ORDER
Sabyasachi Mukharji, J.
1. This is an application under Section 17 (2) of the West Bengal Premises Tenancy Act 1956 (hereinafter referred to as the said Act). On the 19th of November, 1968. the Raiputana Trading Co (P) Lid. (hereinafter referred to as the landlord) instituted a suit against Rawatmal Bhairudan. a firm (hereinafter referred to as the tenant). The plaintiff in the suit asks for a decree for possession of the demised premises being Shop-room No. 9 at premises No. 12, Armenian Street, Calcutta which is also known as 10/1. Portuguese Church Street, and claims a decree for Rs. 9,740.72 P. for arrears of rent and certain other interest and mesne profit. The landlord, inter alia, contends that the tenant had failed and neglected to tender and/or pay rent in respect of the demised premises since February. 1965 to one Sree T.K. Ghose, who was then the Receiver appointed in respect of the said premises in another suit.
2. It is the case of the plaintiff that the rent from 1st February, 1965 to 30th of September, 1968, being 44 months had remained unpaid and on that account the plaintiff was entitled to Rs. 9,740.72.
The plaintiff states that by a notice dated 1st of August, 1968. the landlord had determined the tenancy of the tenant end therefore claims mesne profit from the 1st of October, 1968 to 31st of October, 1968 8 Rs. 1,770/-. On service of the Writ of Summons the tenant made an application on the 4th of February. 1969, stating that the Writ of Summons had been served on the tenant on the 6th of January. 1969 and contended that the plaintiff had duly paid and/or deposited the rent for the months claimed except for the months of July, 1968, December, 1968 and January. 1969. The tenant accordingly made an application under Section 17 (2) of the said Act for leave to deposit the rents for the months of July and December. 1968, together with interest and the rent for the month of January, 1969. with the Registrar, Original Side, High Ccurt. The tenant also prayed for leave to deposit the rent for the months subsequent to Januarv. 1969, in the office of the Rent Controller during the pendency of the suit.
3. In this connection it would be relevant to refer to the provisions of subsections (1) and (21 of Section 17 of the said Act, The said sub-sections are as follows:
'Section 17. When a tenant can get the benefit of protection against eviction--
(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13. the tenant shall, subject to the provisions of Sub-section (2), within one month of the service of the writ of summons on him or where he appears in the suit or proceeding without the writ of summons being served on him within one month of his appearance deposit in Court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment 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 upto the date of deposit, and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate.
(2) If in any suit or proceeding referred to in Sub-section (1), there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (1) deposit in Court the amount admitted by him to be due from him together with an application to the Court for determinationof the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the Court shall --
(a) having regard to the rate at which rent was last paid, and the -period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order; and
(b) having regard to the provisions of this Act, make as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in Court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or as the case may be. directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.
2-A. Notwithstanding anything contained in Sub-section (1) or Sub-section (2) on the application of the tenant, the Court, may, by order--
(a) extend the time specified in sab-section (1) or Sub-section (2) for the deposit or payment of any amount referred to therein.
(b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under Sub-section (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such instalments and by such dates as the Court may fix:
Provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this Sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when such amount was payable upto the date of such order,
2B. No application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2-A) shall be entertained unless it is made before the expiry of the time specified therefor in Sub-section (1) or Subsection (2) and no application for permission to pay in instalment under Clause (b) of Sub-section (2-A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of -the amount due on account of default in the payment of rent.'
4. For the purpose of implementing the deposit rules of the Original Side of this Court have been framed and these are contained in Chapter XXIV of Vol. I of the Rules of the Original Side, which came into effect in July/August. 1967, The said Rules are Rule 42-A, Rule 42-B and Rule 42-C. These Rules are in the following terms:
Rule 42-A. A deposit under Section 17 (1) of the West Bengal Premises Tenancy Act shall be made upon the requisition in writing in Form No. 7 to the Registrar with such variations of the said Form No. 7 as may be necessary in view of the provisions contained in Section 17 (1) of the West Bengal Premises Tenancy Act, 1956.
Rule 42-B. Notice of a deposit mada under Section 17 of the West Bengal Premises Tenancy Act, 1956. shall be issued by the Registrar and shall contain particulars of the deposit as furnished by the person making the deposit under Section 17 (1) of the West Bengal Premises Tenancy Act, 1956. Such notice shall be served forthwith on the plaintiff in the manner prescribed for service of notice by the defendant or his attorney and shall be filed with an affidavit of service thereof.
