Ahi Bhusan Maitra v. Sm. Ira Bose — 1982 DIGILAW 270 (CAL)

JUDGMENT Anil K. Sen, J. This is an appeal from an appellate decree at the instance of the tenant defendant and it arises out of a suit for eviction which had been decreed concurrently by the two courts below. 2. Facts are not in dispute and may be set out very briefly. The plaintiff/respondents (hereinafter referred to as the plaintiff;) are the joint owners of premises No. 20D, Chakraberia Lane which was let out to the defendant/appellant (hereinafter referred to as the defendant) on a monthly rental of Rs. 60/- payable according to English calendar. On March 30, 1970, the plaintiffs instituted an earlier suit, being Title Suit No. 203 of 1970 as against the defendant for a decree for eviction on the ground of default since September 1969. This suit was dismissed when the tenant/defendant was given relief under S. 17(4) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) upon the following finding :- “The defendant deposited the arrear rents for September 1969 to December 1969 together with statutory interest on 20.11.70 by Ext, A(10). The defendant had deposited rents from January 1970 to October 1970 before the Rent Controller's Office vide Ext. A to A/9. On perusal of Ext. A to A/9 it appears that the deposits are in time. Since November 1970 the defendant has been depositing rent in court in time. Ext, A/11 to A/24 prove that the defendant has deposited rents for November 1970 to December 1971 in court in time. At this moment, I find that the defendant is not in arrears of rent”. The said suit was dismissed on January 24, 1972. In that background the plaintiff instituted another suit for eviction as against the defendant, being Title Suit No. 93 of 1973 of the 2nd Court of the learned Munsif at Alipore (out of which the present appeal arises) on two fold grounds of default and reasonable requirement for their own use and occupation. The two courts have concurrently over-ruled the plaintiff, claim of reasonable requirement though the suit has been concurrently decreed on the other ground of default. The default pleaded was a technical one. The two courts have concurrently over-ruled the plaintiff, claim of reasonable requirement though the suit has been concurrently decreed on the other ground of default. The default pleaded was a technical one. It was not disputed that since after the dismissal of the earlier suit the tenant defendant continued to deposit rent with the Rent Controller month by month and in time but such deposits were claimed to be invalid because there was no fresh tender of rent to the landlord personally or by money order subsequent to the judgment and decree in the earlier suit for eviction. The defence plea that there was such a personal tender subsequent to the earlier suit was not accepted by the learned judges in the courts below who concurrently held that the deposit of rent with the Rent Controller are invalid solely on the ground that there was no prior tender of rent to the landlord after the aforesaid dismissal of the earlier suit. Feeling aggrieved, the tenant defendant has preferred the present second appeal to this court. 3. Mr. Bagchi appearing in support of this appeal has contended that even on the findings of the two courts below the tenant defendant could not have been adjudged a defaulter. Relying on the amended provision of S. 21(4A) of the said Act, it has been strongly contended by Mr. Bagchi that when in the earlier suit the court had found deposit of rent with the Rent Controller for the months of January 1970 to October 1970 to be valid deposit, it is necessarily established that such deposit followed a valid tender to the landlords. Once that is established, according to Mr. Bagchi, until the landlords signify their intention in writing to the tenant that they are willing to accept the rent amicably from the tenant, the tenant defendant was entitled in law to continue to deposit rent which fell due after the dismissal of the suit with the Rent Controller without any fresh tender to the landlords. In other words, according to Mr. In other words, according to Mr. Bagchi intervention of the earlier suit or the resultant liability of the tenant defendant to deposit an amount equivalent to rent in court under S. 17(1) of the Act during the continuance of the previous suit did not cause forfeiture of the legal right of the defendant tenant to again go on depositing the monthly rent to the credit of the landlords with the Rent Controller based upon their earlier refusal without a fresh tender to the landlords. Such being the right of the tenant defendant he could not have been adjudged a defaulter in the present suit only on the ground that the deposits of lent made by him following the earlier suit are invalid only because there was no fresh tender of rent to the landlords. 