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2007 DIGILAW 731 (CAL)

Salil Kumar Chakraborty v. Tarun Kumar Sarkar

2007-09-20

MANIK MOHAN SARKAR

body2007
Judgment :- (1.) THIS application under Section 115 of the Code of Civil Procedure is brought against the order No. 42 dated 28. 01. 1988 passed by Sri M. Ghosh, learned Munsif, 3rd Court at Sealdah in Title Suit No. 542 of 1981. (2.) THE petitioner was a defendant in the suit brought by the father of the opposite parties against the present petitioner for recovery of possession from the tenanted premises/portion at 5, Mall Road, Dumdum. The petitioner was a tenant therein at a monthly rental of Rs. 30/- payable according to the english Calendar month. On 30. 10. 1981 the petitioner filed an application under section 17 (1) of the West Bengal Premises Tenancy Act, 1956 in that suit and deposited the sum as an arrear rent up to the month of October, 1981 @ Rs. 30/-according to the English calendar month and also prayed before the learned trial Judge for depositing of current monthly rent from November, 1981 and onwards. On 13. 10. 1982 the opposite parties filed an application under Section 17 (3) of the said Act in the said suit alleging that the application under Section 17 (1) did not contain any prayer for condonation of delay in depositing the arrears/default amount and also on the ground that there was no provision under Section 17 (1) of the said Act to deposit the rent for the current month before its expiry and call that the deposit of the arrear amount was entirely invalid deposit under Section 17 (1) of the said Act. The petitioner filed an application under Section 151 of the Code of Civil Procedure in the same Title suit No. 542/1981 with the claim that the Courts power of striking out defence against the delivery of possession as provided in Section 17 (3) of the West bengal Premises Tenancy Act, 1956 is discretionary and not mandatory and that the deposits of two months rent at a time were made as a measure of protection so that there could not be any default and that this practice was not being pre-judicial to the interest of the opposite parties, the rent so deposited should be accepted as valid. (3.) THE said application under Section 151 was heard by the learned munsif, 3rd Court at Sealdah who passed an order being No. 42 dated 28. 01. (3.) THE said application under Section 151 was heard by the learned munsif, 3rd Court at Sealdah who passed an order being No. 42 dated 28. 01. 1988 by rejecting the said application under Section 151 on the ground that the order of striking out defence under Section 17 (3) of the West Bengal premises Tenancy Act reached finality with the passing of the order by the honble High Court at Calcutta and on refusal of Special Leave Petition by the honble Supreme Court of India as the matter could not be reopened. (4.) INCIDENTALLY, opposite parties earlier filed application under Section 17 (3) of the West Bengal Premises Tenancy Act on 13. 10. 1982 and the said application was contested by the present petitioner by filing written objection thereto on 20. 12. 1982. The said application under Section 17 (3) was subsequently heard by the learned Munsif, 3rd Court at Sealdah and the said application under Section 17 (3) was rejected by the said learned Court by order No. 18 dated 20. 12. 1982. Subsequently, opposite parties moved application under Section 115 of the Code of Civil Procedure against the said order of the learned Munsif before this High Court and obtained a Civil rule being No. 732 of 1983 and subsequently, the said rule was heard on 31. 5. 1984 by the Honble Revisional Court of this High Court and order was passed by allowing the application under Section 17 (3) by setting aside the order No. 18 dated 20. 12. 1982 of the learned Munsif. The petitioner moved an application for obtaining Special Leave (C) No. 9803 of 1984 before the Honble Supreme court of India and the said application was subsequently heard by the Honble apex Court and by an order dated 20. 4. 1986 the said Special Leave application was dismissed. (5.) THE order under challenge in the present application came up in consequence to an application filed by the present petitioner under Section 151 of the Code of Civil Procedure and in rejecting the said application upon contested hearing the learned Munsif might have referred to the above referred order of this High Court and also of the Honble Supreme Court of India. (6.) FROM the statement made in paragraph 12 of the present application, it is evident that the petitioner wanted to re-open the issue of defaulted deposit of rent which was agitated in the application under Section 17 (3) filed by the opposite parties and to claim on the basis of different decision of Honble Supreme Court of India and Honble Special Bench of this High court that the deposit of rent owing to delay should not be equated with default arising out of non-deposit rent but claimed that it should be regarded default in technical sense only and the Court has the power to condone such delay and that Courts power by striking out defence against delivery of possession as laid down in Section 17 (3) to be discretionary and not mandatory. (7.) INCIDENTALLY, the basis of filing application under Section 17 (3) may be revealed from the contents of paragraph 4 of the application under section 151 of the Code of Civil Procedure filed by the present petitioner before the learned Munsif. The said paragraph may be referred in the following lines-"the defendant begs to state and submits that he was suffered from cerebral attack in April, 1980 and subsequently he became invalid as a result he through his agent has all along been depositing rent and in view such situation and condition he had deposited two months rent at a time on some occasions viz. the rent for November and December, 1981 deposited on 12. 