Rule 42-C. If there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified in Section 17 (1) of the West Bengal Premises Tenancy Act. 1956. upon a requisition in writing in Form No. 7 with such variations as are appropriate in view of the provisions of sub-sections (1) and (21 of Section 17 of the said Act deposit the amount admitted by him to be due from him together with an application by the tenant for determination of the amount of rent payable by him. Upon the deposit being made, the Registrar shall make an endorsement to that effect on the back sheet of the application and thereafter the Registrar shall issue a notice to the parties intimating them that the application will be placed before the Judge-in-Charnbers on the date mentioned in the notice for necessary orders.
5. The application was made on the 4th of February, 1969. In that application A.N. Sen. J., gave leave to the tenant to deposit the rent for the months of July and December, 1968. along with interest and for the month of January. 1969. with the Registrar, Original Side of this Court. The said deposits were made on the next day, that is to say. on the 5th of February, 1969. It has to be borne in mind that the said deposits were madewithin the time stipulated under Section 17 (2) of the West Bengal Premises Tenancy Act. 1956. Thereafter, the application finally came up for hearing before K.L. Roy, J., on the 7th August. 1969. The learned Judge made, an order directing the tenant to deposit in court within six weeks from date of the said order the arrears of rent for the period from April 1965 to November 1968 with the exception of rent for the month of July, 1968, together with interest thereon as provided in Section 17 (2) of the Act. The tenant was given liberty to withdraw the amount deposited by him with the Rent Controller for the aforesaid period. The said order also directed that in default of the tenant depositing the said amounts within the time mentioned, the tenant's application would stand dismissed with costs. The said order was made without prejudice to the rights and contentions of the parties. The tenant preferred an appeal from the said order and the appeal was disposed of by a iudgment of this court on the 17th September. 1971, wherein the Division Bench allowed the appeal, set aside the order passed by the learned Judge and directed that the application be heard and disposed of in accordance with law in the light of the observations made in the Judgment of the Division Bench and the case was remanded back to the court of first instance to be decided on merits. The application has thus come. im for hearing before me. At an earlier stage of this application it appears, it was directed that the question as to what amount, if any, is liable to be deposited as arrears of rent from February. 1965 to January, 1969. was directed to be decided on evidence and the parties were directed to disclose the documents for the aforesaid purpose.
6. Three questions, therefore, require consideration by me, viz., (a) what amount, if any, is liable to be deposited as arrears of rent from February, 1965 to January, 1969. (b) is the present dispute covered by Sub-section (11 of Section 17 of the said Act and (c) whether the application is maintainable. Though there is dispute as to the validity of the deposits or payments made from February, 1965, onwards, it appears that the claims for rent prior to the month of October. 1965, being beyond the period of three years from the date of filing of the suit are barred by Article 52 of the Limitation Act, 1963, and as such are not legally recoverable in the premises, if the tenant is liable to pay or to deposit any amount then the liability would be from November. 1965 onwards. It is the case of the tenant that for the months of February and March. 1965. the tenant has paid the rents in this case to the Corporation of Calcutta for the claim of the occupier's share of taxes which by the term of thetenancy, the landlord was obliged to pay, which, the landlord having failed, the Corporation had demanded from the tenant. As I have mentioned before, I am concerned in this case with the demised premises being room number 9 of ground floor of No. 12. Armenian Street which is also known as 10/1, Portuguese Church Street. Calcutta. The tenant had been a monthly tenant of the said premises for the last 60 years. The rent payable by the tenant was Rs. 221.38 P. according to English Calendar month and the said rent was inclusive of occupier's share of corporation taxes in respect of the said premises. By the terms of the tenancy there was no date fixed for payment of rent but used to be collected or paid sometime after the first week of the succeeding month. The first question that requires consideration in this case, is, whether the dispute as to the validity and propriety of the deposits made to the Rent Controller is a dispute covered by the terms of Section 17 (2) pf the said Act. I have set out hereinbefore the terms of the section. The said Section 17 (2) was amended by the West Bengal Premises Tenancy Amendment Act, 1959. and prior thereto Sub-section (2) of Section 17 was in the following terms:--
'If in a suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the court shall determine, having regard to the provisions of the Act. the amount to be deposited or paid to the landlord by the tenant in accordance with the provisions of Sub-section (1).'
