principle and to interpret the statute in that manner. 11. On the other hand, my attention is drawn to 'Craies on Statute Law', 5th Edition page 68. It has been observed as follows :–– "The authorities on this subject are numerous and unanimous. "No case can be found to authorize any Court to alter a word so as to produce a casus omissus." said Lord Halsbury in Mersey Docks V. Henderson. In Crawford v. Spooner, the Judicial Committee said "We cannot aid the Legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there." 12. The Supreme Court had occasion to express itself on this point and has observed as follows while considering whether the word 'decree' used in the Statute included 'orders' under the West Bengal Premises Rent Control Act of 1948 : "It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that this Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner. 6 Moo. P. C 1 (H) aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up the deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Dehra Dun-Mussoorie Electric' Tramway Co Ltd., AIR 1933 PC 63, for others than the Courts to remedy the defect." ( AIR 1953 SC 148 , Nalinakha v. Shyam Sunder, paragraph 9, page 152). 13. On the above principles, I am to consider whether omission of sub-s. (2) in clause (b) sub-s. (2A) can be considered to be a mistake. I am unable to read clause (b) as above, that the Legislature intended to include sub-s. (2) along with sub-s. (1). We should look to the language used and if the Legislature has omitted to include sub-s. (2) in clause (b) as above, this Court cannot make up that omission by adding those words or reading them in clause (b). I am unable to read clause (b) as above, that the Legislature intended to include sub-s. (2) along with sub-s. (1). We should look to the language used and if the Legislature has omitted to include sub-s. (2) in clause (b) as above, this Court cannot make up that omission by adding those words or reading them in clause (b). It must be held that the Legislature had intended the omission. 14. There is one branch of argument in this respect. While interpreting clause (b) as above, I am asked to hold that the deposits contemplated under sub-s. (1) also include the deposits contemplated under sub-s. (2). This is clearly against the language of the Statute. Sub-section (2) contemplates deposit, viz., deposit of the admitted amount, deposited under the preliminary order, deposit under the final order. These deposits are specifically contemplated under sub-s. (2) of S. 17. It cannot, therefore, be said that all the deposits must necessarily be under S. 17(1) so as to embrace the deposits under sub-s. (2) by use of the word "sub-section (1)" in clause (b). It is true that tenants making deposits under S. 17(1) enjoy the benefit of instalments under clause (b) and, according to the interpretation which I am going to make, the tenants raising a dispute under sub-s. (2) and obtaining an order of the Court in this respect are disentitled to the benefit thereunder. This discrimination is, however, uncalled for and cannot be said to be rational. But that is the inevitable result of the language used by the Legislature. The tenants raising a dispute enjoys several benefits. He is not to deposit the rent at the rate last paid or interest at statutory rate under S. 17(1). He has only to deposit the admitted rent. After determination of the rent, the tenant gets the benefit of time for deposit of the amount determined by the Court. That time again can be extended by the Court on application of the tenant. This is a type of remedy which has been provided for in respect of the tenants who raise a dispute under S. 17(2). Those tenants therefore enjoy certain benefits and are relieved of the liability to deposit the arrears of rent at the rate last paid and the statutory interest thereon. This is a type of remedy which has been provided for in respect of the tenants who raise a dispute under S. 17(2). Those tenants therefore enjoy certain benefits and are relieved of the liability to deposit the arrears of rent at the rate last paid and the statutory interest thereon. The deposits under S. 17(2) are different in amount and character from the deposits under S. 17(1) of the Act. In this connection language used in S. 17 sub-s. 28 in its latter part is worthy of noting. There also the question of application for instalment is related to deposit under S. 17(1) alone. I am, therefore, unable to hold that the intention of the Legislature was to confer the benefit of clause (b) aforesaid upon all the tenants including those who are dealt with under sub S. (2) of the Act. 15. My attention has been drawn to a decision of this Court reported in (1) B.B. Bhattacharjee v. T.L. Chowdhury, 80 CWN 680 where it his been held that the tenant was entitled to the relief of paying the amount of rent by instalments under S. 17(2A) of the Act. It will appear from the judgment that the provision of clause (b) of sub-s. 2(A) has not been considered on analysis of the said clause by the learned Judge. Undoubtedly, a tenant raising a dispute as to the amount of rent can invoke the provision of sub-s. 2(A) of the Act but it is the benefit of clause (a) thereunder which can be claimed. With regard the benefit of clause (b), the judgment has not proceeded on a consideration of the provision thereof. What the learned Judge has observed in paragraph 4 is that the tenant who has raised the dispute was entitled under the law to an appropriate order in the facts and circumstances as provided in clause (b) of sub-s. (2A). The provision of clause (b), however, had not been considered in the judgment. In the absence of an analysis of the aforesaid provision, the judgment cannot be said to have thrown any light on the subject for guidance of this Court. As no reasons have been given in paragraph 4 of the judgment, mere observation in this respect is of no assistance to this Court. 16. In the absence of an analysis of the aforesaid provision, the judgment cannot be said to have thrown any light on the subject for guidance of this Court. As no reasons have been given in paragraph 4 of the judgment, mere observation in this respect is of no assistance to this Court. 