4. Mr. Mukherjee appearing on behalf of the plaintiffs has however, contested the point thus raised by Mr. Bagchi. According to Mr. Mukherjee S. 4 and S. 21 of the said Act provide for payment or deposit of contractual rent. Section 17 of the Act, according to Mr. Mukherjee imposes a statutory liability on the tenant to deposit an amount equivalent to rent for the purpose of entitling him to get protection under the Act. Deposits made under S. 17(l) of the Act, according to Mr. Mukherjee are not deposits of contractual rent. As a necessary consequence, it has been contended by Mr. Mukherjee that once the earlier suit is dismissed the liability to pay the contractual rent arises once more and, as such the tenant defendant must pay the said rent once more in terms of S. 4. Only in the event an offer so made under S. 4 is refused can the tenant defendant deposit the rent once more in terms of the provision of S. 21 but not otherwise. 5. On the rival contentions put forward before us it appears to us that the present appeal involves a question of law which was neither raised before nor considered by the two courts below. 5. On the rival contentions put forward before us it appears to us that the present appeal involves a question of law which was neither raised before nor considered by the two courts below. Both the courts proceeded on the view that once the defendant had failed to establish his defence that he made a fresh tender of rent to the landlords after the disposal of the earlier suit fur ejectment, deposit of rent by him with the Rent Controller thereafter though made in time would be invalid because of the reason that such deposit was not preceded by any valid tender. The two courts below failed to take note of the fact that it is well established that prior to the earlier suit on the plaintiff landlord's refusal to accept rent tendered to him, the tenant had been depositing such rent with the Rent Controller and such deposit was held to be valid in the earlier suit. This fact was not disputed either at the trial and neither of the said courts considered the question whether because of such earlier refusal by the landlords and in the absence of the landlords signifying in express terms their willingness to accept the rent once more, the defendant bad a legal right to go on depositing rent with the Rent Controller without any fresh tender. According to Mr. Mukherjee this question should be answered against the defendant because according to him what the tenant/defendant was depositing with the Rent Controller prior to the earlier suit was the rent in discharge of his contractual liability ceased as and when the suit was filed and S. 17 of the said Act, intervened to imp1se a statutory obligation. It is contended by Mr. Mukherjee that when such a suit ended in a dismissal the statutory obligation again lapsed and necessarily the contractual obligation revived; once it is so revived according to Mr. Mukherjee it is necessary for the tenant defendant to pay the rent in discharge of his contractual obligation to the landlord and such payment must be by tender to the landlord personally and not by deposit with the Rent Controller except upon his refusal. To distinguish the different nature of the obligations imposed by S. 17 and S. 21 of the said Act respectively and to support this contention of his, Mr. To distinguish the different nature of the obligations imposed by S. 17 and S. 21 of the said Act respectively and to support this contention of his, Mr. Mukherjee has strongly relied on the majority view in the Special Bench decision of this court in the case of Siddheswar v. Prakash 68 CWN 30 which was approved by the Supreme Court in the case of Kaluram v. Baidyanath AIR 1965 SC 1909 . 6. We have carefully considered the contention thus put forward before us by Me Mukherjee but we are unable to accept the same. In our view, the scheme of the Act makes it abundantly clear that the legislature intended the tenant to discharge his rent liability all through in order to be entitled to the protections under the Act; this the tenant is expected to do even pending t he suit. We do not think that the nature of the liability for the payment is in any way changed only because a suit intervenes and S 17 of the said Act comes to assume the field. The tenant's liability for payment of rent, though it originates from the contract between the parties, rendered a statutory liability when the statute intervenes to make it so under S. 4 of the said Act. What is so payable is the contractual rent so long the fair rent is not fixed under the statute and once such a rent is fixed the tenant is liable to pay the rent so fixed. In our view S. 17 of the said Act contemplates the same payment as is contemplated by S. 4 or S. 21 of the Act. The only difference made, is with regard to the mode of payment. In the Special Bench decision referred to by Mr. Mukherjee this court was considering the question whether continuance of deposit of rent with the Rent Controller by a tenant/defendant subsequent to the suit would constitute payment to the landlord within the meaning of S. 17(1) of the said Act prior to its 1965 amendment. In the Special Bench decision referred to by Mr. Mukherjee this court was considering the question whether continuance of deposit of rent with the Rent Controller by a tenant/defendant subsequent to the suit would constitute