7. Counsel for the landlord contended that by the terms of the present Sub-section (2) of Section 17 the only dispute that could be agitated under this provision was a dispute as to the rate of rent payable by the tenant. Counsel urged that the validity of the deposits, right to recover the deposits or the propriety of deposits were not disputes which were contemplated by the terms of subsection (2) of Section 17 as it stood after the amendment. Counsel urged that subsection (1) of Section 17 dealt with liabilities of three types, liability for payment of contractual rent, liability of the tenant to pay the rent for the post-termination period which might be called statutory rent and the liability to pay rent subsequent to the institution of the suit in that background it was the submission of counsel for the landlord that it was only with respect of the rate of rent payable as distinguished from the other disputes regarding quantum of rent to be paid, was provided by Sub-section (2) of Section 17 as it stood at present. Counsel, in this connection, laid emphasis on the expression 'in accordance with the provisions of Sub-section (1)' in the Sub-section (2)of Section 17 at it stood prior to the amendment of the Act in 1959. Counsel submitted that the expression 'in accordance with the provision of Sub-section (1)' in Sub-section (2) pf Section 17 prior to its amendment might have covered the disputes apart from the dispute as to the rate of rent. But in 1959 the legislature had expressly omitted the expression 'in accordance with the provisions of Sub-section (1)' in the subsequent amendment and that provision was not there in Sub-section (2) of Section 17 as it stood to-day. Counsel also drew my attention to Sub-clause (b) of Sub-section (2) of Section 17 and submitted that when the Sub-section en.ioined 'the court to determine the amount to be deposited in court, that would be the amount that would be payable after determining the rate of rent and adjusting the same against the amount admitted to be the rate of rent payable by the tenant. It was in this connection, the counsel submitted, the last two lines of Sub-clause (b) of Section 17 (2) were significant. In this connection reliance was placed on a decision of the Supreme Court in the case of M.M. Chawala v. J. S. Sethi, Rent CJ 1969 p. 913 (SC). I shall deal with the said decision later.
8. I am, however, unable to accept the contentions advanced by counsel on behalf of the landlord about the jurisdiction of the court to determine the amount of rent to be paid by the tenant. In my opinion, the expression in Sub-section (2) of Section 17 'any dispute as to the amount of rent' is of the widest amplitude and there is nothing in the different clauses or in any of the sub-sections to circumscribe the expression to only the dispute as to the rate of rent. The expression used is 'any dispute as to the amount of rent'. The expression is not any dispute as to the amount of the rate qf rent'. Furthermore, the adverb 'any' is indicative of the fact that all disputes which can be legally raised as regards the liability to pay the amount of rent claimed by landlord comes within the ambit of Sub-section (2) of Section 17. In this connection, it may be relevant to refer to the fact that Sub-section (1) of Section 17 is a provision meant to give certain benefits to the tenants against eviction and the expression 'tenant' will mean a tenant in terms of Section 2 (h) of the Act. A tenant whose contractual tenancy has come to an end but who is still considered by the terms of the Act to be a tenant and liable to pay rent, it is the tenant in that wider sense who is contemplated by Sub-section (11 of Section 17 and it is the disputes in respect of that tenant that the Sub-section (2) of Section 17 covers. The reason why I am unable to accept the contentions advanced on behalf of the landlord on the construction of the section are as follows:
(1) The use of the expression 'any' in conjunction with the expression dispute as to the amount of rent in contradistinction to the expression dispute as to the rate of rent.
(2) If the construction advanced by or on behalf of the landlord in this case is accepted, then the moment a landlord claims certain amount of money from a tenant, either rightly or wrongly, the tenant would be liable to pay the amount in order to protect himself from eviction without having an opportunity of raising the dispute apart from the dispute over the rate of rent; that will lead to unfair advantage in favour of the landlord which, in my opinion, is unwarranted by the scheme of the Act.
(3) Provisions in Clause (b) of subsection (2) of Section 17 enjoin the court to determine two things, that is to say, the rate of rent and the actual amount to be deposited in court. Therefore, these two factors cannot, in my opinion be treated as synonymous when the legislature has treated them separately.
9. For these reasons on the construction of the provisions of the section, I am of the opinion that a dispute of the present type is covered by Sub-section (2) of Section 17 of the Act.
