ivil Appeal No 671 of 1985
From the Judgment and Order dated 24th August 1984 of the Calcutta High Court in Appeal from Appellate Decree No 263 of 1979
NS Nesargi and Dr Meera Agarwal for the Appellant
Rajan Mahapatra and Rathin Das for the Respondents
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
The matter arises under the West Bengal Premises Tenancy Act 1956  Act  for short
The appellant is the tenant occupying the premises belonging to the respondent 612 on a monthly rent of Rs475
The respondent landlady filed a Suit No TS 8473 on the ground of default of rent for the period from May to August 1973
The appellant deposited the rent and made an application under Section 172 of the Act
The trial court vide its order dated 27274 held that the rent payable is only Rs450 per month and directed the appellant to deposit the balance of arrears of rent within 15 days
At this stage a compromise memo was filed and the suit was compromised in terms of the compromise memo
In the memo it was mentioned that the default was of the first instance and that there would be no decree for khas posses sion
It appears the appellant again committed default in payment of rent from June to December 1975 both months inclusive
The respondent landlady filed Title Suit No 376 after giving notice for eviction
In that suit the appellant filed a petition under Section 172 and Section 172A of the Act
By Order No 26 dated 23377 the trial court decided that the rent payable was Rs475 per month and the appellant was asked to deposit the arrears at the rate of Rs3 15 per month by the 15th of each month commencing from April 1977
The appellant contested the suit and filed a written statement claiming benefit under Section 174 of the Act pleading that it was the first default
The respond ent landlady contested the same stating that no such relief can be granted as per the proviso to the Section since such a relief was already granted once and that at any rate the appellant did not comply with the order while making the deposit of the arrears by 15th of each month and on that ground also no relief can be granted under Section 174
The trial court decreed the suit and the first appellate court as well as the High Court dismissed the appeals pre ferred by the appellant
In this appeal firstly it is contended that though there was delay in paying the installments as per Order dated 23377 passed under Sections 172 and 172A the Court did not order striking off the defence as provided under Section 173 and therefore the delay must be deemed to have been condoned and consequently it must be held that the appellant made the deposits as required by sub sections 2 and 2A of Section 17 and hence he is entitled to claim relief under Section 17 4
The second contention is that the default which is the subject matter of Title Suit No 376 should be treated as the first default inasmuch as the relief granted in Title Suit No 8473 in respect of the default for the period from May to August 1973 was not one under Section 174 since the suit was decreed by way of compromise
When this matter came up before another Bench of this Court consisting of two Hon ble Judges in support of the second contention 613 reliance was placed on Jagan Nath vs Ram Kishan Das  Anr   a decision of three Judges where a similar provision in the Delhi Rent Control Act 1958 was considered in a case where the earlier suit was withdrawn
The Bench felt that the provision was construed in a narrow and technical sense and referred this matter to a Bench of three Judges and that is how this matter has come up before us
All the three courts below have held that the appellant did not make the deposits before 15th day of each month as per the order dated 23377 passed under Section 172 and Section 172A
Unless such a deposit is duly made no relief can be granted under Section 174 of the Act
At this stage it becomes relevant to refer to the provisions of Section 17
Section 17 reads as under section 17
When a tenant can get the benefit of protection against eviction 1 On a suit or proceeding being insti tuted by the landlord on any of the grounds referred to in Section 13 the tenant shall subject to the provisions of sub section 2 within one month of the service of the writ of summons on him or where he appears in the suit or pro ceeding without the writ of summons being served on him within one month of his appearance 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 up to 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 eight and one third per cent per annum from the date when any such amount was payable up to the date of deposit and 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
2 If in any suit or proceeding referred to in subsection 1 there is any dispute as to the amount of rent payable by the tenant the tenant shall within the time specified in sub section  1 deposit in court the amount admitted by him to be due from him together with an applica tion 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 application the Court shall 614 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 ex ceeding one year a preliminary order pending final deci sion 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 prelimi nary order and b having regard to the provisions of this Act make as soon after the preliminary order as possible 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
2A Notwithstanding anything contained in subsec tion 1 or sub section 2 on the application of the tenant the Court may by order a extend the time specified in sub section I or sub section 2 for the deposit or payment of any amount re ferred to therein b having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive or interest required to be deposited or paid under subsection 1 on account of default in the payment of rent permit the tenant to deposit or pay such sum in such installments and by such dates as the Court may fix Provided that where payment is permitted by in stallments such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto 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 615 specified in sub section 1 from the date when such amount was payable upto the date of such order
2B No application for extension of time for the deposit or payment of any amount under clause a of subsec tion 2A shall be entertained unless it is made before the expiry of the time specified therefore in sub section 1 or sub section 2 and no application for permission to pay in installment under clause b or sub section 2A shall be entertained unless it  is made before the expiry of the time specified in sub section 1 for the deposit or payment of the amount due on account of default in the payment of rent