12. 1981, rent for January and February, 1982 deposited on 4. 2. 1982, rent for March and April, 1982 deposited on 1. 4. 1982, rent for August and September, 1982 deposited on 1. 9. 1982 and rent for october and November, 1982 deposited on 13. 10. 1982 and three occasions he deposited rent within the current month i. e. rent for May, june and July, 1982 were deposited within the month. " (8.) THEREFROM it is revealed that the petitioner tried to impress upon the learned Court that on some occasions he made deposits of two months rent at a time and among them one rent was deposited on regular basis within the stipulated time in the following month while in the same challan the rent of the following month was also deposited in the nature of an advance deposit. It is the claim of the petitioner that these deposits in the nature of advance deposits of some months, were made to safeguard the petitioner as defendants in the ejectment suit and it is claimed that the said deposits should not be treated as defaulted payment since provision of the Act requires that the deposits of current rent should be made within the stipulated period of time. (9.) IT is fact that already this matter was decided by the Honble revisional Court of this High Court earlier in Civil Rule No. 732 of 1983 with the following observations in one of its concluding paragraphs, over an application by the landlords following rejection of an application under section 17 (3) of the West Bengal Premises Tenancy Act. "the question thus raised is whether the deposit of two months rent at a time is in compliance with section 17 (2) of the Act. In the latter part of section 17 (1) there is no question of any default. The tenant under the statute is obliged to deposit or pay month by month by 15th of each succeeding month a sum equivalent to the rate of rent at which it was last paid. This obligation is a statutory one, the breach of which will bring the case within section 17 (3) of the Act. If the tenant fails to deposit or pay any amount referred to in sub-Section 1 within the time specified therein, the provisions of Section 17 (3) of the Act would be attracted. It is true that the Premises Tenancy Act is a special statute enacted for the benefit or protection of the tenant. Section 17 provides a scheme for payment of the amount in respect of which default has been made but also for payment month by month. The words "month by month" occurring in Section 17 (1) cannot be excluded. The tenant cannot devolve his own procedure for payment of several months rent at a time. The obligation cast upon the tenant under Section 17 (1) of the Act is to deposit month by month. The tenant has not made any deposit in January, 1982 and March, 1982. Though monthly rents have been deposited, but as some of the deposits were not in consonance with the provisions contained in the latter part of Section 17 (1), there was a breach of the said provision. The tenant has not made any deposit in January, 1982 and March, 1982. Though monthly rents have been deposited, but as some of the deposits were not in consonance with the provisions contained in the latter part of Section 17 (1), there was a breach of the said provision. In such circumstances, it has to be held that the tenant has failed to deposit amount referred to in sub-section (1) within the time specified therein. The application under Section 17 (3) of the Act is thus allowed. The defence against the delivery of possession is struck out. (10.) IN the application under Section 151 of the Code of Civil Procedure filed by the present petitioner before the learned Munsif, 3rd Court, Sealdah, the petitioner submitted that he had deposited the said advance deposit of rent for some months along with the current month on good faith and bona fide plea to avoid delay of deposit of such monthly rent or such amount equivalent to monthly rent and that he made the said deposit well within the prescribed period of time as provided under the Act with the expectation and belief that both deposits were valid deposits as much as the law does not debar a tenant from depositing current monthly rent during pendency of the suit, in advance. (11.) IN the present application, thus, following questions crop up for consideration. i) The question as to whether the deposit of any amount equivalent to monthly rent as current rent for the subsequent month, made by the tenant during the pendency of the suit, in advance along with the rent for the current month, can be treated as valid deposit in consideration of a prayer under Section 151 of the Code of Civil Procedure by the petitioner and whether the view taken by the learned Trial Court in rejecting the said application under Section 151 of the C. P. C. as proper? ii) Whether the principle of res judicata applies in such a case ? ii) Whether the principle of res judicata applies in such a case ? (12.) BEFORE entering into the merit of the present application, it is to be ascertained whether the present petitioners prayer made in his application under Section 151 of the Code of Civil Procedure before the learned trial Court is hit by the principle of res judicata in view of the decision of this High Court in an earlier