P.B. Mukharjee, J.
1. This Rule is directed against the order of the learned Munsif allowing the plaintiff's application to strike out the defendant's defence against delivery of possession under Section 17(8) of the West Bengal Premises Tenancy Act.
2. The petitioner tenant urges three main points in this Rule. His first point is that a solenama between the parties duly registered marked Ext. D, expressly provides a covenant that the petitioner tenant will hold the premises as tenant of the plaintiff for ten years with effect from April, 1955 and that during this period of ten years the tenant shall not be liable to be evicted on any ground whatever. It is, therefore, said that for the period of ten years from April, 1955 to March, 1965, the petitioner tenant was not liable to eviction on the ground of failure to pay rent and the only remedy of the landlord would be to sue for the rent. This covenant is claimed to protect the tenant from eviction on that ground. It is therefore said that he is entitled to raise this defence of the term of the lease itself contained in this solenama, and his defence should not have been struck off under Section 17(3) of the Act.
3. His second point is that he has made a prayer for allowing him to deposit arrears of rent and interest and costs under the provisions of Section 114 of the Transfer of Property Act and if there is a forfeiture for failure to pay rent then the court should relieve him of that forfeiture. It is, therefore, contended on behalf of the petitioner that he is entitled to have this defence and his defence on that point should not be struck off.
4. His third point is that on the merits nothing is due to the plaintiff landlord. He made grocery supply to the landlord on which account the landlord owed a sum of Rs. 1936.35 paise and there was an agreement between the parties that the rent should be set off or adjusted against this amount. It is contended on behalf of the petitioner that the decision rejecting the defence is erroneous.
5. Now it is plain on the record that the defendant has not deposited the arrears of rent since 1961, no doubt for the reasons stated by the petitioner tenant that they have been set off or adjusted. It is also on record that though the summons had been served on him the petitioner has not deposited the amount of rent month after mouth as required by Section 17(1) of the Act. The plaintiff therefore made this application to strike off the defence under Section 17(2) of the Act on these two grounds. In answer the petitioner put up those defences which were overruled by the learned Munsif.
6. Interesting and important questions of law have been argued before me with a wealth of authorities not always unanimous on the point.
7. Mr. Banerjee appearing for the petitioner has a Division Bench decision to support his contention about defence under Section 114 of the Transfer of Property Act. He relies on the decision of Luxmi Spinning and Weaving Mills Ltd. v. Md. Ibrahim Mutwalli, reported in : AIR1958Cal428 . That decision lays down that even if the tenant is unable to get the protection of Section 12 or Section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, it was still possible for him to get the special relief under Section 114 of the Transfer or Property Act because there was neither express nor implied repeal of the provisions of Section 114 of the Transfer of Property Act by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. On the facts of that case however' the court came to the conclusion that exercise of discretion in favour of the tenant under Section 114 of the Transfer of Property Act was rightly refused. But it establishes the principle that relief under Section 114 of the Transfer of Property Act remains open even after the penalty is suffered by the tenant under Section 12(1)(i) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. This decision is based on the older decision of this Court by Greaves, J. in Ahindra Nath Chatterjee v. E. K. Twiss, reported in ILR 49 Cal 150: (AIR 1922 Cal 394). That was a decision under the old Calcutta Rent Act of 1920. It came to the definite conclusion that the tenant was entitled to relief against forfeiture under Section 114 of the Transfer of Property Act which had not been abrogated by the Calcutta Rent Act of 1920, Greaves J., at p. 160 (of ILR Cal): (at p. 397 of AIR) observed as follows:
'......I think that under the circumstances of this case I should relieve the defendant against the forfeiture, if any, under the provisions of Section 114 of the Transfer of Property Act. It is said on behalf of the plaintiffs that Section 114 of the Transfer of Property Act has no application having regard to the special provisions of the Rent Act (Section 11) and having regard to the fact that the rent payable is not that reserved by the draft lease but the standard rent. But the Rent Act does not expressly exclude Section 114 of the Transfer of Property Act, nor etc. etc.'
8. On the strength of those two decisions I am bound to hold that the petitioner's defence for relief against forfeiture under Section 114 of the Transfer of Property Act cannot be struck out.
