JUDGMENT :

Shampa Sarkar, J.

1. The revisional application has been filed challenging an order dated August 31, 2022, passed by the learned Civil Judge (Junior Division), 1st Court at Chandernagore, Hooghly in title Suit No.45 of 2014.

2. By the order impugned, the learned court rejected the applications filed under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the ‘said Act’) on the ground of delay. The learned Judge, also invoked his power under Section 7(3) of the said Act by striking out the defence of the tenants.

3. The tenants have approached this Court, aggrieved by the aforementioned order on the following grounds:-

a) The learned court, without adjudicating whether the tenants were actually in arrears, could not have struck off the defence.

b) Unless there was a specific finding by the court that there were arrears to be paid by the tenants and there had been default on the part of the tenants in paying such arrears or current rent, defence could not be struck off.

c) The learned court failed to take into consideration that the question of arrear rent and default, would not arise as the tenants had paid in excess of the contracted rent and in excess of the rent claimed by the landlord in the suit.

d) The learned court failed to take into consideration the excess rent paid in terms of the order of the Hon’ble High Court passed in C.O. 4466 of 2015 whereby and whereunder, the petitioners were directed to pay Rs.1,000/- per month to the opposite party, commencing from August 2015 till the disposal of the application under Order 9 Rule 13 of the Code of Civil Procedure, as a condition precedent for enjoying a stay of the execution.

e) The arrears on and from August 2015 were directed to be paid on or before March 31, 2016. Such payment was subject to adjustment against future rents.

4. Thus, Mr. Banerjee, learned advocate for the petitioners submits that it was not only the question of default which was to be decided by the learned court, but the applications under Section 7(1) and 7(2) of the said Act ought to have been decided upon taking into consideration the issues of adjustment, rent payable, the months of tenancy etc.

5. For compliance of the provisions of Section 7(1) of the said Act, no separate application was required to be filed by tenants as the arrears were paid to the erstwhile landlord. There was no attornment of tenancy and the tenant was not aware of the change of ownership in favour of the present landlord. These were sufficient grounds for holding that the tenants were not in default. When all the rents were paid by the tenants to the person they recognized to be their landlord, the question of deposit of admitted arrears along with 10% statutory interest, did not arise. An application for determination of the rate of rent or adjudication of arrears, was not required to be filed in the facts of this case. Thus, the learned court could have ignored the application under Section 7(1) of the said Act and directly decided whether excess rent had been paid by the petitioners in compliance of the order of the Hon’ble High Court and how the same could be adjusted against the earlier dues, if at all.

6. Mr. Banerjee further submits that the ratio in the matter of Bijay Kumar Singh & Ors. versus Amit Kumar Chamariya & Anr. reported in (2019) 10 SCC 660, would not apply in the present case as this was not a case of default on the part of the tenants to either pay the admitted arrears along with statutory interest or failure of the tenants to approach the court for adjudication of the issues of default, arrear rent, adjustment, rate of rent, etc. When there was no default at all, the tenants were not required to file the applications within the time limit prescribed by the statute. The tenants merely asked for an adjustment of the excess amount paid as per the order of the High Court. Such adjudication was independent of the mandatory pre-conditions prescribed in the decisi