application being Civil Rule No. 732 of 1983 referred in the earlier paragraph. (13.) IT is fact that the present petitioner in his application under Section 151 of the Code of Civil Procedure has prayed for a relief before the learned trial Judge to treat the deposit of current rent for the month of December, 1981, February, 1982, April, 1982, September, 1982 and November, 1982 to be valid deposit. In doing to, the petitioner never concealed that the opposite parties earlier filed application under Section 17 (3) of the West Bengal premises Tenancy Act, 1956 before the learned Trial Judge to treat those advance deposits as invalid deposits and consequently prayed for striking out the defence of the present petitioner and on refusal by the learned Trial Judge to allow such application under Section 17 (3) of the Act, the opposite parties moved before this High Court in the said Civil Rule No. 732 of 1983 which went in their favour by holding the said deposits as in the nature of breach of this provision of Section 17 (1) calling the petitioner to deposit of payment of current rent "month by month". So, it is found that the petitioners contention and prayer made in the present application under Section 151 of the C. P. C. was also discussed and decided by the earlier Honble Revisional Court of this High Court. (14.) MR. Sadananda Ganguly, learned Advocate for the petitioner with his usual fairness did not by-pass this matter even though opposite parties they are not present during the hearing of the present application. According to Mr. Ganguly, the said decision of this High Court in the earlier Rule cannot operate as res judicata in the present application since the provision of Section 17 (1) of the Act is a mixed question of law and fact to determine whether the deposit of the current rent of a month is valid or not. It is submitted by Mr. Ganguly, the said decision of this High Court in the earlier Rule cannot operate as res judicata in the present application since the provision of Section 17 (1) of the Act is a mixed question of law and fact to determine whether the deposit of the current rent of a month is valid or not. It is submitted by Mr. Ganguly that the previous decision on the matter in issue was a composite decision since the provision of law referred to in Section 17 (3) of the Act cannot be dissociated from the decision on facts on which the opposite parties claimed to have acquired a right against the present petitioner in the style of striking out of his defence in the Eviction Suit concerned. (15.) MR. Ganguly further submitted that the petitioner has committed no wrong in respect of the deposits of month rents during the pendency of the suit as per provision of Section 17 (1) of the Act since he made some deposits in advance only to keep himself in the safer side not to be designed as a defaulter in respect of deposit on payment of current rent during the pendency of the suit and these advance deposits can never be equated with the term "delayed Deposits" which gives the landlord a right to pray for striking out the defence of the tenant-petitioner. (16.) MR. Ganguly further stated that the decision in the earlier Rule by this High Court should not be treated as one finally deciding the matter in the present application since the suit is still alive in respect of the principal issues involved in the said suit concerned. It is submitted that the principal issue in the said suit is whether the present petitioner should be evicted from the suit premises on the grounds as stated by the opposite parties in the suit which are pre-suit affairs and any incident occurring during the pendency of the suit cannot be a ground for such eviction of the present petitioner and so, the earlier decision can never be the matter-in-issue in the present application. (17.) IN this connection, Mr. Ganguly relied upon a decision reported in air 1971 Supreme Court 2355 (Mathura Prasad Sarjoo Jaiswal and Ors. (17.) IN this connection, Mr. Ganguly relied upon a decision reported in air 1971 Supreme Court 2355 (Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N. B. Jeejeebhoy) wherein the Honble Apex Court has viewed that-"where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata for a rule of procedure cannot supersede the law of the land. " (18.) BY referring the said decision, Mr. Ganguly made it clear that he is not questioning the correctness or otherwise of the earlier judgment but claiming the advance deposits made by the petitioner as valid deposits and that being an interlocutory order, according to him, the earlier decision on this point cannot operate as res judicata since the earlier decision was in respect of deciding whether the opposite parties were entitled to get the defence of the present petitioners struck out and in coming to the said decision, incidentally, the nature of such advance deposits came under discussion. (19.) BEFORE going to discuss upon this point a quick look to the provision of Section 11 of the C. P. C. is to be done. The provision of Section 11 restricts trying of any suit or issue having the matter directly or substantially in issue in a former suit in between the same parties litigating under the same title, in a competent Court to try and the said earlier suit has been heard and finally decided. (20.) SECTION 17 (3) of the West Bengal Premises Tenancy Act gives a privilege to the landlord to curtail the defence of the tenant in the pending suit if the tenant defaults in respect of deposit of rent as per direction given in