16. On an analysis of the various provisions of S. 17, I have come to the conclusion that clause (b) of sub-s. 2(A) cannot be invoked by a tenant who had obtained an order under sub-s. (2). The provision for instalments, is limited to the cases where the deposit is under S. 17(1). In such cases, the court can grant instalments in respect of the amount payable under S. 17(1). The proviso to clause (b) only repeats the provision of S. 17(1) by adding that when instalments are permitted, the Court will calculate an amount up to the date of making of the order and that is exactly what has already been provided under S. 17(1) of the Act. This cannot thus include a deposit under S. 17(2). 17. There is another important point of law raised in some of the Rules. The point is as to whether the deposit of admitted rent under S. 17(2) is a condition for inviting the Court to determine the amount of rent by way of an application thereunder. There are several decisions of this Court on this point which have been placed before me. On behalf of the landlord, it has been contended that this deposit is a condition for inviting the Court to determine the rent payable. A Bench decision of this Court reported in (2) G.T. Kamdar v. S. Jhunjhunwalla, 75 CWN at page 372, is relied upon for this proposition. In paragraph 3 of the reported case, it was discussed thus :–– "Section 17(2) of the West Bengal Premises Tenancy Act as we read it contains certain requirements, namely, (1) that there must be a dispute raised as to the amount of rent payable, (2) that the tenant must for the purpose of the said Section make deposit of all the admitted arrears within the statutory period (3) and that is very important that the said deposit, if any, must be made along with an application praying for determination of the rent payable." 18. For this view, two unreported decisions have been relied upon. For this view, two unreported decisions have been relied upon. One of such decisions is (3) Adalat Singh v. T.P. Basu decided by P.N. Mookerjee and A.C. Sen, JJ. An earlier decision was also referred to namely, (4) Sm. Parameswari Debi & Ors. v. Nandalal Sharaf & Ors, decided by another Division Bench consisting of A.C. Sen and A.N. Chakravarty, JJ. A reference has been made to another Bench decision of this Court reported in (5) Hindusthan Industrial Co. v. Chandi Prasad More. 79 CWN 1017 whore the said Bench held that an application under S. 17(2) of the Act must have three elements; (a) there must be a dispute raised as to the amount of rent payable; (b) the tenant must make deposit of all admitted arrears of rent within the statutory period; (c) the said deposit must be made along with an application. This point came up for decision before me in another case reported in (6) Basab Basu v. Bhupati Ranjan Sen 80 CWN at page 350 where I had occasion to refer to a decision reported in (7) Maliram Agarwalla v. Bhudarmal Agarwalla, CWN at page 901 and I had distinguished the observations made therein in my judgment. However, from these decisions, it can clearly be construed that where the tenant has admitted any amount of rent while applying under S. 17(2) of the Act, it is incumbent upon him to deposit the admitted amount within the statutory period of 30 days, as provided under S. 17(1) of the Act, or within any extended period thereof. If there is no such deposit within the statutory period, an application would not be entertained. This is the principle of law which is more or less established by several decisions of this Court. 19. Having expressed myself on the two important points of law raised in these Rules with regard to interpretation of provisions of S. 17 of the West Bengal Premises Tenancy Act 1956, I will proceed to discuss the particular facts of each of these Rules and the fate thereof. 20. With regard to C. R. 2922 of 1976, the tenant-defendant obtained this Rule, as I have already mentioned. In the impugned order, the learned Judge calculated the amount of total arrears on the petitioner’s application under S. 17(2) of the Act. 20. With regard to C. R. 2922 of 1976, the tenant-defendant obtained this Rule, as I have already mentioned. In the impugned order, the learned Judge calculated the amount of total arrears on the petitioner’s application under S. 17(2) of the Act. I have already held that clause (b) of sub-s. (2A) does not apply to his case and, as such, he was not entitled to the instalments as claimed. Mr. Tagore, learned Advocate on behalf of the petitioner, has contended that the amount calculated by the learned Munsif below suffers from some error and that some challans had not been taken into account. Of course, he is not in a position to place all these materials before me and, as such, some directions in this respect will be given. 21. I, therefore, direct that the learned court below will reconsider the question of amount of arrears and check up whether the calculation has been correctly made. If any payment under any challan has been omitted from that calculation, he will take that challan into account and then after considering the same he will fix a date for payment of the amount in his discretion. It will be open to the court below to take into consideration whatever materials are relevant for the purpose without prejudice to the rights of any of the parties. 22. Subject to this, the Rule is discharged. There will be no order as to costs. 