A tenant whose defence against ejectment has been struck out for non-compliance with an order passed under Section 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, is not entitled to challenge the validity of the decree in appeal unless he can show that the strike out was improper or illegal.

( 1 ) THIS appeal arises out of a suit between the plaintiff landlady who is appellant of this appeal and her tenant who is respondent in this appeal. There was no dispute in the Courts below as to the existence of the relationship of landlord and tenant between the parties, nor was there any dispute as to the amount of rent of the disputed premises. The landlady instituted the suit in the Trial Court for eviction of the tenant on the ground that he was a defaulter, and he had disentitled himself from getting any protection against eviction by non-payment of rent for the period required by law. Service of a notice to quit purporting to determine the tenancy was also alleged to have been served upon the tenant.

( 2 ) THE suit was contested by the defendant whose defence was that no valid notice to quit had been served upon him, and that he had not committed such default as had deprived him of protection against eviction.

( 3 ) DURING the pendency of the suit an application under Section 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 was filed on behalf of the landlady for a direction upon the tenant to pay arrears of rent and also to pay current rent month by month according to the provisions of that section. This application was allowed. It is not disputed before me, nor was it disputed in the Courts below, that after the order on the application under Section 14 (4) of the Rent Control Act of 1950 was passed by the Court and before the suit came up for final hearing, the tenant had committed some defaults in payment of current rent. These defaults were brought to the notice of the Trial Court by the plaintiff who filed an application for striking out the written statement of the tenant. Apparently the real object of the application was to strike out the defence of the tenant against ejectment. The Trial Court heard the learned lawyers for both parties in this matter, and came to the finding that rent for March and April, 1952, and also for subsequent months was not deposited by the defendant in time, as directed by the order passed under Section 14 (4) of the Rent Control Act of 1950. In view of that finding, the Trial Court made an order striking out the written statement of the defendant. Evidently the Trial Court meant to say that the defence against ejectment was struck out. After this order was made, there was no further appearance on behalf of the defendant and the suit was heard and decreed ex parte on the finding that the notice to quit had been served upon the tenant defendant and he had been a defaulter for more than six consecutive months prior to the date of the suit.

( 4 ) THE defendant preferred an appeal from the ex parte decree passed by the Trial Court. In appeal the two learned Judges of the Court of Small Causes who constituted the Appellate Bench held that a valid notice to quit had been served upon the defendant, but there was no default of the description found by the Trial Court, and he was not disentitled to get protection from eviction. In view of this finding, the Lower Appellate Court set aside the ex parte decree passed by the Trial Court and made an order that if the tenant deposited Rs. 4/6/6 pies within fifteen days of the date of the order passed by the Lower Appellate Court, then the appeal would be allowed and the suit of the plaintiff would stand dismissed. This sum was deposited by the tenant with the result that the suit for eviction has stood dismissed. This second appeal has been preferred by the plaintiff landlady from the decree of dismissal of the suit passed by the Lower Appellate Court.

( 5 ) MR. Ganguli appearing on behalf of the plaintiff appellant submitted one point for my consideration. He argued that as both the Courts below held that a valid notice to quit was duly served upon the defendant, no question of service of notice arises in this appeal. Mr. Ganguli contended that the defence of the tenant respondent aga