K. C. DAS GUPTA, J.

( 1 ) THE petitioner brought the present suit for ejectment on 25-7-1956 against the opposite party Dr. Samiruddjn on the allegation that the latter was occupying premises No. 54/1, Diamond Harbour Road, Kidderpore, Calcutta, as a monthly tenant according to the English calendar under the plaintiff at a rental of Rs. 40/- per month; that this tenancy has been determined by a notice to quit sent by registered post on 18-5-1956; that the plaintiff reasonably required the suit premises for his own use and occupation and for the benefit of the estate by making substantial addition to and alterations of the front portions of the suit premises; that the defendant without the consent and knowledge of the plaintiff converted the main entrance passage into a kitchen causing serious damage. The summons in the suit was served on the defendant on 11-8-1956. The defendant appeared on 24-8-1956 and filed written statement on 18-9-1956. On 4-12-1956, the plaintiff made an application stating that the defendant had neither deposited, in Court nor paid to the plaintiff"the arrears of rent due to the plaintiff at the rate of Rs. 40/- per month (at the rate at which it was last paid) together with interest calculated at the rate of 8 1/3 per cent, per annum and has also failed to deposit in Court or pay Rs. 40/- (being a sum equivalent to rent) month by month according to Section 17 (1) of the West Bengal Premises Tenancy Act 1956". The plaintiff prayed that, in accordance with the provisions of Section 17 (3), the Court should pass necessary orders expunging the defence filed by the defendant and proceed with the hearing of the suit. The defendant's reply to this application was that while the defendant had not deposited the rent in Court, he had been depositing the same before the Rent Controller month by month as before. That the rents were being deposited by the defendant before the Rent Controller under the provisions of Section 21 of the West Bengal Premises Tenancy Act, 1956, was not disputed. The learned Munsif held that this deposit of rent before the Rent Controller amounted in law to payment to the landlord within the meaning of Section 17 of the Act. In this view, he rejected the application that the defendant's defence against delivery of possession should be struck out.

( 2 ) IT was against this order that the present Rule was issued, the plaintiffs contention being that in refusing to strike out the defence, the learned Munsif has refused to exercise jurisdiction that was vested in him by law. When this matter came up before Sen J. , he made an order referring it to the Division Bench in view of the conflicting rulings of this Court, in Gokul Bala Roy v. Sarat Chandra, 61 Cal WN 890 (A) and Ganesh Chandra Gartguli v. Mahahir Prosad, 61 Cal WN 893 (B), on this very question, namely, whether a valid deposit under Section 21 of the Act amounts in law to payment of rent within the meaning of Section 17 (1) and is sufficient compliance with requirement of that section.

( 3 ) IN the first of these cases, Renupada Mukherjee J. held that if rent is deposited in accordance with the provisions of the West Bengal Premises Tenancy Act, 1956,"then under Sub-section (3) of Section 22, a deposit of rent with the Rent Controller should be taken as equivalent to payment to the landlord, as required by Section 17 (1) of the Act. "

( 4 ) IN the other case, Guha Ray, J. , after taking into consideration the previous decision of Renupada Mukherjee J. , was of opinion that when"the deposit instead of being made in Court is made in the Rent Controller's office, that is certainly not a deposit referred to in Sub-section 1 (1) of Section 17, nor can it be said to be a payment to the landlord, for the simple reason that Section 22 has no application to this deposit, because it is not a deposit of rent under Chapter IV. "

( 5 ) FOR a proper decision of the question on which there has been such difference of opinion, it will be conveni

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