JUDGMENT 1. THE principal point in this appeal is whether the learned chief Judge' City Civil court, Calcutta has rightly decreed that the plaintiff respondent is entitled to recover the possession of the suit premises let out to the defendant appellant under clause (g) of sub-section (1) of section 13 of the West Bengal Premises tenancy Act, 1956. 2. IT is the case of the both parties that the appellant, Miss Mohini Mirchandani, was in the service or employment of the plaintiff-respondent, K. L. M. Royal Dutch airlines, until she had resigned - with effect from 1st April, 1973, It is also the common case that by reason of her being in the service or employment under the plaintiff, the suit premises was. Let out to the defendant for use as her residence. The said suit premises consisted of two living rooms kitchen and bath and a covered verandah in the third floor of 7, Jawaharlal Nehru Road and for a part of a residential flat taken on tenancy by the plaintiff company from the life Insurance Corporation of India at a monthly rental of Rs. 450/- per month. So long as the defendant was in service, the plaintiff used to deduct a sum of Rs. 235/ -. per month as rent from the monthly emoluments payable to her. After she ceased to be in service under the plaintiff, she was paid her provident fund, a sum of Rs. 12450/-as gratuity. In view of her "long and faithful service" and special circumstances the plaintiff company had decided to offer the defendant another sum of Rs. 25575/- Even after she ceased to be in service of the plaintiff, she did not surrender possession and the General Manager of the plaintiff company by his letter dated 18th april, 1973 had advised the defendant that tier portion of rent should be paid to plaintiff's Calcutta office who would issue a receipt for the payment. The plaintiff has also exhibited two receipts granted, by the plaintiff company to the defendant on account of rent paid for June, 1973 and december, 1975 indicating that up to december, 1975, the plaintiff company had accepted rent from the defendant. The defendant in her application dated 9th March, 1976 filed before the Rent Controller, Calcutta had, inter-alia, alleged that although she had tendered to the plaintiff rants for January, 1976 the latter had refused. The defendant in her application dated 9th March, 1976 filed before the Rent Controller, Calcutta had, inter-alia, alleged that although she had tendered to the plaintiff rants for January, 1976 the latter had refused. She also claimed that rent for February, 1976 although tendered, had been refused. She prayed that she may be given permission to deposit rent for February, 1976. The defendant appellant along with her application for additional evidence filed in this Court has filed copies of a number of rent control challans to establish that she had continued to deposit regularly and within the prescribed time rent in the office of the Rent Controller. 3. ON 21st September, 1976 the plaintiff respondent had instituted the instant ejectment suit against the defendant appellant under section 13 (1) of the West Bengal premises Tenancy Act 1956. The plaintiff company, inter alia, alleged that the defendant was bound to quit and vacate the suit premises consequential to her resignation from service with effect from 1st of April 1973 but at her request the Management in consideration of her 20 years of loyal service had allowed her to remain in occupation of the suit premises for some time to facilitate her in finding a suitable accommodation elsewhere. The defendant had left india for United States of America and according to the averments made in paragraph (10), she had kept the suit premises under lock and key and did not pay her occupation charges at the rate of Rs. 215/-per month from January1975. The plaintiff had given a lawyer's notice under section 13 (6) of the West Bengal Premises tenancy Act, 1956 dated 8th July, 1976 to the defendant at her address at the suit premises as well as to her address in the united States of America. While the notice sent to the suit premises had been returned undelivered with the remark "left", the defendant had duly received the notice sent to her address in the United States of america. 4. THE process server who went to serve the summons of the suit upon the defendant at the suit premises submitted a return stating that the said summons had been served by affixation as neither the defendant nor any other person authorised was found. 4. THE process server who went to serve the summons of the suit upon the defendant at the suit premises submitted a return stating that the said summons had been served by affixation as neither the defendant nor any other person authorised was found. The summons of the suit sent under registered post to the suit premises was also returned undelivered with a number of endorsements by the postal peon made between 9th July 1977 and 15th July 1977 the final endorsement being "party out of calcutta ; hence left". The Registrar, City civil Court at Calcutta did not consider the said returns as sufficient. The plaintiff by a petition had prayed for service of summons upon the defendant under Order 5 Rule 19a of the Code at her address in the United states of America given in paragraph (II)of the plaint. The Registrar allowed the said prayer. Neither the acknowledgement card nor the registered cover had been received back and on the plaintiff's prayer, the Registrar of the city Civil Court by his order dated 28th april, 1978 recorded that the summons under registered post with the acknowledgement due ought to be presumed to have been served. The records were placed before the learned Judge, 5th