S.K. Chakravarti, J.@mdashThis is an appeal at the instance of the Plaintiffs whose suit for ejectment of the Defendant-Respondent was dismissed
by the learned Subordinate Judge, Cooch Behar and whose appeal against the decision was also dismissed by the learned District Judge, Cooch
Behar. The Defendant admittedly was a tenant under the Plaintiffs in respect of the premises in suit. The Plaintiffs claimed to have determined the
tenancy by service of a notice to quit and filed the suit inasmuch as the Defendant had not vacated the premises. The Plaintiffs alleged further that
the Defendant was not entitled to the protection of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as ''the Act''), inasmuch
as it had defaulted in the payment of rent for a period of more than four months and had also used a portion of the premises-in-suit for purposes
other than that for which it was let out. Both these pleas were negatived by the learned Subordinate Judge and the learned appellate Court and
hence this appeal.
2. With regard to the question of default, Mr. Sudhansu Kumar Sen, appearing on behalf of the Appellants, contends that the Courts below had
erred in holding that the Defendant had not defaulted in the payment of rent for five months, that is, Migsar Sudi Ekam 2014 S.Y. to Baisakh Bodi
15, 2015 S.Y. It appears that the rents for this period were deposited by the tenants at-the rate of Rs. 41-80 P. per mensem whereas the
contractual rent was Rs. 333-31 P. It appears, however, that on the tenants'' application for fixation of rent, the rent was fixed at the rate of Rs.
41-80 P. per mensem and that was the rent which was prevalent at the time when the game were deposited in the office of the Rent Controller.
3. Mr. Sen contends that the order of the Rent Controller fixing the rent at that rate was later on set aside and accordingly, the rents should have
been deposited at the rate of Rs. 333-31 P. and the Defendant had deposited the balance after December 9, 1959, that is to say, long after the
order of the Rent Controller was set aside by the Subordinate Judge on April 1, 1958. He submits that the balance, should have been deposited
within a reasonable time. The Act contains no provisions as to when the arrears are to be deposited in such circumstances. It would further appear
from the evidence on record and as already found by the learned District Judge that the Defendant applied to the Rent Controller on June 12,
1958, that is to say, within two months from the time of the passing of the order by the learned Subordinate Judge praying for permission to
deposit the rents, but the learned Rent Controller passed no order on it. The application dated July 19, 1958, was also not considered and the
Rent Controller adjourned the matter sine the and on July 21, 1959, the Rent Controller passed all the challans without notice to the Defendant and
as soon as the Defendant came to know of it, it had deposited the balance. In the circumstances, it cannot be stated that the Defendant was
negligent in depositing the balance and as such, it cannot be held to be a defaulter within the meaning of the Act.
4. Mr. Sen further contends that these deposits are invalid inasmuch as there was no previous tender of the same by the Defendant to the Plaintiffs.
The fact remains that since long before these deposits the tenant had been depositing the rents with the Rent Controller and it was not possible for
it to know that the landlords would agree to accept the rents and in the circumstances, the question of any previous tender does not arise. On the
evidence also it would appear that the Defendant''s witness had deposed to the effect that there was such tender and the Defendant''s witness was
not cross-examined on that point.
5. Mr. Sen further contended that the Defendant had also defaulted in the payment of rents for four months from Asar Sudi Ekam 2016 S.Y. to
Kartick Bodi 15, 2016 S.Y. It appears that these defaults accrued after the institution of the suit and as such, cannot be considered to have put the
Defendant outside the pale of the Act for the purpose of ejectment. Moreover, these rents were deposited with the Rent Controller and as the law
now stands after amendment, such deposits would also be good deposits. We, therefore, hold that the Courts below were quite right in holding
that the Defendant had not defaulted in the payment of rents.
6. Mr. Sen further contends that the Courts below had erred in holding that the Defendant was not liable to ejectment for having used a portion of
the premises for purposes, other than for which it was let out. The premises were admittedly let out for non-residential purposes. It appears that a
kitchen also formed part of the premises which had been let out. Mr. Sen contends that this kitchen was used hot for purposes of a kitchen by the
Defendant, but as a godown for storing salt with the result that it had caused damage. The Courts below have found that it was not so used. They
had also found that even if the Defendant had not used the kitchen for purposes of a kitchen, that would not be user for purposes other than that
for which it was let out to the extent that it would entitle the Plaintiffs to sue the Defendant for ejectment. There was an agreement executed
between the parties in respect of this tenancy-in-suit. In para. 2 of this agreement it has been stated : ""The kitchen...can be used by the lessee for
kitchen purpose."" On this basis Mr. Sen contends that if the kitchen is used for purposes other than that of kitchen, it would be a user for purposes
other than for which it was let out. In Clause 6 and 7 of the lease, where the landlords intended that the particular portion should not be used for
any purposes, proper language to mean that had been used. That would show that the Plaintiffs were quite alive to the situation as to what they
should do to prevent the use of the particular portion of the premises for other purposes. It is quite clear, on a reading of the whole agreement
between the parties, that the terms used in para. 2 of the agreement relating to the kitchen were meant only as an enabling clause specially as the
premises were being let out for nonresidential purposes and the paragraph does not restrict the use of the kitchen as a kitchen only. We accept the
findings of both the Courts below in this respect. This plea, therefore, fails.
7. No other grounds have been urged. The appeal, therefore, fails and it is dismissed.
8. In the special circumstances of this case, each party will bear its own costs in this Court.
P.N. Mookerjee, J.
9. I agree.