Judgement

GAJENDRAGADKAR, C.J.I.: 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, 1960.

2. 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 law.

3. 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) of the 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, 1962.

4. 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