10. But quite apart from the aforesaid consideration, there are other difficulties in accepting the contention advanced on behalf of the landlord in this connection. In the case of Gujarat Printing Press v. Naraindas Jewrai (1960) 64 Cal WN 157 it was held that under Section 17 (2) of the Act the court would determine the amount to be paid under subsection (1) which amount had to be deposited within a reasonable time and that dispute was not only limited to a dispute as to the rate of rent. It must, however, be observed that the said decision was given in respect of the provisions prior to its amendment in 1959. But the reasoning of the said decision, in my opinion, is applicable to the language used in the present section which is the same as to the disputed amount of rent payable. It appears that the said decision was again followed in the case of Mahananda Dutta & Co. (P) Ltd. v. Uma Charan Law, (1964) 68 Cal WN 179. There was a dispute relating to the amount payable under Section 17 (1) of the Act. The court held that Section 17 (2) would be attracted and, accordingly, the order striking out the written statement was without jurisdiction inasmuch as no order under Section 17 (2) was made. This decision was given under the provisions of Section 17 (2) prior to its amendment. In the instant case from the order of K.L. Roy, J., as mentioned hereinbefore an appeal was taken to the Division Bench and the decision of the Division Bench is reported in : AIR1973Cal248 Ghose, J., delivering the judgment of the Division Bench observed in paragraph 28 of the judgment at page 252 of the report that a dispute under Sub-section (2) of Section 17 might be any dispute which touched the controversy with regard to the rate or amount of rent in arrear. The learned Judge noted that the dispute jn the present case was not about the rate of rent. What v/as the amount of rent in arrear was disputed. The learned Judge thereupon dealt with the contention raised on behalf of (he landlord and noted that it was contended that the validity of the deposit of rent for the aforesaid period from April, 1965. to November. 1969, except July and December, 1968, was not a dispute within the meaning of Section 17 (2). Reliance was placed before the Division Bench on an unreported judgment of Ghose, J., sitting singly. The Division Bench observed that that was a case of first impression and no authority had been cited before the learned Judge at that time. But in view of the observations of the Division Bench in the case of Mahananda Dutta v. Uma Charan Law. (1964) 68 Cal WN 179 Ghose, J., observed that the reasoning of the said judgment stood to reason. If the deposits of rent for certain periods with the Rent Controller were valid deposits, the amount of rent in arrear would be less by the total sum validly deposited. The court observed that the question of validity of deposits would be a dispute within the meaning of the said sub-section. Therefore, two questions arise in this respect. Firstly, there is a decision under the new Act of the Division Bench which is binding on me. Secondly this case has been remanded to me to be decided in the light of the observations given by the Division Bench. If the Division Bench has held that this dispute is covered by the terms of Section 17 (2) of the said Act rejecting the contention urged in the appeal, in my opinion, it is not open for me to hold that this present dispute is not covered by Section 17 (2) of the Act. This point, it appears to me was specifically raised and was also specifically held and in the light of the observations regarding the same I have to determine the present controversy. Therefore, in my opinion. I am not free to ignore these observations of the Division Bench. But quite apart from the same as mentioned hereinbefore I am in respectful agreement with the reasoning of the Division Bench. I am of the opinion that the present dispute is covered by Section 17 (2) of the Act. Counsel, however, contended that the decision of the Supreme Court which was not placed before the Division Bench took a contrary view. In my opinion that is not a fact. The Supreme Court was concerned with the Delhi Rent ControlAct, 1958 and the Supreme Court was dealing with Section 15 (3) of the said Act. It is significant that under the Delhi Rent Act a proceeding for recovery of rent did not lie before the Controller. It lay before the Civil Court. The Controller was authorised to try a proceeding for ejectment or for determination of standard rent or for determination of fair rent. The controversy before the Supreme Court was really whether the expression !a dispute as to the amount of rent payable by the tenant' meant the standard rent or the fair rent. The Supreme Court was not concerned to decide whether the dispute as to the amount of rent payable by the tenant under Sub-section (3) of Section 15 came within its ambit and could not be a dispute apart from the rate of rent. In the aforesaid view of the matter I am of the opinion that counsel for the landlord is not entitled to draw much support from the said observations of the Supreme Court in the instant case. In the aforesaid view of the matter on the construction of the section and in view of the observations of the Division Bench of our Court, which has remanded the case back to me. I am of the opinion, that this contentions urged on behalf of the landlord cannot be accepted and the present dispute is covered by the terms of Section 17 (2). The first contention, therefore, in opposition to this application, fails.
