# KALURAM ONKARMAL AND ANOTHER v. BAIDYANAIB GORAIN

- **Citation:** [1965] 3 S.C.R. 34
- **Court:** Supreme Court of India
- **Decided:** 1964-04-10
- **Case number:** Civil Appeal No. 875 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kaluram-onkarmal-and-another-v-baidyanaib-gorain-3493
- **Pages:** 13

## Headnote

KALURAM ONKARMAL AND ANOTHER
v.
BAIDYANAIB GORAIN
February I I. 1965
IP. B. 0AJENDRA.G;JJK:AR, C.J., M. HIDAYATULLAH, J. C. SHm AND
. S. M. SIKIU, JJ.J
West Be,,gal Premises Tenancv Act. (12 of 1956), ss. 17, 21 and
22-Suit for eviction-Deposit of rent by tenant with Rent Controller
and not im Court during pendencv of imit-If defence could be stn.1ck
off under s. l"/ (3).
·
The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy
Act, 1956, applied. The respondent filed a suit, under s. 13 of the Act,
for the eviction of the appellant on various grounds. The appellant
deni•'d the allegations and contested the suit. Before the suit was
filed, the appeilant was depositing the rent for the premises with
the Rent Controller under s. 21 of the Act, becouse, the respondent
was not prepared to accept the rent. The appellant continued to
deposit the rent with !ht Rent Controller even after the suit wa•
filed and the summons was served. Alleging that as soon as the suit
was filed and a period of one month from the date of service. of
the summons <>n the appellant had expired, it was obligatory on the
appellant under s. 17(1), to pay the amount in court and not with
tl\e Hent Controller, the respondent filed an application for striking
out the defenre of the .appellant in the suit. The application was
allowed by the trial court. The appellant's revision petition to the
'High Court was dismissed, following the decision of a Special B~nrh
of the High Court in Siddheswar Paul v. Prakash Chandra Dutta,
A.LR 1964, Cal. 105.
In the appeal to this Court it was contended that the
majority view in Siddheswar Paul's case that s. 22(3) does not apply
to cases falling under s. 17(1) was wrong, because, the deposit made
by the appellant under s. 21 with the Rent Controller constituted
payment of rent by him to the landlord, under s. 22(3); and therefore, there was no scope for invoking s. 17(3) against the appellant
inasmuch as the basis of s. 17(3) was that the tenant whose defence
was sought to be' strurk out had committed a default in the poyment of rent.
HELD: Section 17(1) is a complete scheme by itself and the legislature1has intended that in suits or proceedings to which the section
applies the payment of rent by the tenant to the landlord must l;e
made in the manner prescribed by the section. The legislature wanted
the section to control the relationsh'p between the landlord
and the tenant as prescribed by it, once a suit or proceeding for
ejectment was instituted and a period of one month from the date
of service of the writ or summons on the defendant had expired.
E\'en in cases where the tenant might have been depositing the rent
with the Controller tinders. 21, he has to comply with s. 17(1) before
the period prescribed by the section had elapsed, because, as coon
us a suit is filed against the tenant by the landlord for eviction. s. 17
\Vhich i_s a spec~al provision, comes into operation, and it is the provisions of that special section that must prevail in cases governed
by it. The object ·is, when a su;; or proceeding has commenced l'etween the landlord and the tenant for ejectment and the tenant had
received notice of it, the payment of rent should be made in court
to avoid any disputes in that behalf. The majority view in Siddheswar
Paul's case correctly represents the true scope and effect of s. 17
as distinguished from ss. 21 and 22. f42E: 431-F; 45G-Hl
A
B
c
D
E
F
G
B
XALU!Wd v. BAIDYAN.A'IH (Gajendragadkar, 0. J .)
36
A
Therefore, even the valid deposit made under s. 21 could not be
permitted to oe pleaded by the tenant when the application waii
made against him under s. 17(3). r43Cl

## Text

KALURAM ONKARMAL AND ANOTHER
v.
BAIDYANAIB GORAIN
February I I. 1965
IP. B. 0AJENDRA.G;JJK:AR, C.J., M. HIDAYATULLAH, J. C. SHm AND
. S. M. SIKIU, JJ.J
West Be,,gal Premises Tenancv Act. (12 of 1956), ss. 17, 21 and
22-Suit for eviction-Deposit of rent by tenant with Rent Controller
and not im Court during pendencv of imit-If defence could be stn.1ck
off under s. l"/ (3).
