Shubhro Kamal Mukherjee, J. - (1.) This is a second appeal against the judgment and decree dated August 13, 1969 passed by Mr. S.K. Mookherjee, the learned Subordinate Judge, First Court at Alipore, District 24 Parganas in Title Appeal No. 619 of 1968 affirming the judgement and decree dated March 6, 1968 passed by Mr. D. Guha Majumdar , learned Munsif, Second Additional Court at Alipore, District : 24 Parganas in Title Suit No. 252 of 1967. The Plaintiff/respondent instituted the present suit alleging, inter alia, that the tenant/defendant defaulted in payment of rent in respect of the suit premises with effect from the month of June 1966 and as such is liable to be evicted from the suit premises which the defendant/ tenant was holding as a premises tenant at a monthly rental of Rs. 32/ payable according to English Calender. The defendant entered appearance in the said suit and contested the same by filing a written statement.
(2.) Admittedly no application under Sec. 17(2) of the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the said Act of 1956 in short) was filed and accordingly the plaintiff/respondent filed an application under Sec. 17(3) of the said Act of 1956 for striata out the defence of the defendant against delivery of possession far non -compliance of the provisions of Sec. 17(1) and Sec. 17(2) of the said Act of 1956.
(3.) That during the pendency of the said application under Sec. 17(3) he said Act of 1956 filed by the plaintiff/respondent, the State Government promulgated the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 (West Bengal Ordinance No. VI of 1967) on September 19, 1967. The defendant filed an application under the said Ordinance No. VI of 1967 and prayed for leave to liquidate the arrears by instalments. December 1, 1967 was fixed by the learned trial judge for hearing of the aforesaid two applications. However, by Order No. 24 dated December 1, 1967, the learned trial judge allowed the application under Sec. 17(3) of the said Act of 1956 filed by the plaintiff/respondent, but no order was passed on the application filed by the defendant/tenant under Ordinance No. VI of 1967. Eventually, by Order No. 26 dated December 9. 1967 the learned trial judge dismissed the defendants application under the said Ordinance No. VI of 1967 as the defendant took no step on December 1, 1967. The defendant's application for recalling of the said order dated December 9, 1967 was filed on January 12, 1968 and the learned trial judge by Order No. 31 dated January 12, 1968 allowed the said applications filed under Sec. 151 of the Code of Civil Procedure subject to payment of cost of Rs. 10/ - by January 18, 1968. As the said cost was not deposited by January 18, 1968, by Order No. 32 dated January 18, 1968 the defendants application under Sec. 151 of the Code of Civil Procedure was rejected and the order rejecting the defendant's application under Ordinance No.VI of 1967 became final.;