Before Mr. Justice Maharaj Sinha, JJ.

( 1 ) THE petitioners herein, who are the present plaintiffs in the Ejectment suit No. 672 of 2000, now pending in the Small Causes Court, Calcutta, have made this application under Article 227 of the Constitution primarily challenging an order dated 26th July, 2004 of the learned Judge, 4th Bench, Small Causes court, Calcutta, in Ejectment Suit No. 672 of 2000 rejecting an application of the petitioners under Section 17 (3) of the West Bengal Premises Tenancy Act made in the said suit.

( 2 ) FOR the sake of convenience and proper appreciation, I will set out the relevant portion including the operative portion of the above order of the learned Judge a little later.

( 3 ) BEFORE considering the merits of the above order, the chain of events that had taken place before the filing of the said application under Section 17 (3) of the West Bengal Premises Tenancy Act (in short the Act)are mentioned in brief.

( 4 ) IT appears from the petition that the above ejectment suit was first instituted in the City Civil Court at Calcutta, by the predecessors in interest of the petitioners and the said ejectment suit was subsequently transferred to the Small Causes Court, Calcutta, and renumbered as Ejectment Suit no. 672 of 2000.

( 5 ) THE tenant/opposite party made an application under the provisions of Section 17 (2) of the Act and the said application was disposed of by the learned Judge, 4th Bench, Small Causes Court, Calcutta, on 4th December, 2000 asking the opposite party to deposit the rent in arrears for a total sum of rs. 11. 540/- by 10 monthly instalments of Rs, 1,154/- each.

( 6 ) AFTER the above order dated 4th December, 2000, the tenant/opposite party, in fact, deposited three instalments, namely, for the months of January, february and March 2001 and thereafter the opposite party did not deposit any further instalment in terms of the said order dated 4th December, 2000 nor the opposite party deposited the monthly rent. In the month of August 2001 (either on 27 or 29 August) the opposite party made an application under section 151 of the Code of Civil Procedure for obtaining leave of the Court to deposit the rent in arrears from the month of April 2001 to August 2001, namely, the balance seven instalments which the opposite party did not deposit in terms of the said order dated 4th December, 2000 and for depositing current rents as well. However, on 13th December, 2001 the opposite party was allowed to deposit the current rent "at his own risk" and ultimately on 10th May, 2002 the said application under Section 151 was rejected by the learned Judge concerned.

( 7 ) HOWEVER, after the dismissal of the above application the petitioners made an application under Section 17 (3) of the Act and the said application was also contested by the opposite party. The opposite party in his turn also made an application again under Section 151 of the Code of Civil Procedure for the leave of the Court to deposit rent in arrears, namely the said seven instalments which the opposite party failed to deposit in terms of the said earlier order dated 4th December, 2000.

( 8 ) BOTH the said applications of the petitioners and the opposite party were, however, disposed of by the learned Judge by an order dated 3rd september, 2002 and 16th January, 2003 respectively.

( 9 ) IN Paragraph-7 of the petition the petitioners has made the following statements: -

". . . . . . . . on 3rd September, 2002 the application filed by the defendant under Section 151 was allowed on contest with costs and the delay in depositing the arrears of instalment was condoned and the defendant was directed to deposit the rest instalments at a time by the end of September 2002. "

( 10 ) THE learned Judge, in fact, in passing the said order dated 3rd september, 2002, in my opinion, considered the relevant facts as appears from the said order itself and then observed as follows: -"i have gone through the materials-on-record, challans, r

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