9. Mr. Dutta on behalf of the opposite party landlord has further drawn my attention to the decision of the Supreme Court in Raja Ram Mahadev v. Aba Maruti Mali, reported in : AIR1962SC753 . But then this case turned on the language of the particular section and specially Section 3 of the Bombay Tenancy and Agricultural Lands Act. The Supreme Court holds in this case that the provisions of Section 114 of the Transfer of Property Act are inconsistent with the provisions of the Bombay Tenancy and Agricultural Lands Act and cannot, therefore, under Section 3 of the latter Act govern the tenancies to which it applies. On an interpretation of the Bombay Act, the Supreme Court further holds that the Bombay Act intends that relief against termination of tenancy for non-payment of rent is to be given only in the cases mentioned in Section 25(1) of the Act, and in no others. It points out that under Section 114 of the Transfer of Property Act relief may be given in other circumstances. Now Section 3 of the Bombay Act expressly provided as follows:
'The provisions of Chapter V of the Transfer of Property Act, 1882 (IV of 1882), shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies.'
10. Naturally such a provision would lead to the result indicated by the Supreme Court that when read with Section 25 of the Act which again was an express provision in this special Bombay statute tor relief against termination of tenancy for non-payment of rent. Now these distinctive features of the Bombay case are absent from the West Bengal Premises Tenancy Act and its particular section which I am considering in the present instance. No doubt equity will not operate to annul a statute and therefore, relief in equity against forfeiture cannot be granted when the tenancy is terminated by the statute itself. But the point is, has the statute clogged this equity.
11. The whole question here is whether Section 114 of the Transfer of Property Act is at all excluded by Section 3 or by Section 17 of the West Bengal Premises Tenancy Act. There is no exact decision on the present West Bengal Premises Tenancy Act of 1956. In the light of such decisions as I have mentioned * above and on my own interpretation I have come to the conclusion that the West Bengal Premises Tenancy Act, 1956, does not exclude the operation of Section 114 of the Transfer of Property Act. I shall state my reasons briefly.
12. Mr. Dutta for the opposite party contends that on the failure to make payments as provided in Section 17(1) or 17(2) of the Act the defence against delivery of possession must be struck out under Section 17(3) of the Act and the Court has no option in the matter. He relies on the now celebrated language of Section 17(3) of the West Bengal Premises Tenancy Act, 1956 which reads as follows:
'If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2), the court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.'
Mr. Dutta emphasised the expression 'defence against delivery of possession'. He argues that all defence against delivery of possession must be struck out. It is submitted by him that defences piece meal cannot be preserved. In other words his argument is that it is not possible to strike out some points of defence and retain other points of defence. There is a good deal of force in this argument.
13. No doubt the language of the section makes the defence against delivery of possession liable to be struck out. The question still remains not whether the defence wholly or partially to be struck out but what is this defence against delivery of possession that is mentioned in Section 17(3) of the Act. This defence obviously is in a suit or proceeding which the landlord has instituted for eviction on the grounds mentioned in Section 13 of the Act and which is the only kind of suit or proceeding which is contemplated under Sections 17(1) and 17(2) of the Act. No other kind of suit and no other kind of defence is the subject-matter under this Section 17. Therefore, when the expression 'defence against delivery of possession' in Section 17(3) is used, Mr. Banerjee for the petitioner, contends that defence is a defence relating to the grounds mentioned in Section 13 of the Act but no other points or defence in the suit which are defences outside the Act. This branch of the argument requires a much closer examination than it has received so far.
14. Now what are the defences outside the Act. Illustratively many examples may be given of defences outside the Act. For instance, incompetent constitution of the suit by an unregistered firm claiming to be the plaintiff landlord or a minor unrepresented by a nest friend or a suit by a Company or a Corporation not properly constituted or verified, it has been held also that even whcn 'defence against delivery of possession' within the meaning of Section 17(3) of the Act has been struck out, it is open to the tenant to raise points about the validity, sufficiency and service of the notice to quit. A learned Single Judge of this court in Ajit Kumar Sen Gupta v. Baijnath Somani, reported in 65 Cal WN 1110 came to the conclusion that it was permissible for a tenant whose defence against delivery of possession had been struck out to contest the suit on the ground that the notice to quit had not been served upon him, or that the notice was not legal or sufficient. Now that decision is that this defence is open to him although his defence against delivery of possession has been struck out. At the same time no one for a moment can dispute that a defence of non-service of the notice to quit or its legality or sufficiency is not a defence against delivery of possession. It obviously is. But then this defence is a defence outside the Act in the sense that the landlord's notice upon the tenant to quit and for the termination of such tenancy is not one of the grounds mentioned in Section 13 of the West Bengal Premises Tenancy Act but which remains a requisite to terminate, a tenancy under the Transfer of Property Act. Similarly another defence, outside the Act may be that in a particular case the premises are held under a lease for the period not less than fifteen years. Examples can be multiplied on this point of defences outside the Act, but I consider it undesirable and inappropriate to attempt to make any exhaustive list on the point.
