ARUN K. MUKHERJEA, J.

( 1 ) THIS appeal has come up for hearing and disposal before this Special Bench upon a reference made by A. N. Ray and S. K. Mu-kherjca, JJ. under Chapter II, Rule 1 (ii) of The Appellate Side Rules of this High Court. The facts and circumstances under which this appeal arises are briefly as follows :-The defendant Jamuna Prasad Chowrasia was a monthly tenant under the plaintiff Kishorilal Poddar in respect of a shop-room on the ground floor of premises No. 31b, Banstala Gali, Calcutta. The rent that the defendant used to pay was Rs. 24. 00 per month according to the Hindi Calendar month commencing from Badi 1 to Sudi 15 of each month. The plaintiff terminated the defendant's tenancy by a notice to quit dated Magh Badi 2,2020 S. Y. corresponding to 18 December, 1963. The plaintiff alleges that the defendant had defaulted in payment of rent for more than four months within a period of 12 months since the month of Shravan 2020 S. Y. and that the defendant was not entitled to any protection from eviction under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act of 1956 ). The defendant did not quit the premises upon determination of the tenancy and the plaintiff filed a suit against him for ejectment in the City Civil Court.

( 2 ) THE defendant contested the suit and in his written statement contended among other things that he was not a defaulter in payment of rent as alleged by the plaintiff. The defendant alleged that on 15 January, 1964 he had paid to the plaintiff a sum of Rs. 180/- in Jasidih at the rate of Rs. 30/- per month as rents inclusive of electric charges for the months from Shravan 2020 S. Y. to Pous 2020 S. Y. and that the plaintiff had promised to issue rent receipts for this payment on his return to Calcutta by the middle of February, 1964. The defendant further alleged that he had paid the rent of Rs. 24/- and a sum of Rs. 6/- as electricity charges to the plaintiff on 12 February 1964 at the Gaddi of the plaintiff at Basak Street, Calcutta.

( 3 ) THE following issues were framed by the learned trial Judge for determination :-- (1) Is there the relationship of landlord and tenant between the plaintiff and the defendant, as made out in the plaint? (2) Is the alleged notice duly served upon the defendant? If so, is the same legal, valid and sufficient in law as required under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and Section 106, Transfer of Property Act? (3) Is the defendant defaulter in payment of rent on 4 occasions within a period of 12 months by making no payment from Shravan 2020 S. Y. as alleged? Is the defendant's plea of payment true? (4) Is the plaintiff entitled to a decree in ejectment as prayed for?

( 4 ) AFTER considering the evidence adduced by both parties in this suit the learned trial Judge found in favour of the plaintiff on all the issues and granted a decree of ejectment against the defendant. The defendant thereupon came on appeal from that judgment before this High Court and the appeal was heard by a Division Bench consisting of A. N. Ray and S. K. Mukherjea, JJ. It was contended on behalf of the appellant before the aforesaid Division Bench that the learned trial Judge's finding on fact rejecting the defendant's story about payment of rent and holding that the defendant was a defaulter in payment of rent for more than four months within a period of 12 months was wrong. Further, during the hearing of the appeal an application was made on behalf of the appellant before the Appellate Court that various deposits made by the appellant-should be taken into consideration by the Appellate Court by way of fresh evidence. It was alleged in that application that the1 appellant had, within one month from the date of service of summons of the ejectment suit, filed two applications before the learned trial Judge under Sub-section (1) and Sub-section (2) respectively of Section 17 of the Act of 1956. Reference was made in t

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