payment to the landlord within the meaning of S. 17(1) of the said Act prior to its 1965 amendment. Though the minority held that it would be so, the majority expressed a different view when it was held that on the statutory requirement once the suit is filed such rent must be either paid to the landlord or deposited in court and not with the Rent Controller, This decision in our view is no authority for the proposition that the nature of the liability for payment is changed as and when S. 17 of the said Act comes into play. It is not correct to think that the liability for the contractual rent having ceased what is substituted is a statutory liability. The statute enjoins that a tenant, enjoying the benefit and protection thereunder, must go on paying or depositing the rent-either agreed or as fixed by the Rent Controller, though it prescribes different mode of payment or deposit depending on the fact as to whether a suit for ejectment is pending against the tenant of not. If the liability discharged under S. 17(1) of the said Act is not the same liability as contemplated by S. 4 or S. 21 of the said Act, then, in the event the suit fails, the tenant for no fault of his own would fall within the mischief of S. 13(1)(i) of the said Act as he would be held to be in default in the matter of discharge of his rent liability. Such a result was certainly not intended by the legislature. The Supreme Court in Kaluram's case was merely affirming this aspect, when referring to S. 17(1) of the said Act the Supreme Court explained the nature of the obligation thereunder by observing "No doubt the amount required to be deposited may be the amount for which the parties may have entered into a contract but the manner and the mode in which the deposit is required to be made in court are the result of the statutory provision and in that sense they constitute obligation." 7. The majority in the Special Bench of this court merely held that continuance of deposit of refit with the Rent Controller by the tenant/defendant constituted breach of S. 17(1) of the said Act as it stood prior to the 1965 amendment but it was not held that notwithstanding such deposit the tenant/defendant would incur the liability of being a defaulter in the matter of payment of rent. In Siddheswar's case, both the majority and minority view were unanimous on the point that the liability of the tenant under S. 17(1) of the of the said Act was a liability to pay rent. Bachawat, J. with whom P.N. Mukherji, J. concurred observed: “I reject the contention that S. 17 requires the tenant to deposit or pay sums which are not rent. The object of S. 17 is to secure to the landlord punctual payment of rent by the tenant during pendency of a suit for eviction.” Some thing was said by G.K. Mitter, J when he observed “The legislature did not desire that the institution of any suit or proceeding for recovery of possession of premises should impair the landlord's right to receive rent. Some provision in the Act was necessary to ensure regular payment of rent even during the pendency of the suit or the proceeding. With this object S. 17 of the Act was enacted.” 8. The position of the tenant in this regard has been made clear by the legislature when sub-s. (4A) of S. 21 of the said Act was incorporated by the Amending Act of 1969. Section 21 (1) of the said Act provides : "Where the landlord does not accept any rent tendered by the tenant within the time referred to in S 4 or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner." A doubt arose at one stage whether sub-s. (1) as aforesaid contemplates fresh tender of rent month by month to the landlord before it is deposited in the manner prescribed therein. Though in a case under the Calcutta Rent Act, 1920, it was observed that such a result does not reasonably follow from a provision comparable to sub-s. (1) of S. 21 of the said Act (vide Rekabchand Dugar v. J.R.D' Crouze 26 CWN 499), some doubt was expressed about the correctness of that view in a later decision. All the doubt as aforesaid was removed by the legislature when it incorporated a new sub-section as sub-s. (4A) which prescribed as follows : “Where rent for any month or period bas been deposited under this section on the ground that the landlord did not accept the rent when tendered by the tenant, then, notwithstanding anything contained in sub-s. (1), the tenant may, without further tender of rent to the landlord continue to deposit the rent for subsequent months or periods unless the landlord signifies by notice in writing to the tenant his willingness to accept the rent if tendered to, him within time referred to in sub-s. (4)”. 