·
The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy
Act, 1956, applied. The respondent filed a suit, under s. 13 of the Act,
for the eviction of the appellant on various grounds. The appellant
deni•'d the allegations and contested the suit. Before the suit was
filed, the appeilant was depositing the rent for the premises with
the Rent Controller under s. 21 of the Act, becouse, the respondent
was not prepared to accept the rent. The appellant continued to
deposit the rent with !ht Rent Controller even after the suit wa•
filed and the summons was served. Alleging that as soon as the suit
was filed and a period of one month from the date of service. of
the summons <>n the appellant had expired, it was obligatory on the
appellant under s. 17(1), to pay the amount in court and not with
tl\e Hent Controller, the respondent filed an application for striking
out the defenre of the .appellant in the suit. The application was
allowed by the trial court. The appellant's revision petition to the
'High Court was dismissed, following the decision of a Special B~nrh
of the High Court in Siddheswar Paul v. Prakash Chandra Dutta,
A.LR 1964, Cal. 105.
In the appeal to this Court it was contended that the
majority view in Siddheswar Paul's case that s. 22(3) does not apply
to cases falling under s. 17(1) was wrong, because, the deposit made
by the appellant under s. 21 with the Rent Controller constituted
payment of rent by him to the landlord, under s. 22(3); and therefore, there was no scope for invoking s. 17(3) against the appellant
inasmuch as the basis of s. 17(3) was that the tenant whose defence
was sought to be' strurk out had committed a default in the poyment of rent.
HELD: Section 17(1) is a complete scheme by itself and the legislature1has intended that in suits or proceedings to which the section
applies the payment of rent by the tenant to the landlord must l;e
made in the manner prescribed by the section. The legislature wanted
the section to control the relationsh'p between the landlord
and the tenant as prescribed by it, once a suit or proceeding for
ejectment was instituted and a period of one month from the date
of service of the writ or summons on the defendant had expired.
E\'en in cases where the tenant might have been depositing the rent
with the Controller tinders. 21, he has to comply with s. 17(1) before
the period prescribed by the section had elapsed, because, as coon
us a suit is filed against the tenant by the landlord for eviction. s. 17
\Vhich i_s a spec~al provision, comes into operation, and it is the provisions of that special section that must prevail in cases governed
by it. The object ·is, when a su;; or proceeding has commenced l'etween the landlord and the tenant for ejectment and the tenant had
received notice of it, the payment of rent should be made in court
to avoid any disputes in that behalf. The majority view in Siddheswar
Paul's case correctly represents the true scope and effect of s. 17
as distinguished from ss. 21 and 22. f42E: 431-F; 45G-Hl
A
B
c
D
E
F
G
B
XALU!Wd v. BAIDYAN.A'IH (Gajendragadkar, 0. J .)
36
A
Therefore, even the valid deposit made under s. 21 could not be
permitted to oe pleaded by the tenant when the application waii
made against him under s. 17(3). r43Cl
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 875 of
1964.
Appeal by special leave from the judgment and order dated
B
April 10, 1964, of the Calcutta High Co111;t in Civil Rule No. 4439
of 1962.
N. C. Chatterjee and D. Goburdhan, for the appellants.
P. K. Chatterjee and D. N. Mukherjee, for the respondent.
0
The Judgment of the Court was delivered by
Gajendragadkar, C.J. Appellant No .. 1, Kaluram Onkarmal,
was let into possession of the premises described as holding
No. 182H, G.T. Road, Asansol as a monthly tenant under Harbhajan
Singh Wasal who was the owner 't>f the said premises. The rent
agreed to be paid was Rs. 35 per month payable according to the
D English Calendar. It appears that in 1953, the Calcutta Nationat
Bank Ltd. (now in liquidation) sued the owner Wasal on the original
side of the Calcutta High Court on a mortgage. In the said
suit, a preliminary decree was passed and in due course, it was followed by a final decree. During the proceedings of the said suit,
Mr. K. K. lihose was appointed Receiver of the mortgaged proJ!I
perties, including
the ·premises
in the
present
suit.
0n·
February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased
them. The said sale was confirmed by the Calcutta High Court on
March 1, 1960. That is how the respondent became the owner of
the suit premises amng with other properties under mortgage. After
P
he acquired title to the suit premises in this manner, the respondent
intormed appellant No. 1 about the same by his letter dated the
'2nd April, 1960.
On December 11, 1961, the respondent sued appellant No. l,
and appellant No. 2, Kaluram Bajranglal in the First Court of the
G .Munsif at Asansol for ejectment. He claimed vacant possession of
the premises let out to appellant No. 1 on several grounds. He urged
tbat he reasonably required the premises for rebuilding them
after demolishing the existing structure. According to him, the
existing structure had become very old and was in a dilapidated
condit'on. He also a!Jeged that appellant No. 1 had unlawfully
H
sublet the suit premises to appellant No. 2, and that he had failed
to pay or deposit the rents for the last three years in accordance with
law.