Bench, City civil Court. After the said learned Judge had fixed 24th May, 1978 for ex parte hearing, the defendant through her constituted attorney filed a written statement along with a petition praying for condoning the delay in filing the same. The plaintiff opposed. The trial court condoned the delay and accepted the written statement on payment of costs of Rs. 100/ -. On 24th May, 1978 the defendant had also filed two petitions respectively under section 17 (1) and 17 (2)read with section 17 (2a) (b) of the West bengal Premises Tenancy Act, 1956. The trial court by its order dated 22nd june, 1978 had rejected the defendant's application under section 17 (2) and 17 (2a) (b) of the West Bengal Premises Tenancy act, 1956 on the ground of limitation. The defendant being aggrieved, thereby had moved this Court in revision and had obtained Civil Rule No. 2191 of 1978. The trial court by its order dated 22nd june, 1978 had rejected the defendant's application under section 17 (2) and 17 (2a) (b) of the West Bengal Premises Tenancy act, 1956 on the ground of limitation. The defendant being aggrieved, thereby had moved this Court in revision and had obtained Civil Rule No. 2191 of 1978. On 21st December, 1978 a learned Single judge of this Court had discharged the said Rule obtained by the defendant holding inter-alia, that the summons of the said suit had been duly served upon the defendant and her application under section 17 (2)read with section 17 (2a) of the West Bengal Premises Tenancy Act, 1966 was rightly rejected on the ground of limitation. While the defendant's application for Review was pending before the learned Single Judge of this Court, the trial court had taken up the plaintiff's petition for striking out the defence against delivery of possession. After the defendant's prayer for adjournment was refused, no steps were taken on her behalf and the trial court by its order dated 21st May, 1979 had allowed the plaintiff's petition under section 17 (3) of the West Bengal Premises Tenancy Act and had struck out the defendants defence against delivery of possession. We understand that both the aforesaid review petition was unsuccessful and her fresh revisional application against the said order under section 17 (3) was also rejected by this court. The trial court also rejected the defendants application under section 151 of the Code for setting aside the trial court's order under section 17 (3) of the West bengal Premises Tenancy Act, 1956 dated 21st May 1979 The trial court had also rejected a subsequent application by the defendant for amendment of her written statement. 5. AT the final hearing of the suit, the plaintiff has examined its Sales Manager indrajit Sarkar as P. W. 1 and also produced some documentary evidence. The defendants brother Manik Mirchandani (DWI), testified on her behalf and also some papers were marked as exhibits on her side. The learned Chief Judge, City Civil Court as already stated, has decreed the suit. 6. The defendants brother Manik Mirchandani (DWI), testified on her behalf and also some papers were marked as exhibits on her side. The learned Chief Judge, City Civil Court as already stated, has decreed the suit. 6. SITTING in co-ordinate jurisdiction, we are not in a position to enter into the merits of the orders rejecting the defendants under section 17 (2) read with section 17 (2a) of the West Bengal Premises Tenancy Act, 1956, because a learned Single Judge of this Court in revision has already affirmed the trial court's said order and also rejected a review petition filed on defendant's behalf. In fact, Mr. Dasgupta, learned advocate for the appellant, submitted that he did not propose to challenge before us the said orders upon the defendant tenant's petition under section 17 (2) and 17 (2a) of the West Bengal Premises Tenancy Act. His submission was that even if the defendant tenant did not raise a dispute about the amount of arrears or pray for granting him instalment under the aforesaid two subsections of section 17, at the time of the hearing under section 17 (3) of the West bengal Premises Tenancy Act, the defendant was entitled to submit that he had deposited or paid rent up to date and had complied with sub-section (1) of section 17 of the West Bengal Premises Tenancy act, 1956 and therefore no order under section 17 (3) for striking out her defence ought to be made In case, a defendant in a suit filed on any. of the grounds mentioned in section 13 (1) of the West Bengal premises Tenancy Act denies that he is a tenant, certainly he is bound to raise the said dispute about relationship of landlord and tenant by filing an application under section 17 (2) of the said Act and in no other manner. The sub-sections (1), (2)and (2a) of section 17 only apply in respect of tenants. While it is true that the expression "dispute as to the amount off rent payable" is wide enough to cover a dispute about the relationship of landlord; and tenant and instead of filing a petition under section 17 (2) of the said Act, a defendant in an ejectment suit may also raise such a dispute about the relationship of the parties by praying that an issue be framed and determined. But the above position in law does not help the defendant appellant. Decision upon the question whether or not the summons of the ejectment suit had been served and if so, on what date, are part of a determination of an application filed under sub-section (2) or (2a) of section 17 of the West Bengal premises Tenancy Act. Therefore, once at the stage of the disposal of an application under section 17 (2) of the Act, the court records a finding regarding the date of service of summons, at the subsequent