Indrajit Chatterjee, J. - (1.) This is an application under Article 227 of the Constitution of India in which the order passed by the learned Trial Court dated 13 -09 -2013 in R.C. Case No. 398 of 2004 now pending before the learned Civil Judge (Junior Division), 6th Court, South 24 -Parganas at Alipore, has been assailed before this Court. In that order, the learned Trial Court considered the application under Sec. 7(3) of the West Bengal Premises Tenancy Act (hereinafter called as the said Act) for ex parte hearing and ordered that as the defendant till that date did not comply with the order No. 24 dated 19 -03 -2008 for payment of arrear rent that application under Sec. 7(3) of the said Act be allowed and the defence of the defendants was struck off under that provision of the said Act.
(2.) It was submitted by learned Advocate appearing on behalf of the petitioners by taking me to Sec. 7(3) of the said Act to convince this Court that the Court ought to have interpreted that sub -section as conjoint one. He further submitted that if the tenant fails to deposit or pay any amount referred to in Sub -section (1) and Sub -Section (2) within time or as may be extended, the Court shall order that the defence against delivery of possession be struck out and shall proceed with the hearing of the suit. He led stress on the words 'to be struck out and shall proceed with the hearing of the suit'. He further submitted that when that application under Sec. 7(3) of the said Act was disposed of, already one amendment petition was pending before the learned Trial Court, in which the plaintiff/landlord had prayed for adding additional ground for reasonable requirement. Thus, he tried to convince this Court that when the defence was struck of vide the impugned order, the court was not in a position to proceed with the hearing of the suit and as such, the said order cannot be supported. He has further submitted that the arrear rent has already been deposited.
(3.) He further submitted that the word used in 7(3) of the said Act "shall" is not mandatory one but is directory. He cited decisions of the Hon'ble Apex Court as reported in : AIR 1987 SC 1010 and 97 CWN 1124 in support of his claim. He further submitted by taking me to Annexure -F (running page Nos. 40 to 43) to show that a substantial portion of the arrear rent was deposited on 10 -09 -2013, 12 -09 -2013, 03 -10 -2013 and 08 -11 -2013 respectively and at present there is no arrear rent.;