, Sub-section (i)', or, any similar or corresponding or qualifying words, referring to pre-suit defaults, are absent in the new statute (Vide the proviso to Section 17 (4) of the 1956 Act). Even apart from that, if Mr. Das Gupta's contention be accepted, it would mean that in case of delayed service of summons, the tenant's defaults for the period between the filing of the suit and. the service of summons -- Whatever its length -- would not be available or actionable under Section 13 (1) (i) nor relevant Under the proviso to Section 17 (4), however much they might otherwise be within the mischief of Section 17 (1), which may be avoided by deposit, -- of course, with interest, --- within a month after service of summons. That, however, could not have been the intention of the statute, as, then, obviously, defaults during this period would have carried no serious consequence and would have been encouraged much against its Underlying policy, which seeks inter alia, to ensure regular payment of rent.
65. In the above situation, Mr. Das Gupta shifted his ground and contended that Section 22 (3) should be restricted, at least, to a pre-summons stage. I do not find, however, any justification for such a view on any known principle of construction Of statutes. Section 22 (3) contains no warrant for it. Sections 22 (1) and 22 (2), whatever support they might have given to the other argument of Mr. Das Gupta that Section 22 (3) applied only to a pre-suit or non-suit stage would give no support to this new argument. Section 17 also raises no necessary implication in that behalf, just as, as already seen, it does not contain any such implication to exclude Section 22 (3), immediately a suit for eviction is filed. If the legislature intended that Sections 21 and 22 (3) would not apply except at the non-suit, pre-suit or pre-summons stage and deposit of rent with the Rent Controller under and in accordaace with the provisions of the said Sections would not, in spite of Section 22 (3), 'constitute payment of rent to the landlord' during the pendency of the suit, or, at least after service of summons, it could have easily indicated it and provided for such limitation or restriction either in Section 17, say, by way of opposite 'Explanation', or, in Section 22 itself, by restricting its operation, by use of appropriate words therein, as it has done in the case of Section 24. The absence of any such limiting or restrictive provision is, in my view, strong evidence of a contrary intention.
66. There is another aspect of the matter, which also supports the view that Section 22 (3) cannot be restricted to a non-suit, pre-suit or even pre-summons stage. Take the case of a tenant, having bona fide doubt as to who is his landlord. Under Section 21, he is prima facie entitled, under such circumsances, -- of course, in accordance with its terms and provisions, -- to deposit rent with the Rent Controller, who is authorised to make over the money to the real claimant or the person, really entitled to it (Vide Section 21 (5) --and, indeed, is charged with the duty in that behalf -- subject to a final decision by 'a Court of competent jurisdiction.' -- presumably, the Civil Court on the claims of the rival claimants. One of the alleged landlords or claimants to the landlord's title low institutes a suit against the tenant on certain grounds under Section 13 (1) of the Act. What is the poor tenant to do in such a case in the matter of rents? If Sections 21 and 22 (3) have no application because of the pending suit, he cannot validly deposit rent with the Rent Controller after the institution of the suit and any such deposit, however timely and valid according to the said Sections, would not constitute payment to the landlord and he cannot by such deposits avoid the evil consequence of Section 17 (3). He cannot also actually pay to the landlord or his authorised agent as he has bona fide doubt as to who is his landlord. He may, no doubt, deposit the amount in Court,-- say, to the credit of the Court, as he does not know whether the plaintiff is his landlord -- but, even then, he may not be safe, as. in the' event of the plaintiff not being his landlord and the rival claimant, -- who may not, normally, at least, -- and certainly, would not necessarily, -- be a party to the suit, -- being entitled to that status, the tenant would not, by his deposit in Court, avoid being a defaulter. To explain myself, some elaboration is necessary. The plaintiff who claims to be the landlord and has brought the ejectment suit, is not obliged to implead his rival claimant and would not, ordinarily, do so. The Court also cannot, -- at any rate, should not -- compel him to make his rival claimant a party to the suit and convert the ejectment suit into a full-fledged suit for title -- which by the way, is not favoured by law and is against its normal policy -- and the plaintiff may choose to take the risk of having his suit ultimately dismissed, if he cannot establish against the tenant his claim to the landlord's title. In such a case, the deposit cannot have any effect against the real landlord, the more so, as it cannot be paid to him, he not being a party to the suit. Even if the said rival claimant be or be made a party to the ejectment suit, he will be there -- not as plaintiff but either as a defendant or a pro forma defendant, and he cannot be compelled to become a plaintiff and claim ejectment. The deposit, then, will be in a suit, in which the landlord is not the plaintiff, and, in such a suit, it may be difficult to contend that Section 17 would apply. In that view, the deposit in Court would have no legal effect and would not save the tenant from being a defaulter vis-a-vis his real landlord and the said tenant would thus run the risk of ejectment at his hands, --- and even of the mischief of the proviso to Section 17 (4). -- in a suit by the said real landlord, for no fault of his own. It was suggested during discussion that Section 17 (2) of the Act provides inter alia for the above contingency and would meet the same and offer a way of escape to the tenant in the aforesaid circumstances. But I am not convinced. I am not quits sure whether Section 17(2), which speaks of -- and, thus, requires for its application. -- a dispute as to the rent, payable by the tenant, will apply, where the tenant has only a bona fide doubt as to who is his land-lord. Assume, however, that it applies. If the Court decides against the plaintiff under that Section, ail is well with the tenant and he will not be prejudiced. If, however, the Court decides in favour of the plaintiff, that decision will not be binding on the rival claimant, if he is not a party in the suit, and, even if he is a party, the decision at the Section 17 (2) stage may not be final, so far as he is concerned, and may be questioned later and the point of title may be re-opened and may he differently decided at the final hearing. It may also happen that the plaintiff, though not the real landlord, may succeed against the tenant at the Section 17 (2) stage and yet his suit may fail at the final hearing on some ground other than the absence of relationship of landlord and tenant. In such a case, the tenant would be left completely at the mercy of the real landlord without any chance of retrieving his position. I do not think that the statute ever intended to place an honest tenant in such a precarious position. True, that, in such a case, the tenant may save himself by making a double deposit of rent -- one in Court and another with the Kent Controller -- but that would impose such a burden on the tenant and would be so onerous, unjust and unreasonable that I would refuse tr. accept, in the absence of a clear and unmistakable indication in that behalf, that that was the intention of the statute. I find no such indication before me and, accordingly, I reject the suggestion.
67. Similar, indeed, would be the situation and the same result would follow from a consideration of cases, where the pendency or continuity of the ejectment suit or proceeding is interrupted by a break or temporary termination and then revived or re-established as a result of appeal or of an Order 9 Rule 13 or any similar proceeding under the Code. Further elaboration, however, is unnecessary on this particular aspect as it has been fully dealt with by my Lord Bachawat, J., and I would not prolong this discussion.
68. On the above view, I would reject Mr. Das Gupta's second submission and hold that Section 22 (3) applies, even where a suit for ejectment is pending and summons therein has been served, and permits the tenant to make deposits under that Section, which would const'tute 'payment to the landlord' for purposes of Section 7 (1) but, before I do so, it is necessary to notice and overrule two other objections, which have been urged against the above view.
69. The first of the above two objections is sought to be founded or Section 23. It is urged that, if deposit of rent with the Rent Controller were permitted during suit, the landlord would not be able to withdraw the same except at the risk of submitting to waiver of the notice to quit on the ground of default. That, it is said, would be nutting an unreasonable restraint on the landlord,