The claim for ejectment thus made by the respondent was disputed by appellant No. I on several grounds. Appellant No. l
denied that the respondent required the suit premises for rebuilding, and also disputed his allegation that he had sublet the said
36
SUPREME
COURT
REPORTS
[1965) 3 s.c.:a.
premises unlawfully. In regard to the averment made by the res·
A
pondent that appellant No 1 had failed to pay or deposit the rents
Gue for the last three years, appellant No. 1 made a detailed
denial. He urged that the rents had been regularly paid to the
owner in ftme before August, 1960, and he pleaded that since the
month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the
B
House Rent Controller, Asansol, from month to month. It was his
case that notice had been served on the owner in respect of these
deposits from month to month as provided by section 21(3) of the
West Bengal Premises Tenancy Act, 1956, (Act XII of 1956) (heremafter called 'the Act'). The written statement further averred that a
the deposit of the monthly rent continued to be made regularly
under s. :ll and that the rent for March, 1962 had been duly
deposited on April 10, 1962. This written statement was filed on
AprH 11, 1962.
.
During the pendency of this suit, the respondent made an
application under s. 17(3) of the Act and claimed that the defence
D
ot appellant No. l against delivery of possession should be struck
out, because he bad failed to deposit or pay the amount in Court
as required by s. 17(1) of the Act. This application was strenuously
opposed by appellant No l on the ground that s. 17(3) could not
be invoked against him in view of the fact that he bad been depositB
ing the rent from month to month under s. 21. and he urged that
the deposit of rent thus made by him amounted to payment of
rent by him to the respondent under s. 22(3) and, therefore. no
default had been committed by him at all. This dispute raised the
question about the true scope and effect of the provisions of s. 17(3)
nnd s. ·22(3) of the Act. The learned trial Judge held that notwithp
~tanding the fact that appellant No. I had been depositing the rent
from month to month under s. 22 with tlie Rent Controller, having
regard to the provisions contained in s. 17(1) his failure to deposit
the relevant amount in Court incurred the liability to have hi~
defence struck out under s. 17(3). In coming to this conclusion, the
learned Judge followed a decision of the Division Bench of the
G
Calcutta High Court in Abdul Majid v. Dr. Samiruddin('). Having
held thats. 17(3) applied, the learned Judge directed that the defence
raised by appellant No. l against the claim of the respondent for
delivery of possession of the suit premises must be struck out.
This order was challenged by both the appellants by preferring B
a revision application before the Calcutta High Court. Before this
revision application reached the stage of hearing, the question
raised by it had already been concluded by a majonity decision. of
the Special Bench of the Calcutta High Court in Siddherivar Paul v.
Prakash Chandra Dutta('). The learned single Judge who heard this
(11 62 C.W.N. 555.
\') A.LR. 196-i Cal. 105.
KAlURAM v. B"'IDYANATH (Gajendr111Ja.ikar, c. J.)
37
A revision application w.as naturally bound by the said majority
decision, and applying the sa'd decisicm, he held that the order
passed by the learned trial Judge striking out the defence of appellant No. 1 under s. 17(3) of the Act was justified. It is this order
which is challenged by Mr. N. C. Chatterjee on behalf of the appellants in tlie present appeal which has been brought to this Court by
B
special leave. Mr. Chatterjee contends that the majority decision of
the Special Bench in Siddheswar Paul's case(') is erroneous and has
proceeded on a misconstruction of the tone, scope and effect of the
two relevant section of the Act-ss. 17 & 22. That is how the short
question which falls for our decision in the present appeal is: what
C is the true scope and effect of the prov'sions prescribed by sections
17 and 22 of the Act? It appears that the Special Bench in Si4dheswm: Paul's case was divide:! on this issue; the three learned
Judges "have taken the view that s. 22(3) does not apply to cases
tailing under s. 17(1), whereas two other learned Judges have co.me
to the conclusion that if a tenant had made a deposit with the
D
Rent Controller to which s: 22(3) applies, section 17(3) cannot be
invoked against him. The separate judgments delivered by all the
learned Judges who constituted the Special Bench have dealt with
the point at great length and each one has subjected the said two
provisions to a close analysis and examination.
In the present
appeal, we propose to consider the matter in a broad way and will
E confine ourselves to some general considerations which flow from
the construction of the two relevant prC'Visions and which. in our
opinion, support the view taken by the majority of the Judges in
the- Special Bench.