section 17 (1) of the Act. Decision under Section 17 (3) does not dispose of the suit finally but it puts an embargo upon the tenant in the process of exercise of his defence in the suit. (21.) IT is no doubt that the principle of res judicata is a procedural provision and it debars a Court from determining the lis if it has attained finality. Decision under Section 17 (3) does not dispose of the suit finally but it puts an embargo upon the tenant in the process of exercise of his defence in the suit. (21.) IT is no doubt that the principle of res judicata is a procedural provision and it debars a Court from determining the lis if it has attained finality. Provision of the principle of res judicata has been introduced in the C. P. C. only to restrict the issues in a suit finally decided by a competent Court in between the same parties over the same subject matter and under the same title, cannot be re-agitated in a subsequent suit. Here, the matter-in-issue is not of that kind which leads to be debarred under the principle of res judicata. In this connection, the decision reported in AIR 1971 Supreme Court 2355 (Supra) and relied upon by Mr. Ganguly, may be referred wherein the Honble apex Court, in course of coming to the decision therein has referred to a decision of Rankin, C. J. in a decision reported in ILR. 56 Cal. 723 : (AIR 1928 Cal. 777) in Tarini Charan Bhattacharjees case wherein His Lordship observed- "the object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or re-contesting that which has been finally decided. " (22.) IN this connection, the Honble Apex Court in the said decision observed-"if by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. " (23.) TO protect his contention further Mr. Ganguly referred to a decision reported in AIR 1987 Supreme Court 1010 (M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr.) wherein the Honble Apex Court observed that the provision of Section 17 (3) of the Act is not a mandatory provision but it is directory. " (23.) TO protect his contention further Mr. Ganguly referred to a decision reported in AIR 1987 Supreme Court 1010 (M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr.) wherein the Honble Apex Court observed that the provision of Section 17 (3) of the Act is not a mandatory provision but it is directory. In the said decision, the Honble Apex Court observed-"even if the proviso is viewed in a limited sense as being attracted only to those cases where there has been full and complete compliance with the provisions of sub-s. (I) or (2) or (2a) of Section 17 and will not apply to a case as the one on hand, the appellant cannot be denied relief because the words "shall order the defence against delivery of possession to be struck out" occurring in Section 17 (3) have to be construed as a directory provision and not a mandatory provision as the word "shall" has to be read as "may". Such a canon of construction is warranted because otherwise the intendment of the Legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordinance and the amending Act will stand deprived of them. " (24.) MR. Ganguly by referring the above decision submitted that the ground for striking out the defence of a tenant as provided in Section 17 (3) of the Act is subject to discretion of the Court since the provision of Section 17 (2a), the Court has got the discretion to extend the time specified in sub-Section (1) or sub-Section (2) for the deposit of payment or any amount referred to therein. (25.) IT is a fact that when any provision of the procedure is termed as directory and the Act gives a discretion upon the Court to extend the time of deposit or payment of rent by the tenant in a pending suit, and since it is not a mandatory provision in Section 17 (3), the principle of res judicata in strict sense cannot be applied in the present application in view of the decision reported in air 1971 Supreme Court 2355 (Supra). (26.) THE decision of striking out of the defence of the petitioner cannot be treated as final or last order, conclusively deciding the issue involved. (26.) THE decision of striking out of the defence of the petitioner cannot be treated as final or last order, conclusively deciding the issue involved. In this connection, a decision reported in 64 Cal WN 938 may be referred to wherein it has been observed by this Court that-"plain meaning of the word "final" is, the last or conclusive and by that meaning the test of finality would be whether the order disposed of the rights of the parties conclusively, so far as that Court is concerned. " (27.) IN the same decision this Honble Court further observed that-"therefore, true meaning of "final order" in Article 133 and Section 109. C. P. Code is firmly established by the decision I have already referred to of the Federal Court of India in Md. Amin Brothers Case where the judgment was delivered by B. K. Mukherjea, J. and there is no going back upon it. Even in a recent decision Lahiri, C. J. has adhered to that meaning of the words "final order" in his judgment in the case reported in 64 Cal WN 52. The words "final order" therefore, mean "an order which finally determines the point in dispute and brings the case to an end. " (28.) IN reference to the discretion in respect of the application of principle of res judicata in the present application in view of the decision in Civil Rule no. 732 of 1983 of a Revisional Court of this Court earlier, I am of the view that since the petitioner has not prayed for setting aside the order of striking out the defence and has