Judgment

K.JAYACHANDRA REDDY,J.

(1) 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 on a monthly rent of Rs. 475.00. The respondent landlady filed a Suit No. T.S. 84 of 1973 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 S. 17(2 of the Act. The trial court vide its order dated 27/02/1974 held that the rent payable is only Rs. 450.00 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 possession. 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. 3 of 1976 after giving notice for eviction. In that suit the appellant filed a petition under S. 17(2 and S. 17(2-A) of the Act. By Order No. 26 dated 23/03/1977 the trial court decided that the rent payable was Rs. 475.00 per month and the appellant was asked to deposit the arrears at the rate ofRs 315.00 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 S. 17(4 of the Act pleading that it was the first default. The respondent landlady contested the same staling that no such relief can be granted as per the proviso to the S. 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 S. 17(4. The trial court decreed the suit and the first appellate court as well as the High court dismissed the appeals preferred by the appellant.

(2) IN this appeal firstly it is contended that though there was delay in paying the instalments as per order dated Marc 23/03/1977 passed under S. 17(2 and 17(2-A) the court did not order striking off the defence as provided under S. 17(3 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 Ss. (2 and (2-A) of S. 17 and hence he is entitled to claim relief under S. 17(4. The second contention is that the default which is the subject matter of Title Suit No. 3 of 1976 should be treated as the first default inasmuch as the relief granted in Title Suit No. 84 of 1973 in respect of the default for the period from May to August 1973 was not one under S. 17(4 since the suit was decreed by way of compromise.

(3) WHEN this matter came up before another bench of this court consisting of two Honble Judges, in support of the second contention, reliance was placed on Jagan Nath. v. Ruin Kishan Das (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.

(4) 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 23/03/1977 passed under S. 17(2 and S. 17(2-A). Unless such a deposit is duly made no relief can he granted under S. 17(4 of the Act. At this stage it becomes relevant to refer to the provisions of S. 17. S. 17 reads as under :

"17. When a tenanl can get the benefit of protection, against eviction. (1 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