Before addressing ourselves to the main point in dispute betr
ween the parties, it is necessary to refer broadly to the scheme of
the Act and its main provisions. The Act was passed in 1956 and'
it superseded the earlier Act XVII of 1950. The Act consists of
seven Chapters. Ch. I deals with definitions; Ch. II contains provisio.1s regarding rent; Ch. III cove.rs suits and proceedings for
ev1cllon; Ch. IV has reference ta deposit of rent; Ch. V consideu
G the question of appointment of the Controller and other Officers,
their powers and functions; Ch. VI provides for appeals, revision
and review; and Ch. VII deals with penalties and miscellaneous
provisions. Section 2(b) defines a "Controller"; s. 2(c) defines "fair ,
rent"; s. 2(d) defines a "landlord"; and s. 2(h) define~ a "tenant".
A tenant, according to s. 2(h), includes any person by whom <Yr
II
on whose account or behalf, the rent of any premises is. or but
for a special contract would be payable and also any person contlnumg in possession after the termination of hi~ tenancy, but shall
not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. Section
(') A.LR. [106'·] C•l. 105.
38
SUPREME
COURT
REPORTS
(1965] 3 8.C.R,
HD provides that a tenant shall, subject. to the provisions of the
A
Act, pay to the landlcrd: (a) in cases where fair rent has been
fixed for any premises, such rent; (b) in other cases, the rent
agreed upon until fair rent is fixed. Section 4(2) lays down tha~
rent shall be paid within the time fixed by contract or in the
absence of such contract, by the 15th day of the month next fol<
Jcwmg the month for which it is payable; and undev s. 4(3), any
B
sum in excess of the rent referred to in sub-s. (I) shall not be
recoverable by the landlord. These provisions. are in cohformity
with the pattern which is usually adopted by Rent Restriction Acts.
The rest of the provisicns of Chapter II deal with the fixation of
standard rent; with the said provisions, we are not concerned in ihe
C!
present appeal.
Chapter III which deals with suits and proceedings for eviction contains s.
17 which falls to be considered in the present
appeal. Section 13 which affords protection to tenants against eviction, lays down that notwithstanding anything to the contrary in
any other law, no order or decree for the recovery of possession of I>
any premises shall be made by any Court in favour of the landlord
against a tenant except on one or more of the grounds specified by
clauses (a) to (k). Amongst these clauses, it is clause (i) which
deals with a case where the 'tenant has made default in the payment of rent for two months within a period of twelve months
or for two successi'le periods in cases where rent is not pa¥<1ble
E
monthly. Section 14 imposes a restriction on subletting. Secti6n 15
prohibits a tenant from receiving any sum or consideration foi:
relmquishment of tenancy; and s. 16 provides that the creation
and termination of sub-tenancies shall be notified in the manner
prescribed by it. That takes us to s. 17. Section 17(1) reads thus:--
p
"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 of sub-s (2), within one
month ot me service of the writ of summons on him deposit
in Court er pay to the landlord an amount calculated at
the rate of rent at which it wa.s last paid, for the period
for which the tenant may have made default inciuding the
period subsequent thereto up to the end of the month previous to that in which the deposit or paynient is made together with interest on such amount calculated at the rate
of eight and one-third per cent, per annum from the date
when any such amount was payable up to the date of
deposit. and ·shall thereafter continue to depqsit or p1y,
month by month, by the 15th of each succeeding mcnth
a sum equivalentto the rent at that rate."
~ection 17(2) deals with cases where there is a dispute as to the
amount of rent payable by the tenant. This provision is not relevant
tor our purpose. Section 17(3) provides that if a tenant fails toG
H
ULURAM 'V, BAlDYANATH (Gajendragadkar, c. J.)
39
A deposit or pay any amount Teferred to in sub-s. (]) or sub-section
(2), the Court shall order the defence against delivery of posse~sion
to be struck out and shall proceed with the hearing of the suit. It
is under this sub-section that the impugned order has been pa~sed_
Section 17(4) lays down: -
11
c
" lf a tenant makes deposit or payment as required by
sub-s. (1) or sub-s. (2), no decree or order for delivery of
possession of the premises to the landlord on the ground
of default in payment of rent by the tenant shall be made
by the Court but the Court may allow such costs as it
may deem fit to the landlord :
Provided that a teriant shall not be entitled to anv
relief under this sub-section if he has made default in
payment of rent for four months within a period of
twelve months."
