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PETITIONER: KALURAM ONKARMAL AND ANOTHER

       Vs.

RESPONDENT: BAIDYANATH GORAIN

DATE OF JUDGMENT: 11/02/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR 1909            1965 SCR  (3)  34

ACT:     West Bengal Premises Tenancy Act. (12 of 1956), ss.  17, 21  and   22--Suit for eviction--Deposit of rent  by  tenant with  Rent  Controller and not in Court during  pendency  of suit--If defence could be struck off under s. 17(3).

HEADNOTE: The  appellant  and  respondent were the  tenant  and  owner respectively  of premises to which the West Bengal  Premises Tenancy  Act,  1956, applied. The respondent filed  a  suit, under s. 13 of the Act,    for the eviction of the appellant on various grounds. The appellant denied the allegations and contested the suit. Before the suit was filed, the appellant was  depositing  the  rent for the premises  with  the  Rent Controller  under s. 21 of the Act, because, the  respondent was not prepared to accept the rent. The appellant continued to deposit the rent with the Rent Controller even after  the suit was filed and the summons was served. Alleging that  as soon  as the suit was filed and a period of one  month  from the  date  of service of the summons on  the  appellant  had expired, it was obligatory on the appellant under s.  17(1), to pay the amount in court and not with the Rent Controller, the  respondent  filed an application for striking  out  the defence  of the appellant in the suit. The  application  was allowed  by  the  trial  court.  The  appellant’s   revision petition  to  the High Court was  dismissed,  following  the decision of a Special Bench of the High Court in  Siddheswar Paul v. Prakash Chandra Dutta, A.I.R. 1964, Cal. 105.     In   the   appeal  to  this Court   it   was   contended that   the majority view in Siddheswar Paul’s case  that  s. 22(3)  does  not apply to cases falling under s.  17(1)  was wrong,  because, the deposit made by the appellant under  s. 21  with the Rent Controller constituted payment of rent  by him  to the landlord. under s. 22(3); and  therefore,  there was  no scope for invoking s. ’17(3) against  the  appellant inasmuch as the basis of s. 17(3) was that the tenant  whose defence was sought to be struck out had committed a  default in the payment of rent.     HELD:  Section 17(1) is a complete scheme by itself  and the legislature has intended that in suits or proceedings to

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which the section applies the payment of rent by the  tenant to the landlord must be made in the manner prescribed by the section.  The legislature wanted the  section   to   control the  relationship  between  the  landlord and the tenant  as prescribed  by it. once a suit or proceeding  for  ejectment was  instituted and a period of one month from the  date  of service  of  the  writ  or summons  on  the  defendant   had expired.  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  the section  had  elapsed, because, as soon as a suit  is  filed against the tenant by the landlord for eviction, s. 17 which is a special provision, comes into operation, and it is  the provisions  of  that special section that  must  prevail  in cases  governed  by  it.  The object  is.  when  a  suit  or proceeding has commenced between the landlord and the tenant for ejectment and the tenant had received notice of it,  the payment  of  rent  should  be made in  court  to  avoid  any disputes  in  that behalf. The majority view  in  Siddheswar Paul’s  case correctly represents the true scope and  effect of s. 17. as distinguished from ss. 21 and 22. [42E;  431-F; 45G-H] 35     Therefore, even the valid deposit made under s. 21 could not  be  permitted  to be pleaded by  the  tenant  when  the application was made against him under s. 17(3). [43C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  875  of 1964.     Appeal  by  special leave from the  judgment  and  order dated  April 10, 1964, of the Calcutta High Court  in  Civil Rule No. 4439 of 1962. N.C. Chatterjee and D. Goburdhan, for the appellants. P.K. Chatterjee and D.N. Mukherjee, for the respondent. The Judgment of the Court was delivered by     Gajendragadkar, C.J. Appellant No. 1, Kaluram  Onkarmal, was let into possession of the premises described as holding No.  182H,  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  according 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, Baidyanath  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, 1960.     On  December IL 1961, the respondent sued appellant  No. 1,  and  appellant No. 2, Kaluram Bajranglal  in  the  First Court  of the Muns if 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

