Sudhindra Mohan Guha, J.
1. The order passed by Shri P. K. Biswas, the learned Munsif, 2nd Court, Berhampore, striking out the defence against ejectment has been challenged under the present Revision.
2. The Opposite Party commenced a suit for ejectment being O. S. 72 of 1975 in the 2nd Court of Munsif, Berhampore against the petitioner on 18-3-1975 on the ground of default. The petitioner, after appearance filed an application under Section 17 (2A) of the West Bengal Premises Tenancy Act on 5-5-1975. By an order dated 23-12-75 the petitioner was allowed to pay instalment at Rs. 50 along with current rent at Rs. 25 per month. During the pendency of the suit the Opposite Party transferred the suit premises in favour of Jayanta Kumar Sinha and others under a registered conveyance dated 21-9-76. The arrear of rent was also assigned thereunder and there was also a recital to the effect that the transferees being substituted as plaintiffs would be at liberty to proceed with the pending ejectment suit. The transferees without being substituted in place of the Opposite Party asked the petitioner by a letter dated 20-11-76 to pay rent of the premises in suit to them on and from September 1976.
3- The petitioner deposited arrears of rent and current rent up to July 1976. On 3-12-77 in spite of the transfer the Opposite Party filed an application under3. 17 (3) of the Act praying for striking out the defence of the petitioner against ejectment. This application was allowed by an order dated 22-7-1978.
4. This order has been challenged. It s contended by Mrs. Archana Sengupta, the learned Advocate for the petitioner that the Opposite Party having transferred the suit premises in favour of Jayanta Kumar Sinha and others lost all right, title and interest in the suit premises and ceased to be the landlord. In the absence of any relation of landlord and tenant between the parties, the Opposite Party was not entitled to an order under Section 17 (3) of the Act striking out the defence of the petitioner.
5. The learned Munsif appears to be of the view that the transfer in question was hit by doctrine of lis pendens and as such it was not obligatory on the part of the Court to take into consideration of any subsequent event.
6. There is no dispute to the fact that the petitioner lost all his right, title and interest in the suit premises during the pendency of the suit and the transferees demanded rent from the tenant petitioner for the period subsequent to transfer and the transferees were also entitled to the arrears of rent by the assignment. In the circumstances the petitioner questioned the relationship of landlord and tenant between the parties at the time of hearing of the application under Section 17 (3) of the Act. Section 17 (3) is a penal section, because of tenant's failure to deposit or pay the amount as directed by the Court the Court shall order the defence against delivery of possession be struck out. Before imposing such a penalty the Court shall go into the question of relationship of landlord and tenant between the parties. To have the defence struck out is a special benefit or advantage conferred on the landlord by a special statute. In order to avail of such special advantage the plaintiff must prove that he is the landlord of the defendant in respect of the premises in question. It is held in Tirthapati Sen v. Paresh Nath Sen, ILR (1967) 1 Cal 449 that even on an application under 17 (3) it is the duty, nevertheless, of the Court to decide the issue as to whether there is the relationship of landlord and tenant between the parties, if it is raised. This decision was followed in the case of Sk. Hossain v. Mussamat Nau, reported in (1972) 76 Cal WN 397.
7. In this case apparently there was no relationship of landlord and tenantbetween the parties, when the Court passed the order striking out the defence of the petitioner against delivery of possession. In order to avail of the special beneat under Section 17 (3) of the Act, one must prove that the relationship of landlord and tenant exists between the parties, because such a benefit or advantage was conferred only on the landlord of the premises and not on a third party or a stranger to the tenancy. In this view of the matter the learned Munsif was not justified in striking out the defence against ejectment in this case by the impugned order dated 22-7-1978.
8. In the result, the application succeeds. The impugned order is set aside and the Rule is made absolute. No order as to costs.