The Court must decide the issue of landlord-tenant relationship before striking out the defense. Dismissal for default of a previous suit does not preclude raising a similar defense, but a flimsy and unsubstantiated defense may not merit further consideration.

Sabyasachi Bhattacharyya, J.

The defendants in an eviction suit, filed by the opposite parties under the West Bengal Premises Tenancy Act, 1997 have preferred the instant revisional application. By the impugned order, the Trial Court allowed an application filed by the plaintiffs/opposite parties under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the 1997 Act”), thereby striking out the defence against delivery of possession of the petitioners and fixing the suit for peremptory hearing.

2. The basis on which the Trial Court proceeded was that the defendants/petitioners had neither filed any application under Section 7(2) of the 1997 Act, nor made any deposit either the said provision or under Section 7(1) of the 1997 Act. It was further held by the Court below that a previous suit, bearing Title Suit No. 371 of 2002, filed by the defendants had been dismissed for default on February 14, 2011. Such suit was apparently filed on the ground of adverse possession, as per the finding of the Trial Court.

3. Learned counsel for the petitioners contended that the petitioners categorically disputed the landlord-tenant relationship between the parties. Learned counsel places various portions of the defendants’ written objection to the application under Section 7(3) in support of the contention that the defendants/petitioners had clearly denied the title as well as land-lordship of the opposite parties in respect of the suit premises in several places of such objection.

4. Learned counsel also places certain portions of the written statement filed by the petitioners in the eviction suit to show that the petitioners had categorically denied the landlord-tenant relationship between the parties and had claimed title to the suit premises by way of adverse possession as against the plaintiffs and/plaintiffs’ predecessor.

5. In the said written statement, the defendants/petitioners had also mentioned that the petitioners had filed Title Suit No. 371 of 2002 against the opposite party no. 1 and one Ratna Banerjee. It was mentioned in the written statement that the said suit was still pending. However, it was admitted that subsequently the previous suit had been dismissed for default.

6. Learned counsel for the petitioners argues that, in view of such specific challenge as to landlord-tenant relationship, the Trial Court, even while adjudicating an application under Section 7(3) of the 1997 Act, ought to have adjudicated upon such dispute as to landlord tenant relationship. Since no deposit had been made by the petitioners under Section 7(1) or Section 7(2) of the 1997 Act, on the premise that the petitioners denied the land-lordship of the opposite parties, the hearing of the application under Section 7(3) was the first occasion where the petitioners had a scope to urge such dispute.

7. As such, it was the incumbent duty of the Trial Court to decide such issue first, at least prima facie, before proceeding to strike out the defence of the petitioners.

8. Learned counsel for the petitioners cites, in this context, a judgment reported at 2018 (1) CHN (Cal) 705 [Jiten Joyder vs. Urmila Jaiswal], where a co-ordinate bench of this Court held as follows:-

“11. Though Section 7(3) of the Act also refers to a tenant in its initial part, the operative part of the provision is the consequence of the noncompliance. Such consequence is that the Court “shall order the defence against delivery of possession to be struck out”. The consequence affects a defendant who is admittedly a tenant or a defendant who has been adjudged as such. Even though such consequence, strictly speaking, may not befall a defendant who contends that he is not a tenant qua the suit premises or under the plaintiff and the legal relationship has not been ascertained, the defendant may choose to urge the challenge to the legal relationship at this stage and it is imperative that he must be afforded a chance to do so. A defendant has a right to