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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 law.     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 sublet the said 36 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  dental.  He  urged  that  the  rents  had  been regularly paid to the owner in tune 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 section 21(3) of the West Bengal  Premises  Tenancy  Act,  1956,  (Act  XII  of  1956) (herematter 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, 1962.     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  or 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 provisions 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 incurred the liability to have his  defence  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(1). 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 out.     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(2). The learned single Judge who heard this (1) 62 C.W.N. 555. (2) A.I.R. 1964 Cal. 105.

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37 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 Paul’s case(1) is  erroneous and  has proceeded on a misconstruction of the  tone,  scope and effect of the two relevant section of the Act--ss. 17  & 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 Paul’s case 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 judgments delivered by all the learned  Judges who constituted the Special Bench have dealh 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 Bench.     Before addressing ourselves to the main point in dispute between the parties, it is necessary to refer broadly to the scheme  of  the  Act and its main provisions.  The  Act  was passed in 1956 and superseded the earlier Act XVII of  1950. The  Act  consists  of  seven Chapters.  Ch.  I  deals  with definitions; Ch. II contains provisions regarding rent;  Ch. III  coveys 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 (1) A.I.R. [1964] Cal. 105. 38 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 in excess of the rent referred to in sub-s. (1) shall not be  recoverable by the landlord. These provisions are in conformity With the

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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.     Chapter  III which deals with suits and proceedings  for eviction  contains s.- 17 which falls  to be  considered  in the  present appeal. Section 13 which affords protection  to tenants  against  eviction, lays down  that  notwithstanding anything  to  the  contrary in any other law,  no  order  or decree  for the recovery of possession of my premises  shall be  made  by any Court in favour of the landlord  against  a tenant  except  on one or more of the grounds  specified  by clauses (a) to (k).  Amongst these clauses, it is clause (i) which deals with a case where the tenant has made default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent  is not  payable  monthly. Section 14 imposes a  restriction  on subletting. Section 15 prohibits a tenant from receiving any sum or  consideration for relinquishment of tenancy; and  s. 16  provides  that  the creation  and  termination  of  sub- tenancies shall be notified in the manner prescribed by  it. That takes us to s. 17. Section 17(1) reads thus :--                     "On   a   suit   or   proceeding   being               instituted  by  the  landlord on  any  of  the               grounds  referred  to  in s.  13,  the  tenant               shall, subject to the provisions of sub-s (2),               within one month of me service of the writ  of               summons on him deposit in Court 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." Section  17(2) deals with cases where there is a dispute  as to the amount of rent payable by the tenant. This  provision is not relevant for our purpose. Section 17(3) provides that if a tenant fails to 39 deposit or pay any amount referred to in sub-s. (1) or  sub- section  (2),  the  Court shall order  the  defence  against delivery  of possession  to be struck out and shall  proceed with  the hearing of the suit. It is under this  sub-section that the impugned order has been passed. Section 17(4)  lays down:--                     "If a tenant makes deposit or payment as               required  by  sub-s.  (1) or  sub-s.  (2),  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 landlord:                      Provide  that  a tenant  shall  not  be               entitled to any relief under this  sub-section               if he has made default in payment of rent  for               four months within a period of twelve months. Reading  s.  17(1)by  itself,  it is   clear  that  when   a landlord  institutes  a suit to recover  possession  of  the