Reading s. 17(') by itself, it is clear that when a landlord
.D
tnstitutes a suit to recover possession of the premises let to his
tenant on any of the grounds referred to in s. 13, the tenant is
required to deposit the amount in· Court as provided by it. It wculd
be noticed that the first part of s. 17(1) enables the tenant who has
committed a default in the payment of rent prior to the institution
ot the suit to make up for that ct:efault and pay the defaulted
B amount as specified by this sub-section. This can be done subject
to the condition that the tenant pays interest on the defaulted
amount calculated in the manner prescribed by it. In regard to the
amount payable in future pending the suit or proceeding, s. 17(1)
provides that the tenant shall thereafter continue to deposit or pay,
p
month by month, by the 15th of each succeeding month a sum
eq1.1ivalent to the rent at that rate. In the Calcutta High Court there
appears to be a difference of opinion as to whether the amount
which is required to be deposited by the tenant is rent or not. We
are proceeding to deal with the present appeal on the footing
that the said amount in law is rent, though it is not described as
G such by s. 17(1).
It is thus clear that whatever may be the cause on which the
landlord's claim for eviction is based, s. 17(1) provides that subject to the provisicns of sub-s. (2), within one month of the service
of the writ of summons on him, the tenant is required to deposit
R
in Court the amount in the manner prescribed by it. If he fails
to comply with the requirements of s. 17(1), s. 17(3) steps in and
enables the landlord to claim
that the defence of the tenant
against dehvery of possession should be struck out. If section 17(1)
and (3) are read by themselves, there is no doubt that appellant No. 1 has failed to comply with 's. 17(1), and so, s. 17(3l can
be legitimately invoked against him. He, however, contends that
in applying s. 17(3), the Court must take into account net only
SUPREME_
COURT
REPORTS
[1965] 3 8.0.11.
s. 17(1) but also s. 22(3), and his argument is that if he has
A
deoosited the amount of rent under s. 21 and the deposit is other•
wise valid. then the deposit itself amounts W payment· of rent by
him to the landlord and as such, no order can be passed agairust
him under s. 17(3), because, in law, he has not committed a default
in the payment of rent at all; and it is this contention which makes
it necessary ta consider the impact of the provisions of s. 22 on
B
the application of s. 17(3) against appellant No. I.
Let us. therefore. read s. 22 and attempt to decide what is
the etfect of .s. 22(3) on cases falling under s. 17(1). As we have
already pointed out, s. 22 occurs in Chapter IV w.hich deal.> with
deposit cf. rent. This Chapter begins with s. 21. Section 21(]) pro- c
v10es that where the landlord does not accept any rent tendered
by the tenant within the time referred to in s. 4, · or where there
1s- a bona fide doubt as to the person or persons to whom the rent
is payable. the tenant may depqsit such rent with the Controller
in the prescribed mrrnner. Secti.on 21(2) lays down that the deposit
snail be acccmpanied by an application which should set forth
D
the particulars prescribed by clauses (a) to \d). Section 21 (3) requires
that the said application shall be accompanied by the prescribed number of copies thereof. Section 21(4) requires the Controller to send a copy of the application received by him from
the tenant to the landlord. Under s.-21(5), the Controller is authorised to allow the lafldlord to withdraw the rent deposited with
B
him. Section 21(6) empowers the forfeiture of the deposit to Government, subject to the conditions orescribed by clauses (a) & (b)
ot the said sub-section. There are three other sub-sections to s. 2 !
. which are not relevant for our purpose.
That takes us to s. 22 it reads thus: -
i'
"(!) No rent deposited _under s. 21 shall be considered
to have been valijl y deposited under th1t section for purposes of clause (i) of sub-section (!) of s. 13, unless
deposited within fifteen days of the time fixed by the
contract in writing for payment of the. rent or, in the
absence of such contract in writing, unless deposited
G
within the last day of the month following that for which
the rent was payable.
(2) No such deposit shall be considered to have been
validly made for the purpose. of the said clause if the
tenaRt wilfully or negligently makes any false statement
B
to his application for depositing 'the rent, unless the landlord has withdrawn the amount deposited before the
date of institution of a suit t>r proceeding for recovery,
or possession of the premises from the tenant.
13> If the rent is deposited within the time· mentioned in
sub-section Ul. and does not cease to be a valid depcsit
for the reason mentioned in sub,section (2), the deposit
KALURAM v. BAIDYANATH (Gajemlragadkar, c. J.)
A
1hall constitute payment of rent to the landlord as if the
amcunt deposited has been valid legal tender of rent if
tendered to the landlord on the date fixed by the contract
for payment or rent when there is such a contract, Gr,
in the absence of any contract, on the fifteenth day of the
month next fellowing that for which rent is payable."
