Kalyan Jyoti Sengupta, J. - (1.) The application being G.A. No. 4344 of 2004 has been taken out by the plaintiff for striking out defence of the defendant against delivery of possession of the suit premises in the aforesaid suit and suit to proceeded with for hearing. Accordingly second application has been taken out by the defendant after the first mentioned application was made and in fact almost after hearing of the same. In the second mentioned application prayer has been made to the effect that has been made so that the delay caused in depositing rent with the Rent Controller be condoned. The first mentioned application is of course opposed by filing affidavit-in-opposition by the defendant. The fact of the case of the plaintiff's application is that there has been non-compliance of the provision of Section 17(1) within 30 days from the date of waiver of service of writ of summons, being 8th October, 1999. The deposit has not been made, either in the Court or with the Rent Controller or even if it was made, not within the stipulated time in the said Section. No application has been made within the period as mentioned in Sub Section 2B of the Section 17 of the said Act. In view of default as above the defence is liable to be struck out by the Court as provided under Section 17(3) of the said Act.
(2.) In the affidavit-in-opposition factually it is said that prior to filing of the suit the defendant started depositing rent with the Rent Controller in view of refusal to accept the same by the plaintiff, landlord. The said deposit of rent had been started from the month of August, 1999 and subsequent deposits have been made till today. All the deposits were made by account payee cheques. Therefore, there has been no default and no question arises for making any application under Section 17 as contended by the defendant. Of course copies of all the rent control challans have not been annexed. A copy of the challan for the month of July deposited on 16th August, 1999 has been annexed.
(3.) Therefore, going by the factual position and having regard to the provision of Section 17(1) of the said Act I think that the defendant herein should have deposited the rent for the month of October within one month from the date of waiver of service of the writ of summons in the Court or with the Rent Controller or should have paid to the landlord.;