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rent,  though it is not described as such by s. 17(1).It  is thus  clear  that  whatever may be the cause  on  which  the landlord’s  claim for eviction is based, s.  17(1)  provides that  subject  to the provisions of sub-s. (2),  within  one month  of  the service of the writ of summons  on  him,  the tenant  is  required to deposit in Court the amount  in  the manner  prescribed  by it. If he fails to  comply  with  the requirements of s. 17(1), s. 17(3) steps in and’ enables the landlord  to claim  that the defence of the  tenant  against delivery  of  possession should be struck  out.  If  section 17(1) and (3) are read by themselves, there is no doubt that appellant No. 1 has failed to comply with s. 17(1), and  so, s.  17(3)  can  be legitimately  invoked  against  him.  He, however,  contends that m applying s. 17(3). the Court  must take into account not only 40 s.  17(1)but also s. 22(3), and his argument is that  if  he has deposited the amount of rent under s. 21 and the deposit is  otherwise  valid,  then the deposit  itself  amounts  to payment of rent by him to the landlord and as such, no order can  be passed against him under s. 17(3), because, in  law, he  has  not committed a default in the payment of  rent  at all;  and it is this contention which makes it necessary  to consider  the  impact  of the provisions of  s.  22  on  the application of s. 17(3) against appellant No. 1. Let us. therefore, read s. 22 and attempt to decide what  is the  effect of s. 22(3) on cases falling under s. 17(1).  As we  have  already pointed out, s. 22 occurs  in  Chapter  IV which  deals with deposit of rent. This Chapter begins  with s. 21. Section 21 (1) provides that 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. Section 21(2) lays down that the  deposi shall  be  accompanied by an application  which  should  set forth  "the particulars prescribed by clauses .(a)  to  (d). Section  21 (3) requires that the said application shall  be accompanied  by  the prescribed number  of  copies  thereof. Section 21(4) requires the Controller to send a copy of  the application received by him from the tenant to the landlord. Under  s. 21(5). the Controller is authorised to  allow  the landlord  to withdraw the rent deposited with  him.  Section 21(6) empowers the forfeiture of the deposit to  Government, subject to the conditions prescribed by clauses (a) & (b) of the said sub-section. There are three other sub-sections  to s. 21 which are not relevant for our purpose.   That takes us to s. 22 it reads thus:               "(1)  No rent deposited under s. 21  shall  be               considered  to  have  been  validly  deposited               under that section for purposes of clause  (i)               of  sub-section (1) ors. 13, unless  deposited               within  fifteen days of the time fixed by  the               contract  in writing for payment of  the  rent               or,  in  the  absence  of  such  contract   in               writing,  unless deposited within the last day               of the month following that for which the rent               was payable.                     (2) No such deposit shall be  considered               to  have been validly made for the purpose  of               the  said  clause if the tenant  wailfully  or               negligently makes any false statement       in               his  application  for  depositing  the   rent,               unless  the landlord has withdrawn the  amount               deposited before the date of institution of  a

