Case: Kaluram Onkarmal And Another Vs. Baidyanath Gorain

1. Appellant No. 1 Kaluram Onkarmal, was let into possession of the premises described as holding No. 182 H, G. T. Road, Asansol as a monthly tenant under Harbhajan Singh Wasal who was the owner of the said premises. The rent agreed to be paid was Rs. 35 per month payable accruing to the English Calendar. It appears that in 1953, the Calcutta National Bank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage. In the said suit, a preliminary decree was passed and in due course, it was followed by a final decree. During the proceedings of the said suit. Mr. K. K. Ghose was appointed Receiver of the mortgaged properties, including the premises in the present suit. On February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidynath Gorain, purchased them. The said sale was confirmed by the Calcutta High Court on March 1, 1960. That is how the respondent became the owner of the suit premises along with other properties under mortgage. After he acquired title to the suit premises in this manner, the respondent informed appellant No. 1 about the same by his letter dated the 2nd April, 19602. On December 11, 1961, the respondent sued appellant No. 1 and appellant No. 2 Kalurarn Bajranglal in the First Court of the Munsif at Asansol for ejectment. He claimed vacant possession of the premises let out to appellant No. 1 on several grounds. He urged that he reasonably required the premises for rebuilding them after demolishing the existing structure. According to him, the existing structure had become very old and was in a dilapidated condition. He also alleged that appellant No. 1 had unlawfully sublet the suit premises to appellant No. 2, and that he had failed to pay or deposit the rents for the last three years in accordance with law3. The claim for ejectment thus made by the respondent was disputed by appellant No. 1 on several grounds. Appellant No. 1 denied that the respondent required the suit premises for rebuilding, and also disputed his allegation that he had sub-let the said premises unlawfully. In regard to the averment made by the respondent that appellant No. 1 had failed to pay or deposit the rents due for the last three years, appellant No. 1 made a detailed denial. He urged that the rents had been regularly paid to the owner in time before August, 1960, and he pleaded that since the month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the House Rent Controller, Asansol, from month to month. It was his case that notice had been served on the owner in respect of these deposits from month to month as provided by S. 21(3) ofthe west Bengal Premises Tenancy Act, 1956 (Act XII of 1956) (hereinafter called the Act). The written statement further averred that the deposit of the monthly rent continued to be made regularly under S. 21 and that the rent for March, 1962 had been duly deposited on April 10, 1962. This written statement was filed on April 11, 19624. During the pendency of this suit, the respondent made an application under S. 17(3) of the Act and claimed that the defence of appellant No. 1 against delivery of possession should be struck out, because he had failed to deposit on pay the amount in Court as required by S. 17(1) of the Act. This application was strenuously opposed by appellant No. 1 on the ground that S. 17(3) could not be invoked against him in view of the fact that he had been depositing the rent from month to month under S. 21, and he urged that the deposit of rent thus made by him amounted to payment of rent by him to the respondent under S. 22(3) and, therefore, no default had been committed by him at all. This dispute raised the question about the true scope and effect of the provision of S. 17 (3) and S. 22(3) of the Act. The learned trial Judge held that notwithstanding the fact that appellant No. 1 had been depositing the rent from month to month under S. 22 with the Rent Controller, having regard to the provisions contained in S. 17(1) his failure to deposit the relevant amount in Court in curred the liability to have his deference struck out under S. 17(3). In coming to this conclusion, the learned Judge followed a decision of the Division Bench of the Calcutta High Court in Abdul Majid v. Dr. Samiruddin, 62 Cal W. N. 555: (AIR 1958 Cal 593  ). Having held that S. 17(3) applied, the learned Judge directed that the defence raised by appellant No. 1 against the claim of the respondent for delivery of possession of the suit premises must be struck out5. This order was challenged by both the appellants by preferring a revision application before the Calcutta High Court. Before this revision application reached the stage of hearing, the question raised by it had already been concluded by a majority decision of the Special Bench of the Calcutta High Court in Siddheswar Paul v. Prakash Chandra Dutta, AIR 1964 Cal 105   (SB). The learned Single Judge who heard this revision application was naturally bound by the said majority decision, and applying the said decision, he held that the order passed by the learned trial judge striking out the defence of appellant No. 1 under S. 17(3) of the Act