A landlord may waive his right to strike out a tenant's defense under Section 17(3) of the West Bengal Premises Tenancy Act by failing to make a timely application.

This appeal is heard along with an application under S. 115 of the Code of Civil Procedure made in the alternative in the said appeal. This appeal arises out of the judgment and decree passed by the leaned Additional District Judge. 2nd Court, Howrah in title Appeal No.7 of 1976 reversing the Judgment and decree passed by the learned Munsif, 3rd Court. Howrah in Title Suit No. 190 of 1974.

2. The defendant is the appellant in the instant appeal and the said Title suit No. 190 of 1974 was instituted by the plaintiff for eviction of the defendant from the suit premises on the ground of reasonable requirement of the plaintiff. The plaintiff contended that the defendant was a monthly tenant under the plaintiff at a rental of Ra 125/- payable according to English calendar month and the said tenancy of the defendant had been duly determined by a notice to quit. As the plaintiff reasonably required the suit premises and as the tenancy was duly determined And the defendant failed to deliver up vacant possession the aforesaid suit had to be instituted. The defendant contested the suit by filing a written statement contending Inter alia, that the suit was not maintainable and the suit was had for partial eviction and the plaintiff did not require the suit premises for his own use and occupation. The other allegations made in the plaint that the father of the plaintiff was blind and the mother of the plaintiff was incense were also denied by the defendant. It appears that the trial court dismissed the suit inter alia, on the finding that the plaintiff failed to establish that the plaintiff reasonably required the suit premises for his own use And occupation it may be noted in this connection that during the argument of the said case, it was contended on behalf of the plaintiff that the defendant not having deposited rents an accordance with S. 17(1) of the west Bengal Premises Tenancy Act within the specified time the defence of the defendant was liable to be struck out under S. 17(3) of the said Act. The said argument was not accepted. The finding of the learned Munsif on the aforesaid submission made on behalf of the plaintiff was in the following effect. It has been submitted by the learned lawyer for the defendant that the defendant is not a defaulter as he has said rents and in this connection be refers to challans marked Ext. B to B/14. But considering the issues of this case as well as allegation wade by the plaintiff in the plaint I find that it is needless to discuss anything about the merits of the aforesaid submissions made by the learned lawyer for the defendant regarding the deposit of rents."

3. Against the said judgment and decree of the trial court the plaintiff landlord preferred the said title Appeal before the learned Additional District judge. Howrah and it was contended on behalf of the plaintiff landlord that under the provisions of S 17(3) of the West Bengal 'Premises Tenancy Act it was incumbents on the court below to strike out the defence of the defendant tenant and the court below acted illegally in not striking out the defence of the defendant but proceeding to consider the case of the parties on merits. It appears that the court of appeal below came to the finding that on the face of the challans, the defence against delivery of position of the defendant should have been stuck out under S. 17(3) of the West Bengal Premises Tenancy Act and there was no discretion left with the trial court in the matter of striking out defence under S. 17(3). The court of appeal below was also of the view that it was immaterial as to whether the suit was instituted on the ground of default or on other ground as enumerated in S. 13 or the said Act. the Court of appeal below held that under the provisions of S. 17 a duty was cast on the tenant to go on depositing the rent within the specified time and when the court attention was drawn that such payment was not made the trial court should have struck out the defence of t