stage of section 17 (3), the parties cannot re-agitate the said question before the court which had already decided the same In the present case the trial court held that the defendant's application under section 17 (2) and (2a) of the Premises tenancy Act was barred by limitation because the summons of the suit sent under registered post to the defendant's address in America was duly served. The trial court rejected the defendant's claim that the summons was not sent to her correct address and therefore, there could be no presumption of due service of the summons. A learned Single Judge of this court in revision affirmed the said findings of the trial court that summons sent to the defendant under registered post was duly served. The learned Single Judge also rejected the defendant's application for review of his order discharging the Civil rule obtained by her. The learned Single judge refused to consider fresh materials produced by the defendant to prove that the registered cover containing summons had been allegedly returned undelivered. Above findings were not on jurisdictional facts but upon the merits of the defendant's case regarding the alleged non-service of summons upon her. The defendant herself claimed to be a tenant under the plaintiff. 7. FURTHER, it appeared from the averments made in paragraph (10) of the plaint that the defendant tenant "may have made default" since January, 1975. Therefore, it was incumbent for the defendant to raise within the prescribed time a dispute as to the amount of rent payable. The defendant herself claimed to be a tenant under the plaintiff. 7. FURTHER, it appeared from the averments made in paragraph (10) of the plaint that the defendant tenant "may have made default" since January, 1975. Therefore, it was incumbent for the defendant to raise within the prescribed time a dispute as to the amount of rent payable. If it was her case that she had validly deposited rent since February, 1975, she was bound to prove that the plaintiff landlord had accepted the rent tendered by her within the time referred to in section 4 of the West Bengal premises Tenancy Act and that bath the initial deposit of rent and also subsequent deposits in the Office of the Rent Controller were valid and amounted to payments of rent to the plaintiff landlord. But as already stated according to the findings made both by the trial court and by a learned Single judge of this Court in revision the summons of the suit was duly served and that within one month from the date of service thereof she did not file her petition under section 17 (2) and 17 (2) of the West Bengal Premises Tenancy Act, 1956. At the stage, the plaintiff's petition under section 17 (3) was taken up by the trial court, it was no longer open to the defendant to again urge that the summons of the suit was never served and that she had complied with sub-section (1) of section 17 of the West Bengal Premises Tenancy Act and thereby circumvent the effect of the adverse orders passed on her petition under section 17 (2) and (2a) of the West Bengal Premises Tenancy Act, 1956. Therefore, we conclude that the defence of the defendant was rightly struck out. 8. ALTHOUGH the defence of the defendant was struck out, the trial court had framed issues and had recorded evidence of both parties not only on the question of notice but also regarding the ground mentioned in section 13 (1) (g) of the said Act. The defendant had cross-examined on all points the plaintiff's witness, P. W 1, and also she had examined her brother as D. W. 1 and produced some documentary evidence. Therefore, the defendant did not suffer the prejudice by reason of striking out her defence against delivery of possession. The defendant had cross-examined on all points the plaintiff's witness, P. W 1, and also she had examined her brother as D. W. 1 and produced some documentary evidence. Therefore, the defendant did not suffer the prejudice by reason of striking out her defence against delivery of possession. We have heard the submissions of learned advocates for both parties on the question whether the plaintiff landlord was entitled to recover possession of the premises under section 13 (1) (g) of the West bengal Premises Tenancy Act. When it is admitted that originally the premises was let to the defendant for use as residence by reason of her being in plaintiff's service, the burden was upon the defendant to prove that after she ceased to be in service a fresh tenancy was created in her favour. P. W. 1, the Sales Manager, of the plaintiff company, in his examination in chief had stated that the plaintiff company had permitted the defend and to remain inoccupation of the suit flat even after her resignation for some time in order to find out a suitable flat. This permission was granted to the defendant in consideration of her long service under the plaintiff company. Mir. Dasgupta has criticised this part of the evidence of P. W. 1 on the ground that during his cross-examination P. W. 1 admitted that the General Manager had verbally granted the said permission but the General Manager was not examined as a witness. The plaintiff did not produce its office records which P. W. 1 claimed to have seen. There is some force in this contention made on behalf of the defendant. But neither during the cross-examination of P. W. 1 nor while adducing evidence on her side the defendant ever attempted to establish that subsequent to her termination of service under the plaintiff company, there was a fresh or a new arrangement for granting a tenancy in defendant's favour. There is no evidence to prove that any such fresh tenancy was created in defendant's favour. The