was justified. It is this order which is challenged by Mr. N. C. Chatterjee on behalf of the appellants in the present appeal which has been brought to this Court by special leave. Mr. Chatterjee contends that the majority decision of the Special Bench in Siddheswar. Pauls Case. AIR 1964 Cal 105   (SB) (supra) is erroneous and has proceeded on a misconstruction of the true scope and effect of the two relevant sections of the Act--Ss. 17 and 22. That is how the short question which falls for our decision in the present appeal is: what is the true scope and effect of the provisions prescribed by Sections 17 and 22 of the Act? It appears that the Special Bench in Siddheswar Pauls case, AIR 1964 Cal 105   (SB) was divided on this issue: the three learned judges have taken the view that S. 22(3) does not apply to cases falling under S. 17(1), whereas two other learned judges have come to the conclusion that if a tenant had made a deposit with the Rent Controller to which S. 22 (3) applies section 17 (3) cannot be invoked against him. The separate judgment delivered by all the learned Judges who constituted the Special Bench have dealt with the point at great length and each one has subjected the said two provisions to a close analysis and examination. In the present appeal, we propose to consider the matter in a broad way and will confine ourselves to some general considerations which flow from the construction of the two relevant provisions and which, in our opinion, support the view taken by the majority of the Judges in the Special Bench6. Before addressing ourselves to the main point in dispute between the parties, it is necessary in refer broadly to the scheme of the Act and its main provisions. The Act was passed in 1956 and has superseded the earlier Act XVII of 1950. The Act consists of seven Chapters. Chapter 1 deals with definitions, Ch. 11 contains provisions regarding rent; Ch. III covers suits and proceedings for eviction; Ch. IV has reference to deposit of rent; Ch. V considers the question of appointment of the Controller and other Officers, their powers and functions. Ch. VI provides for appeals, revision and review; and Ch. VII deals with penalties and miscellaneous provisions. Section 2 (b) defines a "Controller ; S. 2 (c) defines "fair rent" ; S. 2 (d) defines a "landlord"; and S. 2 (h) defines a "tenant". A tenant, according to S. 2 (h), includes any person by whom or on whose account or behalf, the rent of any premises is , or but for a special contract would be payable and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. Section 4 (1) provides that a tenant shall, subject to the provisions of the Act, pay to the landlord: (a) in cases where fair rent has been fixed for any premises, such rent; (b) in other cases, the rent agreed upon until fair rent is fixed. Section 4 (2) lays down that rent shall be paid within the time fixed by contract or in the absence of such contract, by the 15th day of the month next following the month for which it is payable; and under S. 4 (3), any sum is excess of the rent referred to in sub-section (1) shall not be recoverable by the landlord. These provisions are in conformity with the pattern which is usually adopted by Rent Restriction Acts. The rest of the provisions of Chapter II deal with the fixation of standard rent: with the said provisions, we are not concerned in the present appeal.

Reasoning:
16. It is true that the complication of the present kind arises where a tenant who has been making a valid deposit under S. 21 is sued for ejectment on grounds other than S. 13(1)(i), and S. 17(1) comes into operation against him. In such a case, if the special provisions prescribed by S. 17(1) apply to the exclusion of section 21 and 22, the fact that a deposit has been made by the tenant can be no answer to the application made by the landlord under S. 17(3)17. In this connection, it is necessary to bear in mind the fact that S. 17(1) is really intended to give a benefit to the tenant who has committed a default in the payment of rent. The first part of S. 17(1) allows such a tenant to pay the defaulted amount of rent together with the prescribed interest in Court within the time prescribed, and such a tenant would not be evicted if he continues to deposit the amount in Court, during the pendency of the suit as required by the latter part of S. 17(1).In our opinion, the scheme of S. 17(1) is a complete scheme by itself and the Legislature has intended that in suits or proceedings to which S. 17(1) applies, the payment of rent by the tenant to the landlord must be made in the manner prescribed by S. 17(1). Even in cases where the tenant might have been depositing the rent with the controller under S. 21, he has to comply with S. 17(1) before the period prescribed by S. 17(1) has elapsed. It is significant that the requirement to deposit the amount in Court comes into force within one month of the service of the writ of summons on the tenant. In other words, appellant No. 1 was justified in depositing the rent even after the present suit was filed until one month from the service of the writ of summons of the suit had elapsed. The