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             suit or proceeding for recovery, or possession               of the premises from the tenant.                     (3)  If the rent is deposited within the               time  mentioned in sub-section (1).  and  does               not cease to be a valid deposit for the reason               mentioned in sub-section (2), the deposit               41               shall  constitute  payment  of  rent  to   the               landlord  as if the amount deposited has  been               valid legal tender of rent if tendered to  the               landlord on the date fixed by the contract for               payment or rent when there is such a contract,               or,  in  the absence of any contract,  on  the               fifteenth day of the month next following that               for which rent is payable."     Mr.  N. C. Chatterjee for the appellants  contends  that the effect of s. 22(3) is that the deposit made by appellant No.  1  shall  beheld to constitute payment by  him  to  the landlord,  and  so, there can be no scope four  invoking  s. 17(3)  against  him  inasmuch/the  basis  of  s.  17(3),  in substance, is that the tenant whose defence is sought to  be struck  out has committed a default in the payment of  rent. The  object of s. 17(1) is to secure the payment of rent  by the  tenant to the landlord and since that object  has  been satisfied by the deposit duly made by appellant No. 1  under s.  21(1), it would be unreasonable to allow s. 17(3) to  be invoked against him. It is common ground that the deposit of rent has been made by appellant No. 1 in compliance with the provisions  of  s. 21 and that it is  not  rendered  invalid under  s.  22(2).  In other words, Mr.  N.C.  Chatterjee  is entitled to urge his point on the assumption that  appellant No.  1 has made a valid deposit under s. 21 and is  entitled to  the benefit of s. 22(3). Can a valid deposit made  under s.  21  be  permitted  to be pleaded by  a  tenant  when  an application  is made against him under s. 17,(3)?;  that  is the  question which arises for our decision in  the  present appeal. The answer to this question necessarily depends upon the  determination  of  the true scope  and  effect  of  the provisions contained respectively in s. 17 and s. 22.     As  a  matter  of common-sense,  Mr.  N.C.  Chatterjee’s argument  does  sound to be prima facie attractive.  If,  in fact,  appellant No. 1 has deposited the rent from month  to month,  it  does  appear harsh  and  unreasonable  that  his defence  should  be  struck out on the ground  that  he  has deposited  the  rent  not in the Court  where  the  suit  is pending, but with the Controller. When appellant No. 1 began to deposit the rent with the Controller, he was justified in doing so; but on the other hand, it is urged against him  by Mr.  P..  K. Chatterjee that as soon as the  suit  is  filed under  s. 17 and the period prescribed by it has expired, it was  obligatory  on appellant No.  1 to pay  the  amount  in Court  and stop depositing it with the Rent  Controller;  in other  words, his failure to pay the amount in Court  incurs the penalty prescribed by s. 17(3) notwithstanding the  fact that  he  may  have  deposited  the  same  amount  with  the Controller.  The requirements of s. 17(1) cannot be said  to be  satisfied  by taking recourse to the  provisions  of  s. 22(3); that in substance is the argument for the respondent. The  question  thus raised for our decision  no  doubt  lies within  a very narrow compass and its answer depends upon  a proper  construction of sections 17 and 22; but, as we  have already indicated, this narrow 42 question  has given rise to a sharp conflict of  opinion  in the Calcutta High Court. It appears plain that appellant No.

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1 finds himself in the present difficult position presumably because,  acting  upon  the view expressed in  some  of  the judgments  of  the Calcutta  High Court, he was  advised  to deposit the rent with the Controller even after he was  sued by the respondent and s. 17(1) began to operate against him. In dealing with this vexed problem, it is relevant to remem- her that the two competing provisions occur in two different Chapters  and apparently cover different fields. Chapter  IV deals  with  the  question of deposit of  rent  in  general, whereas  s.  17 in  Ch III makes a provision for the payment of  the  amount  mentioned by it in Court after  a  suit  or proceeding  has been instituted by the landlord against  the tenant. It is common ground that the Rent Controller is  not Court within the meaning of s. 17(1). Prima facie. a general provision for the deposit of rent prescribed by s. 21  would not  apply  to  special  cases dealt  with  by  s.  17.  The provisions  of s. 21 and 22 which are general in  character, would cover cases which are not expressly dealt with by  the special  provision  prescribed  by s. 17.  In  other  words, though a tenant may deposit rent  with the Controller  under the  provisions  of  ss. 21 and 22,-as soon  as  a  suit  is brought  against  him  by the landlord, s. 17  which  is   a special  provision,  comes  into operation  and  it  is  the provision of this special section that must prevail in cases covered by it: that is the first general consideration which cannot be ignored. Section  17  deals with suits or proceedings  in  which  the landlord  claims eviction on any of the grounds referred  to in  s.  13;  and as we have already  noticed,  s.  13  which affords  protection to the  tenant’s eviction,  permits  the landlord to claim eviction only if he can place his claim on one or the other of the clauses (a) to (k); that is to  say, it is ’only if one or other of the conditions prescribed  by the  said clauses is proved that the landlord can  claim  to evict  his tenant. Default in the payment of rent is one  of these clauses, but there are several other clauses referring to  different  causes  of action on which  eviction  can  be claimed  by the landlord, and it is to all these cases  that s.  17(1)  applies. It is thus clear that normally,  when  a suit  is  brought  for eviction, the tenant  would  have  to comply  with the requirements of s. 17(1). It is only  where owing  to  the refusal of the landlord to  accept  the  rent tendered by the tenant, or where there is a bona fide  doubt as  to  who  is  entitled to  receive  the  rent.  that  the provisions  of s. 21 empower the tenant to deposit the  rent with  the Controller. In a11 other cases, if the tenant  was paying  rent  to the landlord and is faced with a  suit  for eviction,  s. 17(1) will unambiguously apply and the  amount of rent will have to be paid in Court as required by it.  It is  also dear that if a tenant has been depositing the  rent validly  and properly under s. 21, a suit against him  under s. 13(1)(i) cannot be filed. Section 13(1)(i) authorises the landlord to claim eviction of his 43 tenant  on  the  ground that he has made a  default  in  the payment  of  rent  as described by it. But  such  a  default cannot be attributed to a tenant who has been depositing the rent  with the Controller properly and validly under s.  21. Such  a  valid payment  amounts to payment of  rent  by  the tenant  to the landlord under s. 22(3), and so a tenant  who has  been  making  these deposits cannot be  sued  under  s. 13(1)(i).   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.