defendant herself did not verify her written statement and did not depose as a witness. Her brother, D. W. 1, did not also testify on this point. There is no evidence to prove that any such fresh tenancy was created in defendant's favour. The defendant herself did not verify her written statement and did not depose as a witness. Her brother, D. W. 1, did not also testify on this point. D. W. 1 who was holder of a power of attorney granted by the defendant did not at all speak about any new agreement or arrangement between the parties for accepting the defendant as an ordinary monthly tenant. Further, the probabilities and surrounding circumstances were against creation of a new tenancy in favour of the defendant. The defendant originally occupied the flat by reason of her service under the plaintiff. The plaintiff company itself was a tenant under the Life Insurance Corporation of india in respect of the suit flat and the adjoining one. In the case of Read v Gordon 1941 (1) All. E-R 222, the tenant 6f the respondent by consequence of his employment was determined and thereafter a new agreement was entered into, there-fore, this reported case is distinguishable on facts, The Court of Appeal in the later case of Benninga (Mitcham) Ltd, v. Bijstra 1945 (2) All E. R. 433, distinguished their decision in Read v. Gordon (supra), and held that after determination of his service the appellant became a statutory tenant and therefore acceptance of rent from him did not create 8 new tenancy. 9. IN each case it would be a question of fact whether or not a new tenancy had been created after the employee had eased to be in service under his employer who had let out a premises for the former's use as residence. "the court is generally reluctant to infer the creation of a new tenancy merely from the tenant's continuance in possession after his contract of service had ended, even if this was many years ago and he has since paid in cash the rent formerly deducted from his wages or has paid an increased rent ;" ( See the rent Acts of by R. E. Megarry, 10th Edn. Vol. 1 pages 280-281 ). We are in agreement with the above statement of law. 10. EVEN after her service or employment under the plaintiff respondent was terminated, the defendant continued to enjoy protection against eviction. Vol. 1 pages 280-281 ). We are in agreement with the above statement of law. 10. EVEN after her service or employment under the plaintiff respondent was terminated, the defendant continued to enjoy protection against eviction. Her tenancy was not terminated and she was still a tenant as defined in section 2 (h) of the west Bengal Premises Tenancy Act, 1956. Only after a decree or order for her eviction is made by a court of competent jurisdiction, she would no longer be a tenant in respect of the suit premises. Therefore, merely by accepting rent from the defendant even after she had retired from service, the plaintiff did not enter into a fresh agreement of tenancy in the absence of any evidence of such fresh agreement and/or arrangement between the parties. The defendant enjoyed statutory protection and under section 4 of the West bengal Premises Tenancy Act, 1956 was bound to pay rent to the plaintiff landlord within the stipulated time. The plaintiff was under legal obligation to accept the rent from the defendant to whom no notice of suit under section 13 (6) of the Act had been given. The Supreme Court in Ganga dutt Murarka v. Kartick Chandra Das and others AIR 1961 SC 1097 , had pointed out, inter-alia, that where a tenant continues in possession of the premised by virtue of statutory protection acceptance of rent from him by the landlord after determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. The Supreme Court had recognised that there was, however, no prohibition against a landlord entering into a fresh contract of tenancy with a tenant who remains in occupation by virtue of the statutory immunity. There may be an express contract or an implied one inferred from the conduct of both parties. Sections 23 and 24 of the west Bengal Premises Tenancy Act, 1956 respectively deal with waiver of any notice to quit and of waiver of default by acceptance of rent. However, the said two sections 23 and 24 of the Act of 1956 are not relevant for deciding the present case. 11. Sections 23 and 24 of the west Bengal Premises Tenancy Act, 1956 respectively deal with waiver of any notice to quit and of waiver of default by acceptance of rent. However, the said two sections 23 and 24 of the Act of 1956 are not relevant for deciding the present case. 11. FOR the foregoing reasons, we conclude that merely from the tenant's continuance in possession after her contract of service was ended and payment of rent by her, the court cannot infer that a new tenancy in favour of the defendant was created. We hold that she was liable to be ejected under section 13 (1) (g) of the West Bengal premises Tenancy Act, 1956 because the premises in question had been let out to her by reason of her being in service of the plaintiff landlord and that she had ceased to be in such service. In fact, she herself was no longer living in the suit flat. The appellant has not made out any case for receiving additional evidence, hence her application under Order 41 Rule 27 of the code is rejected. 12. ACCORDINGLY, this appeal is dismissed without any order as to costs. After the judgment is delivered, Mr. Das Gupta prays for a certificate under article 133 of the Constitution of India. In our view, this case does not involve any substantial question of law of general importance and therefore, not fit to be decided by the Supreme Court. Appeal dismissed without costs.