11. The second contention is that the application is not maintainable in view of the fact that there was no deposit made along with the application or prior to the making of the application in terms of Section 17 (2). My attention was drawn to the rules of the High Court and it was urged that there was non-compliance with it. This contention raises several aspects. First, the question is, whether there should be strict compliance or substantial compliance. It is true that there has not been strict compliance with the provisions of Section 17 (2), so far as the deposit of money is concerned, that is to say, the amount admitted to be in default for July and December. 1968. and January, 1969, was not deposited prior to or along with the application. Under our rules a requisition had to made to the Registrar for acceptance of the money and thereafter the application was to be made. But in this case counsel for the landlord drew my attention to a decision in the case of Sri Sarada Sangha v. Asoka Sengupta, (1972) 76 Cal WN 862 where it was held that the application under Section 17 (2) of the Act for determination, of the rent payable by the tenant should be accompanied by the deposit of the amount admitted by him to be due from him and if no such deposit of the amount was made, the application for determination of the rent was not maintainable. It wasfurther held that the tenant must deposit the amount in court within the time specified in Section 17 (1) of the Act. But in the instant case the amount was deposited within the tune because writ of summons was served on the 6th January. 1969 and the amount was deposited by the 5th February. 1969. Therefore, the amount had been deposited within the time contemplated under Sub-section (1) of Section 17 of the Act It is true that the application had been made to the court which is not necessary and the application was not competent really when the court ordered the deposit to be made and the application in my opinion became effective from the 5th February, 1969. Therefore, even though there has not been strict compliance with the rules as contemplated by the provisions of the rules of the High Court and also under Section 17 (21 pf the Act there has been substantial compliance; the tenant has deposited the amount. Therefore, in my opinnon this application was maintainable. The next question is whether this question is barred by the principles of constructive res iudicata or not. Counsel for the tenant contended that it was barred by the principles of constructive res .iudicata and drew my attention to several decisions, namely, in the case of Kaluram v. Mehtab Bai. : AIR1959MP181 ; in the case of Chunilal v. Habib All. AIR 1916 All 213; in the case of Dattu v. Kasai, ILR (1884) 8 Bom 535 and in the case of Ansar All Jemadar v. C.E. Grey. (1905) 2 Cal LJ 403 and in the case of Tituram Mukherji v. Cohen, (1905) 2 Cal LJ 408. He also drew my attention to the commentaries of Mulla's Civil Procedure. Counsel for the landlord, however, drew my attention to the decisions in the case of Kartick Chandra Das v. Satya Nidhi Ghosal. AIR 1916 Cal 77, in the case of Balaram v. Mangta Dass, (1930) 34 Cal WN 941: in the case of Lingo Raoji Kulkarni v. Secretary of State, AIR 1928 Bom 201; in the case of Sashi Kumar Banerjee v. Mrs. D. J. Hill, : AIR1951Cal316 ; in the case of Tarini Charan Bhattacharya v. Kedar Nath Haldar. 33 Cal WN 126 = (AIR 1928 Cal 777) (FB) and in the case of Kanhaiya Singh v. Bhagwat Singh, AIR 1954 Pat 326. It was contended on behalf of the landlord that unless a point had been raised and was necessary to be raised, there could not be any question of constructive res iudicata in a proceeding like this and furthermore, in a case where the case had been remanded on merits to be tried, there could not be any question of constructive res iudicata. It was further urged that the application was not maintainable by the provisions of the Act. it was not a question whether the party was entitled to raise a contention or not. The court was debarred from allowing an application if the law did not permit it to doso. In the view I have taken it is not necessary for me to decide this contention. But I am inclined to take this opinion that when this contention could have been raised before the appeal court and this contention not having been raised, which would have defeated an order of remand, in my opinion the landlord is not entitled at this stage to raise this contention.