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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 sections 21 & 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)     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 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 month’s 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 behalf.. 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 44 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 month.    The  position  under  sections  21  &  22  is,   however, substantially  different  on this point. Section 21  (I)  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 clearly is 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

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section 21     is based on the contractual obligation of the tenant to pay the rent,and he makes 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).     Mr. N.C. Chatterjee argued that if the majority view  of the  Calcutta  High  Court is upheld, it may  lead  to  some anomalies.  As an illustration, he asked us to consider  the case of a suit failing under s. 17(1) which ultimately fails and is dismissed. In such a suit, the rent would have to  be deposited  in Court by the tenant as required by  s.  17(1); but if the suit fails, what happens to  the rent? Would  the tenant be treated as being a defaulter, or would the  tenant who is required to make a deposit in Court as required by s. 17(1) be compelled as a precaution, to make another  deposit with the Controller in cases where the .landlord had refused to  accept  rent  before  he flied  the  suit?  We  are  not 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 landlord. 45    Mr. N.C. Chatterjee also relies on the fact that s. 24 in terms provides that the acceptance of rent in respect of the period  of default in payment of rent by the  landlord  from the  tenant shall operate as a waiver of such default,  when there is no proceeding pending in Court for the recovery ,of possession  of the premises. The argument is that where  the Legislature intended to confine the operation of a specified provision  to cases where there is no proceeding pending  in Court,  it  has  expressly so stated.  In  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).    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  wailfully  or negligently makes any false statement in his 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 clauses of s. 22 may not be applicable after the suit or proceeding has commenced.

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   As we have already pointed out, the question raised  for our decision in the present appeal really centers 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 once 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   Paul’s(1)  case,  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 sections 21 and 22.     In  the result, the appeal fails and must be  dismissed. There would be no order as to costs.     (1)A.I.R. [1965] Cal. 105. L/B(D)2SCI--5 46     Before parting with this appeal, however, we would  like to  add  that appellant No. 1 has to submit to  the  penalty prescribed  by s. 17(3) apparently because. acting upon  the opinion  expressed  by  some of the learned  Judges  of  the Calcutta  High Court, he was advised to continue to  deposit the rent with the Controller even after the present suit was filed  against  him. We do not know whether there  are  many other  cases  of the same type. In case  there  are  several other  cases  of this type, that would  really  mean  unjust hardship  against  tenants  who,  in  substance,  have   not committed default in the matter of payment of rent, and  yet would  be exposed to the risk of ejectment by virtue of  the application  of  s.  17(3). In  our  opinion,  such  tenants undoubtedly  deserve to be protected against  ejectment.  We trust  the Legislature will consider this matter and  devise some  means  of giving appropriate relief to this  class  of tenants. Appeal dismissed. 47