15. The obstacle on the way of this argument is provided by a decision of the Division Bench in D.R. Gellatly v. J.R.W. Gannon, reported in : AIR1953Cal409 . This decision, however, does not bind me strictly speaking in the sense that it was rendered on a different Act being the West Bengal Premises Rent Control Act. 1930 and not on the present Act of 1956 which has many distinguishing provisions. Nevertheless this decision is in my view, relevant for certain observations it makes. It is held there by Chakravartti, C. J., that there is no justification in the language of Section 14(4) of the Rent Control Act, 1950, to limit the defence against ejectment contemplated by it to defence against ejectment only on the ground mentioned in Section 12(1)(i) of the Rent Control Act, 1950. At page 296 of that report Chakravartti, C. J., who delivered the judgment of the Division Bench observed as follows:
'It was further contended that even it his defence was liable to be struck out, it could not be the whole defence, nor could it be the whole defence against ejectment. But the defence against ejectment only has been struck out and not the whole defence. The contention was that what Section 14(4) contemplated was only defence against ejectment on the ground mentioned in Section 12(1)(i) of the Act and not also other defences against ejectment.' I am unable to give effect to that contention. The language of Section 14(4) is in no way qualified policy of the section or, indeed, the whole Act seems to be that the legislature is not minded to protect a tenant who will not even pay the monthly rent regularly. If the tenant, on being directed to pay the current rent month by month, does not do so, the Act quite clearly provides that he will by such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position under the general law. I do not find any justification in the language of Section 14(4) to limit the defence against ejectment contemplated by it to defence against ejectment only on the ground mentioned in Section 12(1)(i) of the Act.'
16. Now the relevant words in Section 14(4) of the 1950 Act were these:
'....the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.'
In a sense this provision is said to be in pari materia with the expression used in Section 17(3) of the West Bengal Premises Tenancy Act 1056 quoted above.
17. There is, however, a difference which must be noticed at this stage. That difference lies in the fact that under Section 17(3) of the present Act even when the defence has been struck out the statute goes on to provide that the Court 'shall proceed with the hearing of the suit.' The question is what does the court then proceed to hear. If it hears the suit then the court must have to see whether the plaintiff makes out a case which entitles him to a decree. In other words the plaintiff must produce evidence in support of his claim in die plaint and satisfy the court on such evidence that it should be accepted and a decree made accordingly. On the plain language of the section it seems to me that it is open to the tenant defendant in that ease even though his defence against delivery of possession has been struck out to cross-examine and break the plaintiff's witnesses in order to show to the court that the evidence that is being produced is unacceptable and should be rejected. This statutory provision under Section 17(3) of the Act is not comparable to such statutory provision as in Order 37 Rule 2(2) of the Civil Procedure Code where it is expressly provided that '...the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree.' Section 17(3) of the West Bengal Premises Tenancy Act does not say that when the defence against delivery of possession is struck out the allegations in the plaint shall be deemed to be admitted, and that the plaintiff landlord shall automatically be entitled to a decree as a matter of course. There is, therefore, an obvious distinction between Section 14(4) of the old Act, 1950 and Section 17(3) of the now Act of 1956. In the former the language used by the statute was that the defendant was relegated to the same position 'as if he had not defended the claim to ejectment.' That means that the defendant was not allowed to defend. Now so clear is the language of Section 17(3) of the present Act because of the use of the expression 'and the court shall proceed to hear the suit'. It does not say that it shall hear the suit ex parte. Other distinctions and differences between these two Acts have been noticed by Renupada Mukherjee J. in 65 Cal WN 1110.
18. It is essential also to emphasise that Section 17(3) of the Act provides a penalty for the tenant because it strikes off his defence against delivery of possession. It must, therefore, be strictly construed and limited to the grounds and context mentioned in Section 17 of the Act. It is not a kind of general penalty and forfeiture of all rights and reliefs under other laws and other statutes provided they have not been expressly or impliedly excluded by the West Bengal Premises Tenancy Act, 1956. In coming to that conclusion I am persuaded by the additional reason that this Act makes no special provision for relief against forfeiture as in Section 48C of the Bengal Tenancy Act or Section 6 of the Calcutta Thika Tenancy Act Therefore, the intention of the West Bengal Premises Tenancy Act, as I read it is not to take away the relief against forfeiture as provided in Section 114 of the Transfer of Property Act.
