Judgment 1. This Rule is directed against order No. 47 dated 30.3.77, whereby the learned Munsif allowed the application under S.17(3) of the West Bengal. Premises Tenancy Act while rejecting the defendant's application under S. 151 of the Code of Civil Procedure. 2. The relevant facts are as follows :- The plaintiff instituted the connected suit in 1974 for recovery of possession and the defendant's applications under S.17(2) and 17(2A) of the Act were disposed of on 18.8.76. It was held that the plaintiff and not her husband P.K. Mitra proforma defendant, was the landlord of the defendant. The learned Munsif also found that the sum of Rs. 5,865/- inclusive of interest was in arrears and directed the defendant to deposit the amount by monthly instalments of Rs.200/- each from September 1976. It appears that the rent for the premises for August 1976, which was although deposited earlier in the name of the husband of the plaintiff P.K. Mitra, was deposited on 22.9.76. Thereafter, it appears that the defendant deposited rent for this month again on 25.10.76 the day on which the court re-opened after the long vacation in the name of the plaintiff. The plaintiff filed an application under S. 17(3) of the Act on 3.11.76 for default in deposit of rent for August 1976 beyond the due date. The defendant filed objection to the said application under S.17(3) stating that he deposited the amount in the first week of September 1976 with the clerk of his advocate. But unfortunately he detected during the puja vacation that the amount was deposited on 22.9.76 in the name of P.K. Mitra. Thereafter the deposit for the same month again was made on the re-opening day as already stated hereinbefore in the name of the plaintiff and he filed an application on 15.1.77 under S. 151 for condoning the delay in making the deposit. 3. Both these applications were heard together and by the impugned order the learned Munsif allowed the application under S.17(3) of the Act while rejecting the application under S. 131 of the Code. The Rule as already stated is against this order. 4. Mr. 3. Both these applications were heard together and by the impugned order the learned Munsif allowed the application under S.17(3) of the Act while rejecting the application under S. 131 of the Code. The Rule as already stated is against this order. 4. Mr. Mukherjee appearing on behalf of the petitioner submitted that in view of the facts stated in the petition of objection to the application under S.17(3) it appears that the defendant was not negligent in putting in the amount in court as required in law, as the amount was duly handed over to the clerk or his Advocate who, however, did not deposit the same in time but deposited the amount much beyond due date in the name of the husband of the plaintiff. He submits that the delay in the circumstances should have been condoned by the learned Munsif In support he relied on a decision reported in Radha Krishan Sao v. Gopal Modi & Ors. AIR 1977 SC 1217 , in which it was held that, since the amount was deposited by the Nazi, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right in second appeal, to penalise the tenant by striking, out his defence and such penalty is to be kept distinct from the ground of eviction. The Court noticed that the provision of S. 11A of the Bihar Buildings (Lease, Rent and Eviction) Act, 1947 are for the purpose of realisation of the arrears of rent, pendente lite being in the nature of lawful enforcement of the conditions of tenancy and can be secured by the landlord at any stage of the litigation, whether in the trial Court or in appeals since appeal is a continuation of the suit which obviously includes revision. 5. It is submitted by Mr. Mukherjee that in the instant case there was no enquiry made by the learned Munsif who simply held that it was clear that the defendant did not intend to deposit the rent for August 1976 with the Rent Controller in compliance with the findings as to the relationship. This finding, it is contended, is without enquiry and cannot be sustained. 6. Mr. This finding, it is contended, is without enquiry and cannot be sustained. 6. Mr. Banerjee appearing for the landlord contended on the other hand that the tenant defendant in his deposit on 25th October, 1976 did not file any application stating reason for delay in deposit and it is only when the plaintiff filed an application under S.17(3) of the West Bengal Premises Tenancy Act, the defendant had come up with a cooked up story for explaining away delay in making the deposit. The case made out by the defendant was rightly disbelieved in the context of attending circumstances. 7. It appears that the defendant, according to his case, gave the required money to be deposited in Court for the month of August 1976 to the clerk of his advocate. To this there is no denial nor the learned Munsif held any enquiry with regard to the averments. It is further case of the defendant that he detected delay of deposit only during the Puja holidays and thereafter re-deposited the amount in the name of the wife on the re-opening day. On consideration of the facts aforesaid it appears to me that there is no warrant for the conclusion of the learned Munsif that the defendant did not want to deposit rent for the said month in compliance with the findings as to relationship of landlord and tenant. It has also to be noted that in case of such deposits the litigant has to depend on the clerk of his advocate and unless it is established that no such amount was ever deposited with the clerk in time, it is hard to disbelieve the defendant's case that the amount was duly deposited with the advocate's clerk in time. Further for the deposit in the wrong name of the husband the responsibility, though ultimately of the tenant, was also of the clerk of his advocate and of the advocate in charge and the Court has also to take into account the defendants conduct in depositing the same on the re-opening day after detection of the error. For these reasons I do not think it will be proper to penalise the tenant by striking out his defence in the suit for defaults over which he has no control. In the view I have taken I do not think that the conclusion arrived at by the learned Munsif is sustainable in law. 8. For these reasons I do not think it will be proper to penalise the tenant by striking out his defence in the suit for defaults over which he has no control. In the view I have taken I do not think that the conclusion arrived at by the learned Munsif is sustainable in law. 8. The Rule accordingly succeeds and is made absolute. The impugned order is set aside and the deposit made by the defendant on 25.10.76 is accepted as due compliance with the requirements of law in this respect. The defendant's application under S.151 of the Code is allowed and the plaintiff's application under S. 17(3) is dismissed. The defendant petitioner, however, will pay costs of this Rule to the plaintiff opposite party direct or to his advocate on record within three weeks from date, the bearing fee being assessed at 5 G. Ms. against a receipt to be granted by him showing the payment. Rule made absolute.