A tenant must comply with the provisions of Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956, to avail of the protection from eviction provided by the Act.

ORDER :- This revision arises out of an order dated 19th January, 1979, passed by Shri M.K. Sen Gupta, the learned Munsif, 2nd Court, Alipore in T.S. No. 414 of 1972, striking out defence of the petitioner against ejectment under Section 17(3) of the West Bengal Premises Tenancy Act, 1956.

2. This suit was commenced on 20th December, 1972, for ejectment on the ground of default in payment of rents for the months of May to August, 1972 and also on the ground of plaintiffs own use and occupation. The summons being served on 1st January, 1973, the defendant made his appearance on 24th January, 1973. In the written statement the defendant came up with a plea of payment of rent. The defendant having failed to move the Court under Section 17(2) of the Act the plaintiff was obliged to file an application under Section 17(3) of the Act on 14th July, 1978. But on 9th August, 1978, an application under Section 17(1) of the Act read with Section 151 C.P. Code was filed praying for permission to deposit a sum of Rs, 638/- being Rs. 400/- as arrears of rent and Rs. 238/- as statutory interest, though in the petition, the plea of payment was reiterated. There was also an application under Section 5 of the Limitation Act for condonation of delay.

3. By the impugned order defendants applications were rejected and the one filed by the plaintiff under Section 17(3) of the Act was allowed.

4. Mr. Dipankar Gupta, learned Counsel for the petitioner argues that the learned Munsif fell into an error in striking out the defence without going into the question of plea of payment. According to him the plea of payment can be adjudged on evidence at the time of final hearing of the suit, or at least at the time of hearing of the application under Section 17(3) of the Act. By way of striking out the defendant the defendant has been debarred from raising the question of plea of payment at the time of final hearing. It is further contended by him that the tenant defendant was under no obligation under the facts and circumstances of the case, to file an application either under Section 17(1) or under Section 17(2) of the Act. Reliance is placed on the decision of a Division Bench of this Court in the case of Gopal Banerjee v. Manindra Nath Dey, reported in (1966) 70 Cal WN 864. The facts of that case were quite distinct and can be distinguished. In that case the plaintiff alleged that the tenant defendant had defaulted in payment of rents since March 1964. The defendant tenant alleged that the rent for March 1964 was paid to the landlord by way of an adjustment for one months rent received by the landlord in advance. The point in that case was when a tenant raised the question that the rent already paid in advance and lying with the landlord should be adjusted against the rent of the month for which the defendant was alleged, as March 1964, could be regarded as "default" within the meaning of Section 17(1) of the Act. Their Lordships were of the opinion that at the stage of Section 17(1) such a contention could not make the tenant a defaulter for the purpose of Section 17(1). That question of default must have to be tried at the suit on proper evidence, documentary and oral, for, in most cases, it would depend on the actual terms of the advance payment the fact of the advance payment, the question of any demand for an adjustment. To strike off the defence under Section 17(3) on the ground of non-compliance with Section 17(1) on such a contention of default which must have to await the trial, would in view of their Lordships be illegal. To do so and to strike out the defence at that stage would for ever bar the defendant from raising the question of default and having it tried out.

5. Mr. Ramapati Roy, the learned Advocate for the Opposite Party contends that the petitioner in order to avail of the petition under the West Bengal Premises Tenancy Act, should have applied with the provisions of Secs. 17(1) and 17(2) of the Act. He further contends that apa