B
Mr. N. C. Chatterjee for the appellants contends that the
etfect of s. 220) ls that the deposit made by appellant No. 1 shall
be held to constitute payment by him to the landlord, and so, there
·can be no scope for invoking s. 17(3) against him inasmuch/the
bas1& of s. 17(3), in substance, is that the tenant whose defence is
c sought to be struck out has committed a default in the payment
of rent. The object of s. 17(}) is to secure the payment of rent by
the tenant to the landlord and since that object has been satisfied
by the deposit duly made by appellant No. I under s. 21 (I), it
would be unreasonable to allows. 17(3) to be invoked against hi~i.
D
E
F
G
H
It is common ground that the deposit cf rent has been made by
appellant No. I in compliance with the provisions of s. 2 l &nd
that it is not rendered invalid under s. 22(2). In other words,
Mr. N. C. Chatterjee is entitled to urge his point on the assumption that appellant No. 1 has made a valid deposit under s. 21 and
is entitled to the benefit of s. 22(3). Can a valid deposit made under
s. 21 be permitted to be pleaded by a tenant when an application
is made against him under s. 17(3)?;. that is the question which
arises for our decision in the present appeal. The answer to this
question necessarily depends upon the determination of the true
scope and effect of the provisions contained respectively in s. 17
ands. 22.
As a matter of common-sense, Mr. N. C. Chatterjee's argument does sound to be prima facie attractive. If, in fact, appellant No. I has deposited the rent from month to month, it does
appear harsh and unreasonable that his defence should be struck
out on the ground that he has .deposited the rent not in the Court
where the suit is pending, but with the Controller. When appellant No. I began to deposit the rent with the Controller, he was
justified in doing so; but on the other hand. it is urged against
him by Mr. P K. Chatterjee that as soon as the suit is filed under
s. 17 and the period prescribed by it has expired, it was obligatory on appellant No.
I to pay the amount in Court and stop
depositing it with the Rent Controller; in other words, his failure
to pay the amount in Court incurs the penalty prescribed bys. 17(3)
notwithstanding the fact that he may have deposited the same
amount with the Controller. The requirements of s. 17(1) cannot
be said to be satisfied by taking recourse to the provisions of s. 22(3\;
that in substance is the argument for the respondent. The question
thus raised for our decision no doubt lies within a very narrow
COffiJYdSS and its answer depends upon a proper construction of
sections I 7 and 22; but, as we have already indicated, this narrow
42
SUPREME
COURT
REPORTS
(1965] 3 S.C.R.
question has given rise to a sharp conflict cf opinion in the Calcutta A
High Court. It appears plain that appellant No. I finds himself in
the present difficult position presumably because, acting upo!l the
view expressed in some of the judgments of the Calcutta
High
Court, he was advised to deposit the rent with the Controller even
after he was sued. by the respondent and s. 17(1) began to operate
against him.
B
In dealing with this vexed problem, it is relevant to remember that the two competing provisions occur in two different Chapters and apparently cover different fields. Chapter IV deals with the
question of deposit of rent in general, whereas s. · 17 in Ch J! 1
makes a provision for the payment of the amount mentioned bv it c
in .court after a subt or proceeding has been !in~tituted1 by the
landlord against the tenant. It is common ground that the !< ent
Controller is not Court within the meaning of s. 17(1). Prima fade.
a ~eneral provision for the deposit of rent prescribed by s. 21 would
not apply to special cases dealt with by s. 17. The provisions of
s. 21 and 22 which are genera] in character, would cover cases D
which are not expressly dealt with by the special provision prescribed by s. 17 .. In other words, though a tenant may deposit rent
with the Controller under the provisions of ss. 21 and 22, as soon
as a suit is brought against him by the landlord, s. 17 which is a
special provision, comes into operation and it is the. provision of
this special section that must prevail in cases covered by it: that E
is the first general consideration which cannot be ignored.
Section 17 deals with suits or proceedings in which the landlord
claims eviction on any of the grounds referred to in s. 13; and
as we have already noticed, s. l3 which affords protection to the
tenant's eviction, permits the landlord to claim eviction only if he
F
can place his claim on one or the other of the clauses (a) to lk);
that is to say, it is only if one or other of the conditions prescribed by the said clauses is proved that the landlord can claim to
evict his tenant. Default in the payment of rent is one of these
clauses, but there are several other clauses referring to different
causes of action on which eviction can be claimed by the land· G
lord, and it is to all these cases that s. 17(1) applies. It is thus clear
ihat normally, when a suit is brought for eviction, the tenant would
have to comply with the requirements of s. 170). It is only where
owing to the refusal of the landlord to accept the rent tendered by
the 'tenant, or where there is a bona fide doubt as to who is entitled
to receive the rent, that the provisions of s. 21 empower the tenant H
to deposit the rent with the Controlle~. In all other cases, if the
tenant was paying rent to the landlord and is faced with a suit
for eviction, s. 17(1) will unambiguously apply and the amount of
rent will have to be paid in Court as required by it. It is also clear
that if a tenant has been depositing the rent validly and properly
under s. 21 .. a suit against him under s. 13(1)(i) cannot be filed.