3 If a tenant fails to deposit or pay any amount referred to in 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 or fails to deposit or pay any installment permitted under clause b of sub section 2A within the time fixed therefore the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit
4 If a tenant makes deposit or payment as re quired of sub section 1 sub section 2 or sub section 2A no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the land lord Provided that a tenant shall not be entitled to any relief under this sub section if having obtained such relief once in respect of the premises he has again made default in the payment of rent for four months within a period of twelve months
 The learned counsel for the appellant submits that assuming that there was delay in making the deposit of installments of the rent as per the said order the follow up action by the Court as contemplated under Section 173 namely strik ing off the defence has not been ordered and therefore it should be presumed that the delay was condoned or deemed to have been condoned
We are unable to agree with this submis sion of the learned counsel for the appellant
As already 616 mentioned the appellant filed petition under Sections 172 and 172A pending the present suit disputing the amount of rent and also seeking permission to deposit the rent by way of installments
The rent was held to be Rs475 per month and the same was directed by the Court to be paid by monthly installments before 15th of each month but the appellant did not make the deposits duly
Admittedly no application was made for extension of time
Section 172 provides that if in any suit there is dispute as to the amount of rent pay able the tenant within the time specified shall deposit in court the amount admitted by him to be due from him with an application for determination of rent
Section 172A pro vides for extension of the specified time and also to depos it the rent by way of installment under the orders of the Court
Section 172B lays down that no application for extension of time shall be entertained unless it is made before the expiry of the specified time under sub section1 or sub section 2 and it further lays down that no applica tion for permission to pay in installments under clause b of sub section 2A shall be entertained unless it is made before the expiry of the time specified
Section 173 on which reliance is placed by the appellant lays down that if a tenant fails to deposit or pay any amount referred to in sub section 1 or sub section 2  within the time speci fied therein or within such extended time as may be allowed under clause a of sub section 2A or fails to deposit or pay any installment permitted under clause b of sub sec tion 2A the Court shall order the defence against deliv ery of possession to be struck out shall proceed with the hearing of the suit
We have already noted that no applica tion for extension of time was made
The mere fact that the court has not passed an order striking off the defence as contemplated under Section 173 because of the tenant s failure to deposit within the time specified in the order passed under Sections 172 and 172A does not necessarily lead to a presumption that the time was extended
On the other hand Section 2B which is a mandatory provision laid down that no application for extension of time for the deposit or payment of any amount under clause a of sub section 2A shall be entertained unless it is made before the expiry of the time specified in sub section 1
There fore in the absence of such application it be contended that the Court is deemed to have condoned the delay
That being the position it must be held that the appellant tenant to make the deposit of the rent as per Order No 26 dated 25 377 passed under Section 172 and 172A
Since such a deposit is the condition precedent for seeking relief under Section 174 the appellant who has not fulfilled the same cannot claim the said relief
On this ground alone the orders of the courts below have to be confirmed
In this view of the matter we do not propose to go into the 617 second contention in this appeal
It may be decided in any other appropriate case where the question directly arises
The premises in question is in Calcutta City where accommo dation problem is very acute
Therefore the appellant is given time till 31st March 1991 to vacate the premises on filing the usual undertaking within three weeks from today
The appeal is accordingly dismissed
In the circumstances of the case there will be no order as to costs
TNA Appeal dis missed


Summary:
The respondent the proprietor of an estate derived income from the sale of trees growing in his forests and claimed that it was agricultural income as defined in section 21 of the Indian Income tax Act 1922 and that it was exempt from payment of income tax under section 43viii
The Appellate Tribunal found that the evidence to show that there was plantation by the estate authorities was meagre and unsubstantial that the trees in question must have been of spontaneous growth and that the respondent had failed to establish facts on which he could claim exemption
On reference the High Court took the view that though trees in the forest had not been planted by the estate authorities the latter had performed subsequent operations of a substantial character for the maintenance and improvement of the forest and that the income was therefore agricultural income
It also held that the onus was on the income tax authorities to prove that the income derived from the sale of trees was not agricultural income and that they had failed to show that the income fell outside the scope of the exemption mentioned in section 43viii Of the Act
Held that the High Court erred in placing the burden on the income tax authorities to prove that the income sought to be taxed was not agricultural income
The principle has been well established that where a person claims the benefit of an exemption under the provisions of the Act he has to establish it
177 Commissioner of Income tax vs Venkataswamy Naidu 1956 291TR 529 followed
The question whether the trees were of spontaneous growth or were products of plantation was essentially a question of fact and the finding of the Tribunal on this point was binding on the High Court in a reference under section 661 of the Act
Held further that the income received by the respondent by the sale of trees in his forests was not agricultural income as the trees had not been planted by him and that it was immaterial that he had maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees
The Commissioner of Income tax West Bengal Calcutta vs Raja Benoy Kumar Sahas Roy   explained and followed