KRITY BASU Vs. PEARY MOHAN SARKAR & ANR.

JUDGEMENT

(1.) This appeal is by the tenant and it arises out of a suit for ejectment. The suit has been decreed by the learned trial judge after striking out the tenant's defence under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956. It appears, however, that the instant case is one, which will be governed by the old Sec. 17(2), i.e. before its amendment in 1959. Under the law, as it then stood, as interpreted by this Court in (1) Biswanath Roy v/s. Annapurna Roy, : 65, CWN 149, it was the duty of the court under the said sec. 17(2), to determine the amount, payable by the tenant -defendant under Sec. 17(1) and fix a reasonable time for its deposit under the said Sec. (Sec. 17(2)) before proceeding to take up the matter under Sec. 17(3) of the above Act. In the instant case, there is no question that such a dispute was raised in the defendant's written statement before the application under Sec. 17(3) actually came to be considered by the court below. The court below, however, did not consider the matter under Sec. 17(2) of the above, Act and did not pass any order thereunder. In that situation, its order, striking out the defence under Sec. 17(3) of the above Act, was illegal and without jurisdiction, vide (1) Biswanath Roy v/s. Annapurna Roy, : 65 CWN 149, and, accordingly, the said order cannot stand and it must be set aside, with the result that the decree for ejectment, following upon the same, would also fall to the ground.

(2.) In the above view, we would allow this appeal, set aside the decree of the learned trial judge and send the matter back to him for reconsidering the same under Sec. 17(2) of the above Act and for passing appropriate orders thereunder and, thereafter, for taking up the matter under Sec. 17(3) of the above Act and deciding the same in accordance with law and finally desposing of the suit for giving effect to the legal rights of the parties in the light of its aforesaid decision.