19. I shall further clarify this conclusion by reference to the language of Section 13 of the Act which says as follows:
'Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds.'
That means that this is a protection of tenant against eviction. The landlord is debarred from getting a decree in certain circumstances notwithstanding anything to the contrary in any other law. In other words this overruling power is a power to be exercised in favour of the tenant and against the landlord. By this I mean that if any law permitted the landlord to obtain a decree on other ground, then that law is abrogate and no decree shall be passed except on the grounds mentioned in Section 13 of this Act Therefore, the expression 'Notwithstanding anything to the contrary in any other law' in Section 13 does not mean that it overrides Section 114 of the Transfer of Property Act because that section does not help the landlord to get a decree for ejectment but in fact prevents him from getting a decree for ejectment on the ground of non-payment of rent by the tenant. In other words the existing reliefs available to a tenant under other Acts arc not taken away by the West Bengal Premises Tenancy Act, 1956 but are supplemented by protection given by that Act. In that view it will be improper and inappropriate to construe the penalty under Section 17(3) of the Act as a penalty covering defence against delivery of possession which are outside the purview of the West Bengal Premises Tenancy Act.
20. Lastly I am inclined to protect relief against forfeiture for non-payment of rent under Section 114 of the Transfer of Property Act notwithstanding the defence against delivery of possession being struck out under Section 17(3) of the West Bengal Premises Tenancy Act on the ground that it is a discretion which the court exercises, provided no doubt that the lessee pays or tenders to the lessor all arrears of rent together with interests thereon and the full costs of the plaintiff's suit or gives such security as the Court thinks sufficient for protection for making such payment within fifteen days. From that point of view it is not so much a lessee's defence as relief by the court in appropriate cases. It is not a right of defence in the sense that it must always be granted to a tenant. It is not a defence as of right. It is a discretion with the court. The language used in Section 114 of the Transfer of Property Act is 'The Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred' in Section 114 of the Transfer of Property Act.
21. I am quite aware that this interpretation will give almost a double protection to the tenant. In other words a tenant may flout the directions, of the statute in Section 17(1) or 17(2) of the Act and not pay as directed therein. Although his defence is struck out, yet he will be entitled finally under Section 114 of the Transfer of Property Act to pay or tender to the lessor the rent in arrear, together with interest thereon and his full costs of the suit or give such security as the Court thinks sufficient for making such payment within fifteen days and qualify for relief by the court. This is an additional relief which be is getting even though he is breaking the provisions under Sections 17(1) and 17(2) of the Act. It may then be said that in such a ease every tenant will go on disobeying the statutory provisions of Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act and then claim relief against forfeiture and against delivery of possession under Section 114 of the Transfer of Property Act. That may be said to render Sections 17 (1) and 17 (2) to be a dead letter.
22. I have given my most anxious consideration to this aspect of the ease, but it does not, in my view, change the interpretation and the conclusion to which I have arrived. The reason here again may be briefly stated. If it is the intention of the statute that a tenant should have no other relief under the Transfer of Property Act then the statute could have said so. Many statutes have said that as I have already indicated. Secondly, the whole purpose of the Act is not to adversely prejudice tenant's rights under the existing law except where it expressly or impliedly says so, but to give the tenant in the unusual housing situation, additional benefits and protection which the existing law failed to provide. All that Section 17(3) does is to deprive him of his defence against delivery of possession under the Act. But it cannot and should not be read as it penalty exceeding the boundaries of the Act and taking away the tenant's relief against forfeiture under the Transfer of Property Act. On some points the West Bengal Premises Tenancy Act, 1950, expressly or impliedly changes the existing law of tenants under the Transfer of Property Act, such as in making provisions of standardisation of rent, prohibition of salami and other provisions of that nature. But these inroads on Transfer of Property Act and these changes are significantly in favour of the tenant and in derogation of landlord's ordinary rights under the existing law. There is no explicit or implicit prohibition to say that the tenant's tight or relief against forfeiture under 8. 114 of the Transfer of Property Act has been taken away by the West Bengal Premises Tenancy Act.
