A summons must state whether the hearing is for the final disposal or for ascertaining whether the suit will be contested and if not contested, for immediate disposal or for the settlement of issues.

1. This Rule is directed against an order, passed by the 2nd Additional Munsif at Alipore, directing that the Defense of the tenant petitioner against the claim for delivery of possession be struck out, under the provisions of section 17 (3) of the West Bengal Premises Tenancy Act. Admittedly, the defendant petitioner was a monthly tenant, under the plaintiff opposite party, in respect of a portion of premises No 113, Circular Garden Reach Road, at a monthly rent of Rs. 10. Alleging that the defendant was a defaulter in payment of rent since March, 1956, the plaintiff opposite party filed the suit, out of which this Rule arises, after service of usual notice to quit claiming eviction of the defendants from the premises in suit. It appears that the suit was filed on September 3, 1956 and the following order was recorded on that date: "register. Issue summons to defendant fixing 6. 11. 56 for ascertaining if the suit would be contested. " the next order is dated November 6, 1956 and it is to the following effect:

"summons served. Plaintiff files hazirah. Defendant appears and prays for time to file written statement. To 21. 11. 56 for filing the same and for orders. . . . . "

2. The written statement was not however filed on November 21, 1956 and the defendant asked for time. Later on, the written statement was filed on December 17, 1956 within the time subsequently allowed by the court. It is to be noted that in the written statement the defendant denied the allegation of default in payment of rent and his case was that he was depositing the rent with the Rent Controller. On December 20, 1956, the plaintiff opposite party filed an application, labeled under section 17 (3) of the West Bengal Premises Tenancy Act, alleging failure on the part of the defendant to deposit, in court, the arrears of rent and also default in payment of money equivalent of monthly rent month by month within the time allowed by section 17 (1) of the West Bengal Premises Tenancy Act.

The learned Munsif accepted the statement contained in the aforesaid petition and as already stated directed that the Defense against the claim for possession be struck out. Mr. Bhabesh Chandra Mitter appearing for the petitioner urged a single point for my consideration. He argued that there was no service of summons, according to law, on the defendant and although he might have cared to appear and contest the claim made against him, the mischief of section 17 (3) of the West Bengal Premises Tenancy Act was not attracted to the case because of non-service on the defendant of any document, which may be properly called to be summons.

3. The summons appears to have been drawn up in this case in the printed High Court Form No. (P) 5a. The heading shows that the form is 'common form of summons for (1) Final disposal, (2) Ascertaining whether a suit is contested or not and if not contested, for immediate disposal, (3) Settlement of issues (Order 5, Rules 1 and 5, Code of Civil Procedure). " There are three numbered clauses in the printed form. Clause (1) is relevant when the summons is for final disposal. Clause (2) is material when the summons is for ascertaining whether the suit will be contested or not. Clause (3) is relevant when the summons is for filing written statement. At the bottom of the printed form there is a foot note to the effect that clauses (1), (2) or (3) are to be struck out, as required, if the summons is for final disposal or for ascertaining whether the suit will be contested or for settlement of issues. There are also certain blank portions in the form where the description of the court where the suit is pending, the number of the suit, the names and addresses of parties to the suit and the date fixed under the summons are to be filled up.

4. The printed form that was served on the defendant, in the instant case, had the blank portion filled up according to law, bur none of the three clauses referred to above was struck out. therefore, in the shape i