23. Another connected Rule, viz. C. R. 3039 of 1976 is in respect of the same order and the Rule was obtained by the landlord. It is contended before me that in view of the principle I have just now laid down that the tenant has failed to deposit the admitted arrears, the application under S. 17(2) should have been dismissed by the trial court. I am unable to accept this contention. The application under S. 17(2) does not disclose any admission on the part of the tenant. The tenant has not admitted any part of the rent. It is true that the dispute was with regard to the rate of rent. Section 17(2) is in clear terms, viz., the obligation of the tenant to deposit thereunder was of the admitted amount of rent. In the absence of any admission made by the tenant, there is no question of deposit. It is true that the dispute was with regard to the rate of rent. Section 17(2) is in clear terms, viz., the obligation of the tenant to deposit thereunder was of the admitted amount of rent. In the absence of any admission made by the tenant, there is no question of deposit. Another contention has been raised in this connection, namely, that the dispute that was raised was not a bona fide dispute but it was a sham dispute and, as such, it was no dispute at all and the application ought to have been thrown out by the court below in limine. In support of this, some decisions have been cited before me. Reliance was sought to be placed on a decision reported in (8) ILR 1968(1) Cal. 170 Nazrul Islam v. Manna Singh where it has been hold that the dispute raised under sub-s. (2) of S. 17 must be bona fide and not sham and purposeful one. A sham dispute merely to gain time is no dispute at all. It is significant that in the case cited before me, the Court had held that the dispute was not a bona fide dispute but it was a sham dispute merely to gain time. In the instant case, the order passed by the Court does not anywhere indicate that it was held to be sham dispute and not a bona fide one. The learned Court has decided the dispute and determined the amount of arrears. In the absence of any such finding of the Court this Court in revision is not competent to enter into that question. I am unable to say that this is a sham dispute and not a bona fide one and, as such the application under S. 17(2) ought to have been thrown out in limine. This Rule, therefore, cannot succeed and is discharged. There will be no order as to costs. 24. Coming to the facts of C. R. 3175 of 1976, the tenant-petitioner has obtained this Rule. The application under S. 17(2) read with subs. (2A) of the Act in that case was not within the specified period. The tenant made the application beyond time and invoked the aid of S. 5 of the Limitation Act in mitigation of the period of limitation. The application under S. 17(2) read with subs. (2A) of the Act in that case was not within the specified period. The tenant made the application beyond time and invoked the aid of S. 5 of the Limitation Act in mitigation of the period of limitation. The learned Court condoned the delay and allowed the application under S. 5 of the Limitation Act and held that the delay in presenting the application has been condoned. But it appears from the impugned order that the tenant was admittedly in arrear and had defaulted in payment of rent, the admitted arrear being Rs. 1,451.25 P. This admitted arrears of rent had not been deposited within the specified time, namely, within 30 days of service of summons. This deposit within 30 days is mandatory. The tenant did not make the deposit in terms of S. 17(2) of the Act nor did he apply for extension of time for deposit of the said amount under S. 17(2A) clause (a) of the Act without such deposit within the statutory period or within such extended period on application, the petition under S. 17(2) was not maintainable and the learned Judge accordingly took the correct view in holding so. He has rejected the petition of the tenant on the above ground and there is no illegality in the said order. 25. The Rule, accordingly, fails and is discharged. Then will be no order as to costs. 26. The last Rule is C.R. 128 of 1976 where the point has arisen in the following manner : The tenant raised the dispute under S. 17(2) and it will appear from the application under S. 17(2) that the scope of the dispute was limited to the arrears of rent and this was determined by the Court and orders were made thereon on 31st May, 1972. It appears that the petitioner-tenant has defaulted in payment of monthly rent falling due subsequent to the filing of the suit. He has failed to pay the rent for the months of September and October, 1971. This is post-suit default. On such failure, the landlord applied under S. 17(3) and that application was allowed. Mr. Roychowdhury, learned Advocate on behalf of the petitioner, contends that the provision of S. 17(2A) clause (b) and proviso thereunder would come to his assistance. He has failed to pay the rent for the months of September and October, 1971. This is post-suit default. On such failure, the landlord applied under S. 17(3) and that application was allowed. Mr. Roychowdhury, learned Advocate on behalf of the petitioner, contends that the provision of S. 17(2A) clause (b) and proviso thereunder would come to his assistance. The learned Court while making the order under S. 17(2) ought to have taken into account those arrears in calculating the amount to be deposited by the tenant. Since I have held that S. 17(2A) clause (b) has no application to the petitioner, he cannot get the benefit thereunder or of the proviso to clause (b) Section 17(1) makes it is obligatory on the tenant to deposit the arrears of rent in the manner provided thereunder and also to go on depositing the subsequent rent month by month. The obligation to deposit the current rent under S. 17(1) is not suspended merely because the tenant has raised a dispute as to the arrears of relit. The tenant's liability to deposit the current rent at the rate last paid month by month by the 15th of each succeeding month remains. The dispute is regarding the arrears of rent prior to the institution of the suit. The court was invited on such application to determine the rent payable. He has not discharged that obligation which is statutory one. The current monthly rent did not fall within the ambit of such determination. The Court making the order under S. 17(2) has no obligation to include the subsequent rent which was not the subject matter of dispute specifically raised on an application by a party. The order allowing the application under S. 17(3) cannot be said to be patently illegal as the petitioner has failed to pay the rent for September and October, 1971 within the prescribed period. 27. This Rule, accordingly, fails and is discharged. There will be no order as to costs.