Section !l(l)(i) authorises the lan~ord to claim eviction of his
KALURAlll 9. BAIDYANATH (Gajendragadkar, c. J.)
43
A tenant on the ground that he has made a default in the pa~ment
of rent as described by it. But such a default cannot be attribu.ted to
a tenant who has been depositing the rent with the Controller properly and validly under s. 21. Such a valid payment amounts to
payment of rent by the tenant to the landlord under s. 22(3), and
so. a tenant who has been making these deposits cannot be sued
B
under s. 13(1)(i).
It is true that the complication of the present kind arises where
a tenant who has been making a valid deposit under s. 21 is sued
for ejectment on grounds other than s. J3(l)(i), and s. 17(1) comes
into operation against him. In such a case, if the special provisions
c prescribed by s. 17(1) apply to the exclusion of sections 21 & 22,
the fact that a deposit has been made by the tenant can be no
answer to the application made by the landlord under s. 17 (3)
In this connection, it is necessary to bear in mind the fact
that s. 17(1) is really intended to give a benefit to the tenant who
D has committed a default in the payment of rent. The first part
of s. 17(1) allows such a tenant to pay the defaulted amount of
rent together with the prescribed interest in Court within the time
prescribed, and such a tenant would not be evicted if he continues
to deposit the amount in Court, during the pendency of the suit
as required by the latter part of~. 17(1). In our opinion, the scheme
E
of s. 17(1) is a complete scheme by itself and the Legislature has
intended that in suits or proceedings to .which s. 17(1) applies, the
payment of rent by the tenant to landlord must be made in !he
manner prescribed by s. 17(1). Even ~n cases where the tenant
might have been depositing the rent with the Controller under
s. 21, he has to comply with s. 17(1) before the period prescribed
I' by s. 17 (1) has elapsed. It is significant that the requirement to
deposit the amount in Court comes into force within one month of
the service of the writ of summons on the tenant. In other words,
appellant No. 1 was justified in depositing the rent even after the
present suit was filed until one month from the service of the writ
of summons of the suit had elapsed. The Legislature has taken the
6
precaution of giving the tenant one month's period after the service
of the writ of summons on him before requiring him to deposit
the amount in Court. The object obviously appears to be that
when a suit or proceeding has commenced between the landlord and
the tenant for ejectment, and the tenant has received notice of it,
the payment of rent should be made in Court to avoid any dispute
l'I in that behalf.
It is also relevant to remember that in the matter of payment
of rent in Court, s. 17(1) has provided that the amount to be paid
in future shall be paid by the 15th of each succeeding month, and
that means that the date for the payment of the amount has been
· ~tatutorily fixed which is distinct f,.om the r~q~iremen~ of s. 4.
Section 4(2) provides for the p2 >meLt d rent withm the time fixed
44
SUl'REKE
COURT
REPORTS
(1965) 3 8.C.R.
by contract, but s. 170) requires the pa}!llleitt to be made by the
A.
15th of each succeeding month whatever may be the contract. If,
according to the contract, rent was payable quarterly, or sixmonthly, or even annually, s. 17(1) supersedes that part of the contract .2nj requires the rent to be paid, month by month, by the
15th of each succeeding month.
The position under sections 21 & 22 is, however, substantially
different on this point. Section 210) in terms requires the deposit to
be maae within the time referred to in s. 4, and that means where
there is a contract made by the parties in relation to the time for
the payment of rent, it is on the contracted date that the rent has
B
;o be deposited under s. 21. The· scheme of the three clauses of C
s. 22 clearly is integrally connected with s. 21. These clauses deal
with deposits made under s. 21. In fact it would be difficult to
read s. 22(3) independently of s. 22(1) and (2); all the three clauses
of s. 22 must be read together, and so, the time for making the
deposit for the purpose of s. 22(3) would be the time prescribed by
contract and not the statutory time provided by s. 17(1). It is clear D
that the deposit of rent made before the Controller under section 21
is based on the contractual obligation of the tenant to pay the rent,
and he makes the deposit because the landlord is not receiving
the rent or there is a dispute as to who the real landlord is. On the
other hand, the deposit of rent made in Court under s. 17(1) is
the result of a statutory obligation imposed by the said sub-section;
111
no doubt, the amount required to be deposited may .be the amount
for which the parties may have entered into a contract, but the
manner and the mode in which the deposit is required to be made
in Court are the result of the statutory provision, and in that sense
they constitute a statutory obligation. That is another feature which p
distinguishes the deposits covered by sections 21 and 22 from the
deposits prescribeil by s. 17(1).