23. For these reasons I must hold that it must be open to the petitioner in this case to claim relief against forfeiture under Section 114 of the Transfer of Property Act provided the court is satisfied that lit is a fit and proper case on the facts for granting such relief.
24. Now about the covenant in the solenama or what is described as the lease. Mr. Dutta for the opposite party has contended that the provision in the lease that the tenant will not he liable to be evicted on any ground whatsoever is bad under Section 23 of the Contract Act and also under Section 14(4) of the Rent Control Act of 1950 where according to Mr. Dutta's contention the landlord is given the right to sue for eviction in case of default. Section 14(4) of the ACT of 1950 does not apply because in this case the respondent did not in fact make any application under that section of the old Act in this suit But this point acquires a great strength under Section 13(1)(i) of the present Act of 1956, although Mr. Dutta missed it. I shall presently discuss its bearing after I have noticed the authority on which he relied. Reliance is placed by Mr. Dutta on the case of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co., reported in : AIR1959SC689 . This decision, however, arose on the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 and specially on Sections 13(1)(e) and 15 thereof. It is held there that an agreement entered into after that Act came into force, contrary to the provisions of Section 15 would be unenforceable as being in contravention of the express provision of the Act which prohibited it and overruled a plea of waiver raised by the tenant on the basis of such agreement In the facts of the instant case the contract was not made after this Act came into force but was made during the currency of the 1950 Act. In Section 14(4) of 1950 Act there was a provision for eviction in case of tie-fault but as I have said no application under that section was made by the landlord in the facts of this case.
25. The scope of this present covenant does not mean that the landlord is not entitled to claim the rent, sue for the rent, get a decree for rent and execute for the same. The landlord can take all these steps under this covenant. All that the covenant agreed to do is to prevent eviction for nonpayment of rent. The Solenama or lease in this case was executed in 1955. The bar to an eviction was for a period of ten years. This suit was filed on the 17th April, 1962 at a time before the expiry of that lease for ten years.
26. This lease, however, is not an exempted lease under Section 3 of the West Bengal Premises Tenancy Act 1956 because it does not satisfy the test of the period and the time of the lease as mentioned there, this being only of ten years. Expressly this tenancy is governed by the West Bengal Premises Tenancy Act, 1956 on the clear language of its Section 3. Then Section 13(1)(i) of that Act expressly recognises landlord's right to the decree for eviction on the requisite 'default' in payment of rent by the tenant, notwithstanding anything to the contrary in any other law. Now a 'default' under this Act of 1056 must be read in the light of Section 4(2), Section 17, Section 21, Section 22 and Section 24 of that Act. By the tests of these sections there is clear 'default' in the facts of this case. The only question then is, if such 'default' can be saved by this special covenant in this lease. The language of Section 13(1)(i) of the West Bengal Premises Tenancy Act 1956 provides a ground for a decree for eviction for default in payment of rent for two months in a period of twelve months or for two successive periods in cases where the rent is not payable monthly. This is notwithstanding anything contrary to any other law. Therefore the contractual law of covenant in this lease preventing eviction for non-payment of rent for any length of time is in direct conflict with Section 13(1)(i) of the present West Bengal Premises Tenancy Act 1956 and the statute must prevail against this covenant. To hold otherwise will defeat the ground of eviction expressly granted by Section 13(1)(i) of the Act to the landlord and will be against the principle recognised by the Supreme Court in Kini's case, : AIR1959SC689 already noticed. Mr. Banerjee however relied oh the Privy Council decision in Vellayan Chettiar v. Govt. of the Province of Madras, reported in 74 Ind App 223: (AIR 1947 PC 197) and on the observations of Lord Simonds to the effect that there is no inconsistency between the propositions that the provisions of Section 80 of the Civil Procedure Code are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they: are provided, and it is accordingly competent for the defendant in a suit to which Section 80 applies to waive his right to a proper notice. Mr. Banerjee also relied on the decision of the English Court in Rajbenback v. Manon, reported in (1955) 1 All ER 12 where it was orally agreed between the landlord and tenant of a flat, which was subject to the Rent and Mortgage Interest Restrictions Acts. 1920 to 1939, that the tenant would vacate the flat at the end of 1954 and that, in the event of his doing so and in consideration thereof, the landlord would pay 300 to the tenant. In an action by the tenant for a declaration that, in the event of his delivering up to the landlord vacant possession of the flat on or before January 1, 1955, he would be entitled to the payment of 300/- from the landlord on January 1, 1955, the landlord pleaded that the agreement was an attempt by the parties to contract out of the Rent and Mortgage Interest Restrictions Acts, and was, therefore, void and unenforceable. But the Court held that the agreement was not against public policy nor vitiated by the Rent Restrictions Acts, and being composed of promise for promise was not unenforceable for want of mutuality, although it might not legally be possible to eject the plaintiff from the flat at the end of 1954 owing to the operation of the Rent Restrictions Acts and therefore, the tenant was entitled to the declaration which he claimed. But these two eases on which Mr. Banerjee for the petitioner relied do not apply to the facts in this case and the clear law in Section 13(1)(i) of the West Bengal Premises Tenancy Act.