simply prayed for holding the referred deposits of advance rent earlier as valid deposit, the said earlier decision will not operate as res judicata in the present application. (29.) NOW, the other question may be taken up, as to whether the deposit of monthly current rent in advance made by the petitioner in the eviction suit can be treated as valid deposit as claimed by the petitioner in his application under Section 151 of the Code of Civil Procedure which is the subject matter of the present application though this point was discussed by another Revisional court of this High Court in an earlier Civil Rule in disposing of an application under Section 17 (3) of the Act which was rejected by the learned Trial Court. (30.) PROVISION of Section 17 (1) of the Act puts an imperative obligation upon the tenant in a suit or proceeding for ejectment to pay or deposit, at first, all arrear rents on appearance upon service of summons upon him within one month thereof, and also to continue to pay or deposit such amount equivalent to rent, month by month, by 15th of each succeeding month. This provision has been introduced by the Legislature to give protection to the tenant from being evicted on the ground of default of payment of rent and to protect his interest by this process of deposit of current rent, month by month, during the pendency of the suit. The object behind the provision of Section 17 (1) undoubtedly is to keep the tenant in a safe enclosure and to protect his interest of not being evicted on the ground of default. West Bengal Premises Tenancy act, 1956 has come out as a special statute for the benefit and protection of the tenant and its construction is so done to favour a tenant from being evicted at the whims of the landlord. (31.) NOW, the provision of Section 17 (1) and Section 17 (3) of the Act are to be consulted with in respect of the provisions made therein for deposit of amount equivalent to rent, (month by month), so as to decide whether the deposit of rent for any month becomes invalid. (32.) THE latter part of Section 17 (1) provides that the tenant shall continue to deposit or pay, month by month, by 15th of each succeeding month a sum equivalent to rent at that rate. On the other hand, provision of Section 17 (3) provides that if the tenant fails to deposit or pay any amount referred to sub-Section (1) or Sub-Section (2), within the time specified therein or within such extended time as may be allowed under clause (a) of Sub-Section (2a), the Court shall order the tenant against delivery of possession to be struck out or, otherwise to treat the said deposit beyond the prescribed period as invalid deposit. (33.) IN his application under Section 151 of the Code of Civil Procedure, the present petitioner prayed before the learned Trial Judge to treat the deposit of rents for the months of December, 1981, February, 1982, April, 1982, september, 1982 and November, 1982 to be valid deposits. (33.) IN his application under Section 151 of the Code of Civil Procedure, the present petitioner prayed before the learned Trial Judge to treat the deposit of rents for the months of December, 1981, February, 1982, April, 1982, september, 1982 and November, 1982 to be valid deposits. Admittedly, the rents for those months were deposited in the same month, in each case, along with rent of the previous month which fallen due by the 15th of the said current month. The plain reading of Section 17 (3) goes to show that the tenant is penalized with the striking out of his defence in the event of his non-compliance with the provision of deposit of rent, month by month, within the stipulated period by the 15th of each succeeding month. A tenant becomes a defaulter or his deposit may be treated as invalid if such deposits are made after expiry of the time specified in Section 17 (1). Rent for a month may be deposited on any day prior to the date on which it falls due or by 15th of the succeeding month. Provision of Section 17 (1) has specified the time limit by which rent, month by month, is to be paid or deposited but it has not specified any time prior to the specified time limit as the time before which it cannot be treated to be due. Upper limit, therefore, is unlimited and if a tenant deposits any rent in advance before the expiry of the penalty-mate day, should be treated as valid deposit and his right to proceed in the pending suit for eviction cannot be curtailed by treating any advance payment of rent as invalid deposit. (34.) THE words, "month by month", should not be interpreted in the way that it should be for that month only. It has already been stated the payment or deposit of current rent is an obligation on the part of the tenant and its a benefit for the landlord so that the interest of the landlord is also protected in respect of regular flow of the amount equivalent to rent from the tenant during the pendency of the suit. (35.) MR. It has already been stated the payment or deposit of current rent is an obligation on the part of the tenant and its a benefit for the landlord so that the interest of the landlord is also protected in respect of regular flow of the amount equivalent to rent from the tenant during the pendency of the suit. (35.) MR. Ganguly submitted that the rents for the above stated months were made in advance only to keep the petitioner himself in a safer side so that he should not be subjected to the penalty for any invalid deposit and this deposit of one months rent in advance should not prejudice the opposite parties being the landlords