9. This sub-section makes it clear that once the landlord has refused to accept valid tender of rent made to him the tenant's right to continue to deposit rent with the Rent Controller would subsist until the landlord in his turn signified by a notice in writing to the tenant his willingness to accept rent if tendered to him validly once again, Once there is a refusal the obligation is shifted to the landlord to signify by a notice in writing his willingness to accept rent and until the landlord discharges such an obligation of his, the right to make the deposit with the Rent Controller continues with the tenant. Laying emphasis on the words "continue to deposit rent for subsequent months”, Mr. Mukherjee has contended that once the continuity is lost by the fact of intervention of a suit bringing into operation the provision of S. 17(1) of the said Act, this sub-section can be of no help to a tenant/defendant. Extending the principle contended for by Mr. Laying emphasis on the words "continue to deposit rent for subsequent months”, Mr. Mukherjee has contended that once the continuity is lost by the fact of intervention of a suit bringing into operation the provision of S. 17(1) of the said Act, this sub-section can be of no help to a tenant/defendant. Extending the principle contended for by Mr. Mukherjee to the logical extreme if there is a lapse in the matter of continuity of the deposit with the Rent Controller by the tenant, the tenant can no longer be entitled to deposit the rent with the Rent Controller except upon a fresh tender irrespective of the fact as to whether her such lapse is due to intervention of a suit, default on the part of the tenant or for any other reason. In our considered opinion the legislature never contemplated such a result Sub-section (4A) merely preserves the right of the tenant to continue the deposit with the Rent Controller and continuity of the deposit was not intended to be made the condition precedent to the preservation of such a right. This view of ours finds some support from the decision of the Supreme Court in the case of Raimohan Mazumdar v. Ramkrishna Das AIR 1980 SC 872 . In the case under consideration by the Supreme Court the tenant made a valid tender of rent for the month of July 1965, to the landlord which was refused. The tenant, however, instead of depositing the rent for, July 1905 with the Rent Controller made a second tender but beyond time which also being refused be started depositing rent with the Rent Controller from, September 18, 1965 on which date the rent for the month of July was deposited. Rents for the subsequent months were deposited with the Rent Controller in time. The High Court decided against the tenant on the view that all the deposits were invalid because they were not preceded by at least one valid tender. This was overruled when the Supreme Court held that though the deposit of rent for the month of July 1965 was not a valid deposit for months subsequent were valid deposit based on the first tender made in August 1965. If we accept the contention of Mr. This was overruled when the Supreme Court held that though the deposit of rent for the month of July 1965 was not a valid deposit for months subsequent were valid deposit based on the first tender made in August 1965. If we accept the contention of Mr. Mukherjee, then in the case before the Supreme Court though there was a valid tender of rent for the month of July 1965, the rent for the said month not having been deposited in accordance with law, the continuity was lost and subsequent deposits required a fresh tender as was held by the High Court but was overruled by the Supreme Court. This is the reason why we would prefer to construe sub-s. (4A) to mean that it merely confer a right on the tenant to continue to deposit rent for the months for succeeding with the Rent Controller once it is based upon a refusal by the landlord of valid tender until the process is reversed by a positive act of the landlord signifying his willingness to accept the rent if tendered to him in accordance with law. Such was the view taken by a learned single Judge of this court in the case of Kamlabala Devi v. Durga Charan Dutta & anr., 77 CWN 170 and we respectfully agree with the view so taken. Before we conclude, we may refer to the observations of Sinha J, in Siddheswar's case indicating that such was the legal position even before incorporation of sub s. (4A) to S. 21 of the Act. In para 12 of the judgment he observed where however such a suit or proceeding terminates and no decree or order for recovery of possession has been made, the tenant's right to deposit rent with the Rent Controller under Chapter IV revives as also his liability for default if such deposits are not made. 10. In the result, to hold that the two courts below erred in law in holding that the tenant/ defendant in the present case was in default in payment of rent and, as such, is liable to be evicted on a ground contemplated by S. 13(1)(i) of the said Act. The judgment and decree passed by the courts below based on such an erroneous view of the law are liable to be set aside and we direct accordingly. The appeal, therefore, succeeds and is allowed. The judgment and decree passed by the courts below based on such an erroneous view of the law are liable to be set aside and we direct accordingly. The appeal, therefore, succeeds and is allowed. The judgment and decree of the courts below having been set aside, the suit is dismissed, Parties, however, arc directed to bear their costs throughout. S. N. Sanyul, J. I agree Appeal allowed.