SUDHINDRA MOHAN GUHA, J.

( 1 ) THIS application for Revision is directed against the order dated 8th January 1977 passed by Shree S. C. Chakravorty, the learned Judge, 7th Bench, City Civil Court, Calcutta in Ejectment Suit No. 5 of 1974 allowing an application under Section 17 (3) of the West Bengal premises Tenancy Act 1956 and striking out the defence of the petitioner against ejectment.

( 2 ) THE opposite party Sm. Mani Mala Sadhu instituted a suit being Ejectment Suit No. 5 of 1974 against the petitioner M/s. Sen and Company for recovery of possession of two rooms on the ground floor of the premises at 130, Balaram Dey Street, Calcutta. The tenancy was being held on a rental of Rs. 34. 88 paise inclusive of electric charges. After appearance the petitioner filed three applications-- one under Section 17 (1) praying for permission to deposit the current rent since April 1974, the second application was filed disputing the relation of landlord and tenant, rate of rent and the amount in arrear, and the third one was filed praying for deposit of the amount in arrear, found by the Court by easy instalments. All the three applications were allowed and the petitioner was directed to pay or deposit the arrear amount of rent at the rate of Rs. 70 per month and also to pay or to deposit the current rent month by month within the 15th day of each succeeding month.

( 3 ) IN pursuance of the said order and in agreement between the parties the petitioner regularly paid the instalments as well as the current rent month by month to the learned Advocate for the plaintiff opposite party on proper receipts. But the rent for the month of February 1976 and that for the month of March 1976 had been paid on 25-3-76 and 16-4-76 respectively to the learned Advocate for the opposite party who granted receipts for the same and filed joint petitions in Court acknowledging the said payments. But in spite of acceptance of the aforesaid payments the opposite party filed an application under Section 17 (3) of the Act for striking out the defence of the petitioner against ejectment. By an order dated 8-1-77 the application under Section 17 (3) of the Act was allowed.

( 4 ) ON perusal of the receipts for the months of February and March 1976 it is found by the learned Judge that acceptance had been made without prejudice. Mr. Barun Kumar Roy Chow-dhury, the learned Advocate for the petitioner points out that the words "without prejudice" were also on receipts for the payments which had been made within time, and as such those words in the receipts carried no sense and were of no importance. Mr. Tapas Kumar Mu-kherji, the learned Advocate for the opposite party as to the import of such words refers to the decision in the case of Umesh Jha v. The State, reported in AIR 1956 Pat 425, wherein it is held that the words "without prejudice" import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not of themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid.

( 5 ) NEXT it is contended by Mr. Roy Chowdhury that the words 'without prejudice' might be in the receipts granted to the petitioner but the aforesaid payments were certified by the plaintiff opposite party by filing joint petitions in Court without any objection and in the circumstances the learned Court below failed to exercise its jurisdiction in not holding that it was no longer open to the plaintiff to complain of such belated payments. It would appear that it was argued that the plaintiff must be deemed to have waived his right to make such application accrued to her under Section 17 (3) of the Act, when she had accepted the rent and certified such payments to Court without objection Reliance was placed in the decision of a Division Bench of Patna High Court in the case Ranchood Lodha v. Madhabi Kanji, reporte

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