27. As I view the West Bengal Premises Tenancy Act I am of the opinion that this Act does not bring into being any new cause of action or new right to possession which did not exist either at common law or under the Transfer of Property Act but it super-imposes certain restrictions and circumscribes the limits for charging rents and for eviction and for providing certain amenities. The landlord's grounds for eviction are not newly created by the Act but were already there under the Transfer of Property Act. No doubt certain concepts such as requiring the premises either for one's own use or for building and rebuilding arc new concepts under the new Act. But then they do not, in my view, offer a new cause of action. A cause of action for eviction has still to be on notice to terminate the tenancy and that must be fulfilled although even if it is fulfilled a decree for ejectment will not follow unless there arc such grounds of reasonable requirement for one's own use or for building and re-building or such other grounds us are expressly mentioned in Section 13 of the Act. Under the Transfer of Properly Act the notice to terminate the tenancy was not required to state ground for such termination. Most of the grounds in Section 13, though not all such as Section 13 (1) (f) or (g) relate to existing grounds for eviction. Salter, J. in the English case of Ebner v. Lascelles, reported in (1928) 2 KB 486 at p. 497 observed in the context of English Acts as follows:
'During the contractual tenancy the tenant, being in possession under the protection of his contract, has no need of the protection of the Act to enable him to retain possession, but during that tenancy the Act protects him in regard to rent by providing that, notwithstanding any other agreements which he may make with his landlord as to rent, he is not to be charged a higher rent than the law allows and if he is charged a higher rent than that he can have it reduced.'
28. On this point for reasons discussed above I am of the opinion that this particular covenant in this particular lease in this case was rightly struck out as a defence against delivery of possession under Section 17(3) of the West Bengal Premises Tenancy Act 1956 first because the covenant is hit by Section 13(1)(i) of that Act and secondly because it is a defence under that Act and not outside the Act.
29. The third point urged on behalf of the petitioner is that the learned Munsif's order striking out the defence of adjustment of rent against the supplies of grocery articles should not have been struck out on the merits. This question, however, bears entirely on the merits of the defence. The defendant petitioner produced before the learned Munsif the khatas with the entries in Exhibit B and C series to show that the landlord opposite party was his customer in respect of the supplies of grocery articles. These books, according to the petitioner, were books maintained in the usual course of business and they prove that the plaintiff was his customer. He also proves by these books that up to September 1961 the plaintiff had become indebted to the petitioner up to the extent of Rs. 1936.35 paise. The plaintiff has denied this story. The learned Munsif has come to this finding that even assuming the books of account of the petitioner to be correct that only proves that a certain amount of money is due from the plaintiff to the petitioner on account of such supplies. But he comes to a finding on the facts that there was no agreement to set off this money against the rent. On that there is complete conflict in the testimony of the plaintiff and the defendant. The defendant himself has not given evidence and the only witness examined on his behalf was his son who was supposed to have been told by the plaintiff that these sums would be adjusted. On a consideration of the facts I am inclined to accept the learned Munsif's finding on this issue that the case of agreement between the parties for adjustment has not been established. That defence of the petitioner, therefore, must fail.
30. My conclusion on the reasons stated above is that because of the failure to deposit or pay as provided in Section 17(1) and Section 17(2) of the West Bengal Premises Tenancy Act the learned Munsif was right in striking out the defence against delivery of possession. But this striking out of the defence will not disentitle the petitioner, when the court 'shall proceed with the hearing of the suit'' within the meaning of Section 17(3) of the Act, to draw the attention of the court and urge the following:
1. the service, validity and sufficiency of the notice to quit; and
2. to pray and qualify for relief under Section 114 of the Transfer of Property Act.
31. With the above directions I discharge theRule. There will be no order as to costs of thisRule.