Legislature has taken the precaution of giving the tenant one months period after the service of the writ of summons on him before requiring him to deposit the amount in Court. The object obviously, appears to be that when a suit or proceeding has commenced between the landlord and the tenant for ejectment, and the tenant has received notice of it, the payment of rent should be made in Court to avoid any dispute in that behalf18. It is also relevant to remember that in the matter of payment of rent in Court, S. 17(1) has provided that the amount to be paid in future shall be paid by the 15th of each succeeding month, and that means that the date for the payment of the amount has been statutorily fixed which is distinct from the requirement of S. 4. Section 4(2) provides for the payment of rent within the time fixed by contract, but S. 17(1) requires the payment to be made by the 15th of each succeeding month whatever may be the contract. If, according to the contract, rent was payable quarterly or six-monthly, or even annually, S. 17(1) supersedes that part of the contract and requires the rent to be paid, month by month, by the 15th of each succeeding month19. The position under sections 21 and 22 is, however, substantially different on this point. Section 21(1) in terms requires the deposit to be made within the time referred to in S. 4, and that means where there is a contract made by the parties in relation to the time for the payment of rent, it is on the contracted date that the rent has to be deposited under S. 21. The scheme of the three clauses of S. 22 is clearly integrally connected with S. 21. These clauses deal with deposits made under S. 21.In fact, it would be difficult to read S. 22(3) independently of S. 22(1) and (2); all the three clauses of S. 22 must be read together, and so, the time for making the deposit for the purpose of S. 22(3) would be the time prescribed by contract and not the statutory time provided by S. 17(1). It is clear that the deposit of rent made before the Controller under section 21 is based on the contractual obligation of the tenant to pay the rent, and he make the deposit because the landlord is not receiving the rent or there is a dispute as to who the real landlord is. On the other hand, the deposit of rent made in Court under S 17(1) is the result of a statutory obligation imposed by the said sub-section; 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 a statutory obligation. That is another feature which distinguishes the deposits covered by sections 21 and 22 from the deposits prescribed by S. 17(1). We arenot impressed by this argument. In our opinion, if the tenant had deposited the rent in Court as required by S. 17(1), he could not be treated as a defaulter under any provision of the Act. Payment in Court made by the tenant under the statutory obligation imposed on him would in law be treated as payment of rent made by him to the landlordIn our opinion, this argument is not well-founded. Section 24 merely indicates that the Legislature thought that it was necessary to make that provision in order to avoid any doubt as to whether acceptance of rent would amount to waiver or not in cases where no proceeding was pending in Court. On the other hand, from the wording of S. 24 it may be permissible to suggest that the Legislature did not think of providing for the consequence of acceptance of rent after the commencement of a proceeding for the recovery of possession because it knew that the said matter would be covered by S. 17(1)22. Besides: S. 22(2) gives some indication that the provisions of S. 22 are not intended to be applied when suits or proceedings have commenced between the landlord and the tenant. It would be noticed that S. 22(2) says that no deposit shall be considered to have been validly, made for the purposes of S. 22(1) if the tenant willfully or negligently makes any false statement in this application for depositing the amount, unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery of possession of the premises from the tenant. This last clause may suggest that the provisions of all the clause of S. 22 may not he applicable after the suit or proceeding has commenced23. As we have already pointed out, the question raised for our decision in the present appeal really centres round the determination of the areas covered by S. 17 on the one hand, and sections 21 and 22 on the other; and though it may be conceded that the words used in the respective sections are not quite clear,on the whole the scheme evidenced by them indicates that the Legislature wanted S. 17(1) to control the relationship between the landlord and the tenant as prescribed by it onec a suit or proceeding for ejectment was instituted and a period of one month from the service of the writ of summons on the defendant had expired. We have carefully considered the reasons given by the two learned Judges who delivered the minority judgments in the Siddheswar Pauls case, AIR 1964 Cal 105   (SB)but we have come to the conclusion that the majority view on the whole correctly represents the true scope and effect of S. 17, as distinguished from Ss. 21 and 22