at least in course of the pendency of the suit since the right of the landlord in getting the monthly rent is protected in course of the pendency of the suit. (36.) THE words, "month by month", do not restrict the tenant to deposit one months rent only at a time within the specified time limit of 15th day of the succeeding month since there is no specific direction in the Statute that a rent for the current month is to be deposited only within the period of time that the starting point for the deposit of such rent fixing a concluding day of the 15th of the succeeding month. If the tenant deposits rent for any month by 15th of the due month it cannot be stated that it is an invalid deposit or the tenant is default in depositing of current rent. (37.) A "defaulter" is a person who does not comply with the direction given to him in this respect by some act within the specific period. In the case of a tenant, Section 17 (1) of the Act directs him to continue to deposit or pay an amount equivalent to rent, month by month, by the 15th day of the succeeding month. If he fails to deposit rent for any month by that stipulated date, he becomes a "defaulter" and such deposit of payment of rent beyond the 15th day of the succeeding month may be called an "invalid deposit". If he fails to deposit rent for any month by that stipulated date, he becomes a "defaulter" and such deposit of payment of rent beyond the 15th day of the succeeding month may be called an "invalid deposit". But when such tenant does not deposit or pay such amount equivalent to rent during the pendency of an eviction suit, beyond such stipulated date of 15th day of the succeeding month, but does it well ahead of the said date why he should be called a "defaulter" or his such deposit/deposits be called invalid deposit. If a tenant remains vigilant by going on to deposit or pay current rent, month by month, well ahead of the due date, why he will be penalized with the blame of having done some invalid deposits. Normally, to call a deposit or payment of rent to be valid, it should be so done on or before the due date as specified in the Statute. Concluding part of the provision of Section 17 (1) of the West Bengal premises Tenancy Act has got no ambiguity. (38.) THE principle of natural justice should favour a tenant who makes timely deposit of payment of rent in compliance with the provision of the Law in that regard and he should not be denied with the justice in that regard even if he makes some advance deposit to keep him on safer side for the compliance of the direction of the law in that regard. (39.) IN the present case, the deposit of rent for the month of December, 1981, February, 1982, April, 1982, September, 1982 and November, 1982 were to be deposited by the petitioner within 15th day of January, 1982, March, 1982, May, 1982, October, 1982 and December, 1982 respectively. It is not the case of the opposite parties that those deposits were made beyond the 15 day of the said due months and each case those deposits were made well ahead of the penalty-mate day of 15th succeeding month of due of those rents. (40.) IN this connection, Mr. Ganguly, the learned Advocate for the petitioner referred to a decision reported in AIR 1986 Supreme Court 1019 wherein the Honble Apex Court observed - "one cannot conceive of a greater judicial sin than the sin of treating the oppressor and the oppressed on a par. (40.) IN this connection, Mr. Ganguly, the learned Advocate for the petitioner referred to a decision reported in AIR 1986 Supreme Court 1019 wherein the Honble Apex Court observed - "one cannot conceive of a greater judicial sin than the sin of treating the oppressor and the oppressed on a par. Or that of rewarding the oppressor and punishing the oppressed whilst administering the law designed to protect the oppressed. We would be guilty of committing this sin if we uphold the view that the tenant who advances a loan to the landlord in order to secure the tenancy (in violation of the prohibition to do so embodied in the statute enacted for his benefit) is in pari delicto. And that the Court will not assist the tenant in claiming adjustment of the loan amount against the landlords claim for rent. " (41.) FURTHER, in reference to the provision reference of decision reported in AIR 1987 Supreme Court 1010 (Supra) by Mr. Ganguly, it has been observed that the provtsion of Section 17 (3) of the Act is not mandatory but directory one, the deposit made well within the stipulated time limit should not be treated as invalid deposit. In my view, the learned trial Court was not proper to refuse the application under Section 151 of the Code of Civil Procedure though the learned trial Court expressed its inability to give a positive answer to the said application by disposing of that application in favour of the present petitioner in view of the decision of the Honble High Court in previous revisional application. (42.) IN conclusion, I am of the view that the deposits made for the months of December, 1981, February, 1982, April, 1982, September, 1982 and november, 1982 must be treated as valid deposits and with that view the present revisional application should be disposed of in favour of the present petitioner. (43.) IN the facts and circumstances, the present application is allowed. (44.) HOWEVER, the learned trial Court is directed to dispose of the suit concerned within a period of four months after the long (Puja) Vacation, 2007 since the suit is of the year 1981 and is sufficiently old. I pass no order as to costs.