D.P. Sarkar, J.

1. This is an application under Section 115 of the Code of Civil Procedure directed against the order number 102 passed in February, 1994 by the Assistant District Judge, 1st Court, Alipore in Title Suit No. 130 of 1994.

2. The suit in question is a suit for eviction of a premises tenant. The present Petitioner before this Court is the landlord and the original tenant was one Jamini Kanta Roy since death. The legal heirs and representatives of Jamini Kanta Roy are on record. The landlord-Petitioner instituted a suit for eviction on the ground of default against Jamini Kanta Roy in the past and that was numbered as Title Suit No. 76 of 1973. It was instituted on May 17, 1973 on the ground of default inter alia. But ultimately the suit was dismissed as the Defendant-tenant was given the benefit of Section 17(4) of the West Bengal Premises Tenancy Act. The matter came up to the Honble High Court and the Division Bench of this High Court by its Order dated July 27, 1983 that the Plaintiff could not get the belief on the ground of default in view of the provision of Section 17(4) of the West Bengal Premises Tenancy Act.

3. The present suit i.e. Title Suit No. 130 of 1984 has also been filed on the ground of subsequent default. In this suit the opposite parties filed a petition under Section 17(2) of the West Bengal Premises Tenancy Act challenging the relationship of landlord and tenant, secondly claiming that they are not defaulters because of the fact that they deposited the rent month by month with the Rent Controller but in some of the challans the surname of the landlord has been inadvertently mentioned by the Advocates clerk as Roy in place of Ghosh and there is also in some challans wrong mentioning of the premises number although the name of the landlord was correctly written in such challans. In short, mistakes in this form or that form cropped up in some of the challans by which rent was deposited. But according to the Plaintiff-Petitioner those deposits were invalied deposits and in view of the proviso to Section 17(4) of the West Bengal Premises Tenancy Act the opposite party-tenants are not entitled to get the benefit of Section 17(4) of the West Bengal Premises Tenancy Act for the second time and as such their petition under Section 17(2) of the West Bengal Premises Tenancy Act is infructuous, misconceived and not maintainable in law. The learned trial Court, on the other hand, held those deposits of rent as valid deposits relying on several decisions of this High Court and as well as of the Supreme Court. In short, the trial Court found the opposite party-tenants not defaulter and directed them to deposit the rent month by month within fifteenth day of the next month and thus the petition under Section 17(2) of the West Bengal Premises Tenancy Act was disposed of.

4. On being aggrieved by such order the present revisional application has been filed by the landlord-Petitioner challenging the impugned order on two grounds that the Court has got no jurisdiction to correct the challans filed before the Rent Controller because those are not part of the Court records but those are simply documentary evidence. According to the learned Advocate for the Petitioner the Court has got no power to correct the documentary evidence, the documentary evidence should be accepted as it stands.

5. The second ground is that the petition under Section 17(2) of the West Bengal Premises Tenancy Act is not maintainable in case of second default after the benefit under Section 17(4) of the West Bengal Premises Tenancy Act has been extended to the tenants once in the past.

6. On perusal of the impugned order I find that the learned trial Court did not direct to make necessary correction in the challans. The Court simply authorised the Rent Controller to pass the payment order for withdrawal in respect of those deposits with wrong surname and sometimes with the wrong premises number if the landlord wants to withdraw the said amount. There is no order to correct the challans. Accordingly, the submission of the learned Advocate for the landlord-Petitioner on this particular point is absolutely misconceived. The Court has got the power and authority to treat the deposits of rents in such wrong surname or against wrong premises number in some of the challans. The learned Advocate for the landlord-Petitioner has referred the decision Arun Brothers v. S.P. Chatterjee 1982 (2) C.L.J. 167 while judgment held that Controller has no power to exercise inherent power under Section 151 of the Code of Civil Procedure. It is nobodys case. Nobody wants the Controller to correct the mistakes in the challans exercising the power under Section 151 of the Code of Civil Procedure. But that does not mean that the amount will remain for ever with the Rent Controller. Such an idea is pre-prosterous. So, what the trial Court did is to give a direction that the landlord for whom the rent has been deposited or intended to be deposited should be allowed to withdraw that amount or in other words should not be denied the right to withdrawal on the ground of mistake with the surname or mistake in the number of suit premises in some of the challans. Therefore, this part of the order appears to be absolutely correct and in accordance with the principles of natural justice. The decision referred to above is not applicable to the present case. In this connection, we should not forget the guideline laid down by the Supreme Court in its decision in Votarmol v. Kailasnath 1989 (2) A.I.R.C. J. 682 that some delay or ommission here and there in the long period in payment of rent should not make the tenant a defaulter. In a similar case of mistake in the surname, the surname it was held in a decision N.K, Agarwalla v. S.N. Shaw 1988 (1) C.L.J. 34 that if the intention of tenant to deposit the rent regularly in favour of the landlord is clear then such minor mistakes in description of the surname or the premises number in some of the challans would not bring any infirmity.

