Under the West Bengal Premises Tenancy Act, 1956, a tenant who defaults in payment of rent for more than four months in the same calendar year is not entitled to protection from eviction. Deposits made with the Rent Controller cannot cure the defaults unless they are preceded by a proper tender to the landlord.

( 1 ) THIS is an appeal against a judgment and order dated 30th April, 1960, of the 5th Bench of the City Civil Court by which a decree of ejectment was passed against the defendant.

( 2 ) THE short facts of the case are as follows: The defendant was a tenant under the plaintiff in respect of one shop room on the ground floor of premises No. 244, Chittaranjan Avenue, Calcutta. The tenancy was according to the English calendar month. By an order the 10th August, 1957 the Third Judge of the Presidency Small Causes Court at Calcutta fixed the standard rent of the premises in suit at Rs. 39/9/-per month from July, 1949 upto March, 1952 and at Rs. 39/11/- (i. e. Rs. 39. 69 np) with effect from the ,1st April 1952. According to the plaintiff, the defendant continued to pay rent for the months of July, August, September and October, 1957 at the rate of Rs. 38. 50 np. though before the dates of deposits of these rents the rent had been standardised at a higher rate. It was only on the 21st December, 1957 that the defendant paid Rs. 67. 25 np which, according to the defendant, included rent at the rate of Rs. 39. 69 np. for the month of November, 1957 as well as an excess amount so calculated as to wipe out the earlier arrears. The plaintiff claims that the defendant failed to pay or deposit the standard rate of rent i. e. Rupees 39. 69 np for more than four months in the same calendar year and is not, therefore, entitled to the benefits of protection from eviction under the West Bengal Premises Tenancy Act, 1956. A notice of ejectment dated 24th March, 1958 was served on the defendant asking the defendant to vacate the premises on the expiry of the last date of April, 1958. The defendant having failed to vacate the premises in terms of the said notice, the plaintiff filed the present ejectment suit.

( 3 ) THE main defence of the defendant as it appears from the written statement is as follows: The plaintiff was entitled to the increased amount only after the 10th August, 1957. Calculating from and after that date, rents at higher rate were liable to be deposited only for September and October. There was, therefore, default only in respect of those two months. The defendant admits that in respect of November also there was technically a short deposit. Thereafter the rents have been paid at proper rates.

( 4 ) ON the basis of these pleadings the following issues were settled for determination by the learned trial Judge :--1. Did the defendant default in payment of rent for more than 4 months as alleged in paragraphs 4 and 5 of the plaint? What was the rate of rent prevalent at the time the rents for the months from July 1957 to October, 1957 deposited in the office of the Rent Controller? 2. Was the Municipal taxes a part and parcel of the rent payable by the defendant to the landlord in respect of the premises in suit? 3. Is the defendant's tenancy duly determined by notice to quit? Is the same legal valid, sufficient and operative in law? 4. To what relief is the plaintiff entitled?

( 5 ) THE learned trial Judge held that issue No. 2 was redundant. With this we agree unhesitatingly. The defendant had not challenged the fixation of the standard rent by the Appellate Judge. Not having done so in appropriate proceedings it is no longer open to the defendant to come and do so collaterally by contending in this suit that the legal rent for the suit premises was not what had been fixed by the Appellate Judge on the 10th August, 1957. We are not sitting here in appeal from the order by which rent had been standardised. We, cannot, therefore, go into that question at this stage. The question whether municipal taxes are a part and parcel of the rent payable by the defendant to the landlord and the question whether municipal taxes have been included within the rent by the Appellate Judge who standardised the rent are questions with which we have no concern whatsoever in this suit. The learned trial Judge was, therefore