M.M. Dutt, J.
1. This appeal is at the instance of the defendant and it arises out of a suit for ejectment.
2. The plaintiff instituted the suit on the ground that the defendant was a defaulter in payment of rent since Magh 1376 B.S. The defendant entered appearance in the suit and filed an application under Section 17 (2A) (b) of the West Bengal Premises Tenancy Act, 1956 praying for an enquiry into the allegations of default and permitting the defendant to pay by instalments the arrears of rent, if any. The said application came up for hearing before the learned Judge on Aug. 10, 1973. The defendant admitted that he was in arrears of rent for Magh and Falgun 1376 B.S. It was, however, submitted on behalf of the plaintiff that the question of technical default might be left open and decided at the time of hearing of the suit, and that the application of the defendant might be disposed by directing him to deposit the arrears of rent for the said two months with statutory interest. The learned Judge accepted the said contention made on behalf of the plaintiff and directed the defendant to deposit the sum of Rupees 30.75 as arrears of rent within a month from the date of the order. Further, the defendant was directed to deposit current rents month by month according to law. The question of technical default was left open and it was directed that the same would be decided at the time of hearing of the suit on merits. It does not appear from the order of the learned Judge that the defendant consented to the passing of such an order on the application. At the hearing of the suit, it was found by the learned Judge that the defendant had committed subsequent defaults in not depositing the current rents within the prescribed period. Accordingly, the learned Judge held that the defendant was a defaulter in payment of rent as he had not complied with the provisions of Sections 17 (1) and 17 (2) of the West Bengal Premises Tenancy Act, 1956. In that view of the matter, the learned Judge decreed the suit on the ground of default. Hence this appeal.
3. In our opinion, the learned Judge has committed an error of law in deferring the final disposal of the defendant's application under Section 17 (2A) (b) till the hearing of the suit. There can be no doubt that the application has to be disposed of before the hearing of the suit. Even if it is decided at the hearing of the suit, the defendant will be entitled to the benefits of the provision of the proviso to Section 17 (2A) (b) not only in respect of the arrears of rent at the time the application was filed but also with regard to all defaults that might have been made by him subsequently till the hearing of the suit. In our view, the learned Judge was not justified in taking into his consideration the subsequent defaults committed by the defendant and at the same time not granting him the relief under Section 17 (2A) (b) in respect of those subsequent defaults. In these circumstances, the judgment and decree of the learned Judge are liable to be set aside.
4. For the reasons aforesaid, the judgment and decree of the learned Judge are set aside. The case is sent back to the learned Judge with a direction to dispose of the application of the defendant under Section 17 (2A) (b) in accordance with law after considering any objection that may be made by the plaintiff respondent.
5. This appeal is allowed. But in the facts and circumstances of the case, there will be no order as to costs.
6. I agree.