Mr. N. C. Chatterjee argued that if the majority view of the
Calcutta High Court is upheld, it may lead to some anomalies. As
an illustration, he asked us to consider the case of a suit falling
G
under s. 17(1) which ultimately fails and is dismissed. In such a
suit, the rent would have to be deposited in Court· by the tenant
as required by s. 17(1); but if the suit fails, what happens to the
rent? Would the tenant be treated as being a defaulter, or would
the tenant who is required to 'make a deposit in Court as required
by s. 17(1) be compelled as a precaution, to make another deposit H
with the Controller in cases where the landlord had refused to
accept rent before he filed the suit? We are not impressed by this
argument. In our opinion, if the tenant had deposited the rent in
Court as required bys. 17(1), he could not be treated as a defaulter
under any provision of the Act. Payment in Court made by the
tenant under the statutory obligation imposed on him would, m
Jaw, be treated as payment of rent made by him to the landlord.
A
c
D
KALURAM v. llAIDYANATH (GaJendragidkar, 0. J.)
45
Mr. N. C. Chatterjee also relies on the fact that s. 24 in terms
provides that the acceptance of rent in respect of the period of
default in payment of rent by the landlord from the tenant ~hall
operate as a waiver of such default, when there is no proceeding
pending in Court for the recovery of possession of the premises.
The arguni.i:nt is that where the Legislature intended to confine the
operation of a specified provision to cases where there is no proceeding pending in Court, it has expressly so stated. In our opinion.
this argument is not well-founded. Section 24 merely indicates that
the Legislature thought that it was necessary to make that provision in order to avoid any doubt as to whether acceptance of rent
would amount to waiver or not in cases where no proceeding was
pending in Court. On the other hand, from the wording of s. 24 it
may be permissible to suggest that the Legislature did not think vf
providing for the consequence of acceptance of rent after the commencement of a proceeding for the recovery of possession. because
it knew that the said matter would be covered by s. 17(1),
Besides, s. 22(2) gives some indication that the provisions cf s.
22 are not intended to be applied when suits or proceedings have
commenced between the landlord and the tenant. It would be
noticed that s. 22(2) says that no deposit shall be considered to have
been validly made for the purposes of s. 22(1) if the tenant wilfully
or negligently makes any false statement in his application
E
for depositing the amount unless the landlord has withdrawn the
amount deposited before the date of institution of a suit or
proceeding for recovery of possession of the premises from the
tenant. This last clause may suggest that the provisions of all
the clauses of s. 22 may not be applicable after the suit or proceeding has commenced.
F
As we have already pointed out, the question raised for our
decision in the present appeal really centres round the determination of the areas covered by s. 17 on the one; hand, and sections
21 and 22 on the other; and though it may be conceded that the
words used in the respective sections are not quite clear, on the
whole the scheme evidenced by them indicates that the LegislaG ture wanted s. 17(1) to control the relationship between the landlord an·d the tenant as prescribed by it once a suit or proceeding
for ejectment was instituted and a period of one month from the
service of the writ of summons on the defendant had expired. We
have carefully considered the reasons given by the two learned
H
Judges who delivered the minority judgments in the Siddheswar
Paul's(') case, but we have come to the conclusion that the majority view on the whole correctly represents the true scope and
effect of s. 17, as distinguished from sections 21 and 22.
'
'
In the result, the appeal fails and must be dismissed. There
would be no order as to costs.
·
(')A.LR. [1965] Cal. 105.
LJB(D)2SCl-5
46
SUPBEllE
COURT
REPORTS
(1965] 3 8.C.R.
Before parting with this appeal, however, we would likt> to A
•
add that appellant No. I has to submit to the penalty prescribed ·
by s. 17(3) apparently because. acting upon the opinion expressed
by some of the learned Judges of the Calcutta High Court, he was
advised to continue to deposit the rent with the Controller even
after the present suit was filed against him. We do not know
whether there are many other cases of the same type. In case tllere B
are several other cases of this type, that would really mean unjust
hardship against tenants who, in substance, have not committed
default in the matt.er of payment of rent, and yet would be exposed
to the risk of ejectment by virtue of the application of s. 1713). In
our opinion, such tenants undoubtedly deserve to be protected
against ejectment. We trust the Legislature will consider this matter
f'
and devise some means of giving appropriate relief to this class of
ce.nants.
Appeal dis1nisseli.
I