12. This being the position, the next question which arises in this case, is whether the deposits were validly made as mentioned hereinbefore. Though the landlord was challenging the validity of the deposits from February, 1965. I am really concerned with the validity of the deposits from November. 1965. On this aspect counsel for the landlord took three points, namely, the deposit for the month of April, 1965, had not been validly made; therefore, all subsequent deposits were invalid; according to him prior to the deposit for the month of April. 1965, there was no valid tender to the landlord and as such the deposit to the Rent Controller was invalid. He secondly, contended that after the discharge of the receiver Sree T.K. Ghosh in September. 1965, rent had been deposited with the Rent Controller in the name of Sree T.K. Ghose in spite of the knowledge and/or without enquiring as to who the receiver was end who the landlord was. In the premises, the said deposits subsequent to the discharge of the receiver were invalid. He lastly contended that there were false or incorrect statements in the application for the deposits to the Rent Controller, and as such the said deposits were invalid. The first question, therefore, is whether the deposit for the month of April, 1965 was validly made. This question as I mentioned hereinbefore is dependent upon whether there was valid tender prior to the deposit. In this case as there was no time fixed when the rent was to be paid under Section 4 of the Act, rent had to be paid within the 15th of the following month. The question, is. whether there was a valid tender prior to the 15th of May for the month of April, 1965. There is conflicting oral testimony on this point. The witness on behalf of the tenant Surana came to the box and stated that for the months of Feb. and March the amount of rent had to be paid to the Corporation in lieu of the occupier's share for which according to Surana the Corporation had threatened to levy execution though there is no evidence of actual service of any distress warrant. He stated further that he thereafter asked the durwan Mithailal of the landlord whether he would accept the rent for the month of April There is. however, a good deal uf contradictions as to when he asked Mithailal as to the acceptance of rent for the month of April. But Surana did say that he tendered the rent to the manager of the landlord Mr. Patodia as also to Mithailal and having been refused by them, prior to the 15th May, the same was sent by money order. The money order which is Ext. 4 has been tendered in this case. It does not. however, contain any date but there is a date as to when the money order was refused, that is to say, the postal endorsement containing the date 21st May, 1965. The receipt for the money order has not been produced. It is the evidence of Surana as well as Raimal Sarogi who deposed on behalf of the tenant that there was a search for this money-order receipt but it could not be obtained. The question, is, whether from this evidence it can be said that the tender was made prior to the 15th May. Counsel for the landlord contended very forcefully and in my opinion it is not without justification that there is a good deal of contradictions in the evidence of Surana on this point. But we have the following documentary evidence in this case, namely, Ext. 4 which is the money order receipt coming back indicating the refusal at least on the 21st May, 1965, but when the money was sent, there is no evidence. Then there is an entry being Ext. 14 (a) in the cash book which has been sought to be proved by Raimal Sarogi. Counsel for the landlord submitted that this entry had not been proved. It was contended that the entries in the books of account could only be corroborative evidence. But there being no independent evidence, this corroborative evidence by itself was of no use. It was also urged that there was no evidence that these books of account were kept in the usual course of business. Reliance in this connection was placed on a decision in the case of Paramananda Pandit v. Deb Narayan Pandey. (19451 49 Cal WN 308. Looking at the entry in the books of account which is Ext. 14 (a) it appears to me that it is unlikely that this was manufactured for the purpose of this case. Firstly this entry had not been disclosed before but it was disclosed at the last stage and during the hearing of this application. But the entry in the books of account, the location of that entry and the nature of the book do not suggest that this was not made contemporaneously. The book contained other entries which do suggest that this was the regular book of the tenant concerned. Indeed, apart from the general suggestion that the entry was not correct, no suggestion about the book not being genuine was made to the witness. Reading the entirety of the evidence of Rajmal it appears to me that the said entry has been proved though Raimal's evidence on this point that he went and deposited and sent the money order is in slight contradiction to the evidence of Surana on this point. But having regard to this nature of Ext. 14 (a) and having regard to the fact that I am of the opinion that the said entry was made more or less contemporaneously and refusal which is borne out by Ext. 4 and the statements in Ext. 5 and Ext. A. being the application and the challan which recorded that there was a tender prior to the deposit to the Rent Controller, and the fact that Patodia did not come to give evidence, who was the manager of the firm, in my opinion, it has to be accepted that the tender of the rent for the month of April was made prior to the 15th May, 1965. If that is the position, then the deposit made thereafter within the 30th May, 1965, was valid and as such it cannot be said that the subsequent deposits were invalidly made. This contention, therefore, urged on behalf of the landlord is also rejected.