7. The learned trial Court also held that the tenants handed over the money to the clerk of their Advocate for depositing the rent month by month and if there was any mistake in describing the surname of the landlord or in mentioning the suit premises number correctly in some of the challans in that event the tenants should not be held responsible and should not be penalised by a Decree of default. The intention of the tenants is absolutely clear because in the past and even subsequently the tenants deposited the rent in the correct name of the landlord and also mentioned the correct premises number in the challans. Why should the tenants keep some defects in the challans for an intermediate period deliberately to the detriment of his own interest

8. It has been challenged before this Court by the learned Advocate for the landlord-Petitioner that when once the tenants enjoyed the benefit of Section 17(4) of the West Bengal Premises Tenancy Act and when there is allegation of second default against the tenants the petition under Section 17(2) of the West Bengal Premises Tenancy Act is not maintainable and simply it is a futile exercise in law. In support of such submission the learned Advocate for the landlord-Petitioner has referred to me a decision of the Single Bench of this High Court N.D. Nandan v. K.L. Basak 1988 (1) C.L.J. 91. It is laid down by this decision that when tenant-Defendant having once obtained relief against forfeiture under Section 17(4) of the West Bengal Premises Tenancy Act, commits default for four months within twelve months, the tenant is not entitled to any relief envisaged under Section 17(2)(A) & (B).

9. First of all I find that Section 17 of the West Bengal Premises Tenancy Act is divided into separate parts. First part is 17(1) which requires deposit of the admitted arrears within a month from the date of receiving the summons with interest and also to go on depositing the current rents.

10. Section 17(2) contemplates dispute about the relationship of landlord and tenant, dispute about the fact of default and the period of default, dispute about the rate of rent.

11. Section 17(2)(A) contemplates extension of time for deposit as contemplated under Section 17(1) or 17(2) and also deposit by installments.

12. Section 17(2)(B) puts a clog on the power of the Court in the matter of such extension as mentioned above.

13. These are distinct enactments and the decision referred to me relates to as I find Section 17(2)(A) and 17(2)(B). But hardly I can conceive that this decision N.D. Nandan v. K.L. Basak (Supra) covers also Section 17(2) of the West Bengal Premises Tenancy Act.

14. The proviso to Section 17(4) would come into operation if there was second default, once the benefit under Section 17(4) was enjoyed by the tenant. In the instant case, it is an admitted fact that the tenant enjoyed the benefit of Section 17(4) of the West Bengal Premises Tenancy Act. So, if the factum of default for the second time is established only then the legal plea as contained in the proviso of Section 17(4) of the West Bengal Premises Tenancy Act can be raised by the landlord. Therefore, the question whether the tenant-opposite parties are defaulters or not for the second time that is necessary to be decided first for invoking the provision contained in the proviso of Section 17(4). Before the final disposal of the suit, what method or procedure should be followed to ascertain the fact whether the Defendant-tenants committed default for the second time or not. The only stage where it can be decided is the stage under Section 17(2) of the West Bengal Premises Tenancy Act. The Court can decide under Section 17(2) if the Defendant-tenants actually committed default for the second time for four months within a period of twelve months as alleged by the Plaintiff-landlord. Therefore, in my considered opinion, the importance and the necessity of the existence of Section 17(2) of the West Bengal Premises Tenancy Act cannot be dispensed with even in a case whether the tenant-Defendants enjoyed the benefit under Section 17(4) once and the landlord-Petitioner alleges the fact of second default in a subsequent suit.

15. In the instant case, I share the findings of the learned trial Court that there was no default on the part of the opposite party-tenants for months within twelve months or any default at all.

16. In the above context, the decision of the Supreme Court in B.P. Khemka (P) Ltd. v. Birendra Kumar : A.I.R. 1987 S.C. 1010 has held that if the subsequent default is for a period of less than four months within a period of twelve months, the tenant can claim relief in Sub-Section 4 of Section 17 of theeven for the subsequent occasion.

17. The Supreme Court in Votanmol v. Kailashnath A.I.R.682 C.J. 1989 (2) has laid down that if the second default in payment of rent is willful and deliberate the tenant is entitled to the benefit of Section 13(A) of the Rajasthan Rent Act. That Section contains similar provision as contained in Section 17(4) of the West Bengal Premises Tenancy Act. It is well established in this case and it is accepted by the learned trial Court that the deposit of rent in the wrong surname or against wrong number of premises only in certain challans do not show that it was done willfully or deliberately by the opposite party-tenants.

18. In the result, there is hardly any merit in the present revisional application, which fails.

19. The revisional application is thus disposed of.