JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioner before this Court is the Landlord Plaintiff in a suit for eviction and is aggrieved by the order dated 06-02-2018 passed in Ej – 407 of 2017 by Learned Chief Judge Presidency Small Causes Court Calcutta, allowing the application filed under Section 7(1) of the West Bengal Premises Tenancy Act 1997.

2. The case of the petitioner/plaintiffs may be summed up thus :

1. One M/S Seth Misree Lal Raidani, proprietor, Ashok Kumar Raidani instituted an ejectment suit being Ejectment Suit No – 407/2017 in Presidency Small Causes Court Calcutta against the respondent/defendant who is a tenant in respect of one room no. 27 located on the ground floor at premises no. 6 A Temple street, P.S. Bowbazar Kolkata – 700072 at a monthly rental of Rs. 501/- according to English Calender month.

2. During the pendency of the said Ejectment Suit No. 407 of 2017 the original plaintiff Ashok Kumar Raidani died on 18th July 2021.

3. After the demise of original Plaintiff right to sue survived with the legal heirs of the deceased and as such the petitioners filed an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure 1908 and the Learned Judge 4th Bench Presidency Small Causes Court at Calcutta by Order dated 10th February 2022 allowed the Legal heirs of the proprietor/original Plaintiff to be substituted as plaintiffs in the said ejectment Suit No. 407 of 2017. The petitioners being the legal heirs of deceased proprietor are now the plaintiffs in the instant suit.

4. The petitioners are now the landlords and the respondent is a tenant in respect of one room no-27. Located on the ground floor at premises no-6A, Temple street, P.S. Bowbazar or Kolkata – 700072 at a monthly rental of Rs. 501/- according to English Calendar Month.

5. The petitioners have filed Ejectment Suit No. 407 of 2017 on the grounds as stated in the plaint on 2-11-2017 against the respondent and the Learned Trial Court was pleased to fix 4.12.2017 for S/R and A/D and appearance of the respondent.

6. By an order dated 4-12-2017 Learned Trial Court held that one postal cover with A/D returned unserved with remark “D/C” in respect of defendants Kolkata address, and neither M/C report nor any postal report from defendants Mumbai address has come.

7. In terms of order dated 4-12-2017, the then recorded Learned Advocate in the Suit initiated proceedings with the local Post Master, Esplanade post office, Kolkata wherein the petitioners sought information regarding the status report of the consignments despatched to the respondent and whether summons had been served upon the respondent’s Mumbai address.

8. In reply to the Learned Advocate’s notice dated 29-01-2018 addressed to the post Master, Esplanade Post Office, the Customer Grievance Handling System, India Post stated that summons to the respondent’s Mumbai address had been delivered on 11.11.2017.

9. The respondent entered appearance in the said Ejectment suit on 06.02.2018 by filing two separate applications, one application under Section 7(1) of the West Bengal Premises Tenancy Act 1997 and another application under Section 7(2) of the West Bengal Premises Tenancy Act 1997, which were allowed by the Learned Court below.

10. The petitioner pursuant to the order passed by Learned Court below in allowing the application filed by the respondent under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1977 moved an application under Section 151 of the Code of Civil Procedure which was rejected on the ground that the remedy of the petitioners lies before the higher forum.

3. The petitioners being aggrieved by the Orders passed by Learned Court below has come up with the present application with a prayer for setting aside order dated 6.2.2018 passed by Learned Court below and for dismissing the petition under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997. It is contended by the petitioner/plaintiff that the Learned Trial Court acted in mat