13. The next contention urged on behalf of the landlord was that after the discharge of the Receiver deposits had been made in the name of the Receiver. The Receiver was discharged by an order of A.N. Sen, J. on the 22nd September, 1967. The said order is Ext. B, Though the order was passed on the 22nd September. 1967 the order was drawn up much later. It appears that it was drawn up on March, 1968. The order enjoined, inter alia, that the Receiver should inform the tenants that he was no longer acting as the Receiver. It is, therefore, to be presumed that he must have complied with this order. But there is a notice by the Receiver which was sought to be proved. Ext. I in which the signature of Mr. T.K. Ghosh. Receiver in suit no. 1133 of 1959 was proved. So far as the contents of the notice, Ext. I, are concerned, there is a good deal of substance in the contention on behalf of the tenant that the same have not been proved. Mithailal who gave evidence was not capable of saying whether that was a copy of the original notice as Mithailal did not know English. There is furthermore no evidence that this notice or copy of the said notice or any notice either was actually served on the tenants or on the present applicant.
14. On behalf of the landlord it was sought to be argued that the tenant had notice of the discharge of the Receiver by the fact that extensive repairs had been made of the premises. There is no evidence that extensive repairs had been made by the landlord. If the repairs had been made on behalf of the landlord then, of course, expenses must have been incurred for this purpose. No books of account or documents had been produced to indicate that any such expenses had been so incurred. In my opinion, the true fact seems to be that Mr.Ghose was discharged in September. 1967. The general notice might have been issued to the tenants but there is no specific evidence of any particular notice to the present applicant. But it is also apparent that the present applicant did not try to find out the position. In this connection, the answers given to certain questions, namely, Q. 298 and Q. 299 of Surana are significant, that is to say, he stated that he did not try to find out. It appears to me that if the tenant was there in the said premises and if the tenant had wanted to find out who the landlord was. if any, immediately it was possible to find out who the landlord was. Therefore, in my opinion, though the tenant did not have actual knowledge, the tenant was guilty of not finding out. and of not paying the rent to the correct landlord. The deposits, therefore, to the credit of Mr, Ghose for the months of September, 1967 to June, 1968. were therefore, not valid deposits in accordance with the West Bengal Premises Tenancy Act, 1956.
15. Counsel for the landlord also urged that the tenant had made incorrect or false statement in the application for making the deposit. Such incorrect or false statements would come within the mischief of Section 22 (2) of the Act. The mistake seems to be that instead of describing Mr. Ghose as Receiver in Suit No. 1133 of 1969 he described the Receiver in Suit No. 133 of 1959 in Ex. 6. In Ex. 5 the challan was not signed by the defendant, a firm, the name of the defendant was stated, instead of Rs. 221.38 at one place he stated 222.38. One rupee commission was included. There were some mistakes in the name of the firm. These mistakes, in my opinion, were not relevant and material mistakes and not calculated to mislead and were not relevant and material for this purpose. In this connection I am in respectful agreement with the observations made in the decision made in the case of Subhas Chandra Bhattacharjee v. Panchu Rani Dutta, reported in (1960) 64 Cal WN 438. The facts of the case in the case of Dr. P. Bhat-tacharyya v. Smt. Lakhpati Debi. report-in (1960) 64 Cal WN 763 are such where the Court came to the view that wrong statement was deliberately made by the tenant to mislead the landlord. In the aforesaid view of the matter. I am unable to accept this contention on behalf of the landlord.
16. In the premises, therefore. I am of the opinion that the tenant is liable to deposit to the Court under Section 17 (2) of the Act the rent for the months of Sepember. 1967, to June. 1968. I direct, therefore, that the applicant would deposit an amount equivalent to the amount of rent for the months of September. 1967 to June. 1968. He will make such deposit In, Court within a period ofsix weeks from this date. The tenant applicant will be at liberty to withdraw the amount if he has already deposited, such rent with the Rent Controller in the name of Mr. T.K. Ghose as Receiver for the months of September, 1967 to June, 1968 in respect of the said demised premises. The tenant applicant, Rawatmal Bhairadan is entitled to withdraw the money from the Rent Controller,
17. Cost of this application to be taxed as of a suit. Cost of this application will be cost in the cause.
18. Certified for two Counsel.
19. The suit is adjourned accordingly for two months from this date.
20. So far as the deposit and acceptance are concerned the Registrar, Rent Controller and all parties to act on a signed copy of the minutes.