A court cannot pass a decree for recovery of possession of premises under the West Bengal Premises Tenancy Act, 1956, unless the landlord proves one or more of the grounds for eviction mentioned in Section 13(1) of the Act, even if the tenant's defence against delivery of possession has been struck out under Section 17(3) of the Act.

( 1 ) THIS is an appeal by the defendant in a suit for recovery of possession of premises held under a tenancy governed by the West Bengal Premises Tenancy Act. 1956. The plaintiff's case is that the suit tenancy was according to calendar month of Hindi Sambal year and the rent was Rs. 13/-per month. The tenant was a defaulter in payment of rent since Baisakh 1372 Fasli year. The plaintiff also made a case of reasonable requirement for his own use and occupation and also for building and rebuilding.

( 2 ) BY a notice dated 28th January, 1966 the tenancy was determined with the expiry of Hindi Fasli month of Falgoon 1373 (H. S.) and as the defendant did not deliver possession as required, a suit was instituted on 5th April, 1966.

( 3 ) THE suit was contested by the defendant who filed a written statement denying that he was a defaulter. It was further stated that the rate of the rent was Rs. 10/-and he had been depositing the rent at through. The defendant also challenged the notice which according to him was not legal, valid or sufficient. It appears that on an application filed by the plaintiff under Section 17 (3) of the Act the learned Munsif by an order dated January 9. 1968 struck out the defence against the delivery of possession The suit thereafter was taken up for final hearing when one witness on behalf of the plaintiff was examined and cross-examined and the notice and postal issue and acknowledgment receipts were marked exts. as Exts. 1, 2 and 3 respectively. The learned Munsif by his judgment dated April 27, 1968 decreed the suit. In regard to issue No. 3 which related to the issue of default it was held that as the defence against delivery of possession was struck out this issue needed no further determination in this suit. The notice was found to be legal, valid and sufficient and duly served. Accordingly the suit was decreed. Other grounds for eviction, it appears, were not pressed.

( 4 ) AN appeal was preferred against this decision by the tenant and the appeal Court was also of the opinion on the question of default that as the order dated January 9. 1968 striking out defence was not disturbed, the same stood. It was further of opinion that the defence was rightly struck out by the learned Munsif. The appeal court further found that the tenant was not entitled to any benefit under the West Bengal Premises Tenancy (Amendment) Act, 1968. The legality of the notice was not challenged. The appeal accordingly was dismissed and the judgment of the learned Munsif was affirmed.

( 5 ) THE present appeal is against this decision. Mr. Mritunjay Palit learned Advocate appearing for the tenant-appellant has contended that in the judgment of the courts below there is no finding as to whether the defendant was a defaulter in payment of rent. It was contended that in order to pass a decree for recovery of possession it was incumbent on the court to come to a finding about the default and in absence of such finding the judgment under appeal could not be sustained. It would appear from the records of the proceeding that at the final hearing the plaintiff's single witness gave evidence about the default and other matters and the witness was cross-examined. Both the Courts however have relied on the finding arrived at on the application under Section 17 (3) of the Act and did not arrive at any finding on the evidence which was adduced at the time of hearing on the issue of default.

( 6 ) MR. Roy Choudhury, learned Advocate for the plaintiff respondent contends that in view of the order striking out of the defence against ejectment no further point need be established before or decided by the Court except on the notice as required under the general law as also under the provision of Section 13 (6) of the Act. He has referred to the Bench decision in Basudee Ganeriwalla v. Canton Carpentry Works Pvt. Ltd. reported in (1969) 73 Cal WN 365 in which it was observed:"the final conclusion that we thus reach i