Renupada Mukherjee, J. - (1.) This Rule is directed against an order passed by a learned Judge of the Court of Small Causes, Calcutta, in connection with an ejectment suit brought under the provisions of the West Bengal Premises Tenancy Act, 1956.
(2.) The following are some of the admitted facts of the case. The suit for ejectment was filed on August 1, 1956 and summons in the suit was served upon the Defendant Petitioner on August 17, 1956. The Defendant appeared on August 28, 1998 and applied for an adjournment for filing his written statement. Time was allowed till Novermber'14, 1956, for that purpose and the Defendant was also directed to deposit arrears of rent within one month from August 17, 1956. No amount was deposited by the Defendant within that time. There was an allegation in the plaint that rent at Rs. 55 per month was in arrears for some months prior to the institution of this suit. The Defendant filed his written statement on November 14, 1956, in which the amount chained by the landlords by way of arrears of rent was challenged. The learned Judge did not determine this dispute about the amount of arrears but he thought that as the tenant Defendant had not deposited his arrears of rent within one month of the date of service of summons and had not pleaded within that time that there was a dispute about the amount of arrears, he had forfeited his right of defence against delivery of possession as laid down in Sub-section (3) of Section 17 of the "West Bengal Premises Tenancy Act, 1956. I may mention here that on the very day the Defendant had filed his written statement, namely, on November 14, 1956. The landlords filed an application under Section 17 of the above Act for striking out the defence of the tenant against delivery of possession, although the section does not specifically require that such an application should be made by the landlord. However, on the basis of that application the defence of the Defendant against delivery of possession was struck out by the trial Judge on December 15, 1956 and an order was passed for ex parte hearing of the suit. The Defendant has moved this Court in revision challenging legality and propriety of the above order.
(3.) After hearing Mr. Bagchi on behalf of the tenant Petitioner and Mr. Mukherjee on behalf of the landlords opposite parties and on a consideration of Sub-sections (1) and (2) of Section 17 of the West 'Bengal Premises Tenancy Act, 1956, I am of opinion that the order passed by the learned trial Judge is erroneous in law and, as such, it cannot be supported. Sub-sections (1),(2),(3) of the above Act which are relevant for our purpose run in the flowing terms: 17. When a tenant can get the benefit of protection against eviction - (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, within one month of the service of the writ of summons on him. deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that date. (2) If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the court shall determine having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant in accordance with the provisions of Sub-section (1). (3) If a tenant fails to deposit or pay any amount referred to in Sub-section (2) or Sub-section (2) the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.;