JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the impugned Order No. 11 dated 03.02.2021 passed by the Learned Civil Judge (Senior Division), Kalyani, Nadia in Title Suit No. 25 of 2019, present application under Article 227 of the Constitution of India has been preferred. The petitioner is defendant/tenant in a suit for eviction filed by opposite party/plaintiff.

2. The petitioner/defendant contended that they appeared in the suit and filed one petition for depositing the arrear rent, inter alia, stating that the petitioner /defendant wanted to deposit the arrear rent of Rs,1,63,000/- before the Court as well as current rent month by month. Said application under section 7(1) of the West Bengal Premises Tenancy Act, 1997, was filed being accompanied by a petition praying for condonation of delay, whereby it was inter alia, submitted that there was a delay of 97 days in filing applications for depositing the arrear rent as well as rent for current months. Since the said delay was not intentional, nor was there any latches on the part of the petitioner/Defendant, in filling the petition under section 7(1), it has been prayed that the said period of delay be condoned and the petitioners may be allowed to deposit the rent.

3. After contested hearing learned Trial Court was pleased to reject petition under section 5 of Limitation Act and consequently the petition under section 7(2) of the West Bengal Premises Tenancy Act was rejected and in terms of Section 7(3) of the West Bengal Premises Tenancy Act, the defence of the Defendant is struck off.

4. Mr. Partha Pratim Roy learned Counsel appearing on behalf of the petitioner submits that the suit was filed on 15th March 2019 and application with prayer for deposit of arrear rent was filed by defendant on 1st August, 2019 and prayer for deposit of current rent was filed on 21st August, 2019. Mr. Roy submits that admittedly application under section 7 was not filed within the statutory period but he submits that the tenant school authority was and is always ready to deposit arrear rent of Rs.1,63,000/- before the court. They are also ready to deposit current rent month by month.

5. Mr. Roy further submits that there was no formal prayer on behalf of the plaintiff/opposite party for striking out defence under section 7(3) of the Act and learned Trial Court who was supposed to exercise his discretion in this respect, without considering said fact and in the absence of any application under section 7(3) of the Act, arbitrarily passed the impugned order by which defence of the defendant has been struck off. He further submits that the defendant/petitioner has disputed the ownership, which the learned court below did not take into account. In this context Mr. Roy has relied upon judgment of the Apex Court passed in Civil Appeal No. 4682 of 2022 (arising out of SLP Civil Appeal No. 1319 of 2019) (Asha Rani Gupta Vs. Sri Vineet Kumar).

6. Mr. Sahoo learned counsel appearing on behalf of the opposite party submits that the settled position of law is that the provisions of sub-section (2) of section 7 are mandatory and required to be scrupulously followed by the tenant, if the tenant has to avoid eviction on account of non-payment of arrears of rent, under section 6 of the Act.

7. Admittedly in the present case the petitioner/tenant has not complied section 7 (1) or 7 (2) of WBPT Act, 1997. In Bijay Kumar Singh & others Vs. Amit Kumar Chamariya & another reported in (2019) 10 SCC 660, Apex Court has distinguished sub-section 17 (2-A) and (2-B) of section 17 under 1956 Act with section 7 of the present Act of 1996. It has been clearly observed in that judgment that sub-section (3) provides for consequences of nonpayment of rent i.e. striking out of the defence against the delivery of the possession and to proceed with the hearing of the suit. Such provision is materially different from sub-section (2-A) and (2-B) which was being examined by the Apex Court in M/S B.P. Khem