Renupada Mukherjee, J.:— This appeal arises out of a suit between the plaintiff landlady who is appellant of this appeal and her tenant who is respondent in this appeal. There was no dispute in the Courts below as to the existence of the relationship of landlord and tenant between the parties, nor was there any dispute as to the amount of rent of the disputed premises. The landlady instituted the suit in the trial Court for eviction of the tenant on the ground that he was a defaulter, and he had disentitled him self from getting any protection against eviction by non-payment of rent for the period required by law. Service of a notice to quit purporting to determine the tenancy was also alleged to have been served upon the tenant.

2. The suit was contested by the defendant whose defence was that no valid notice to quit had been served upon him, and that he had not committed such default as had deprived him of protection against eviction. During the pendency of the suit an application under section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 was filed on behalf of the landlady for a direction upon the tenant to pay arrears of rent and also to pay current rent month by month according to the provisions of that section. This application was allowed. It is not disputed before me, nor was it disputed in the Courts below, that after the order on the application under section 14(4) of the Rent Control Act of 1950 was passed by the Court and before the suit came up for final hearing, the tenant had committed some defaults in payment of current rent. These defaults were brought to the notice of the trial Court by the plaintiff who filed an application for striking out the written statement of the tenant. Apparently the real object of the application was to strike out the defence of the tenant against ejectment. The trial Court heard the learned lawyers for both parties in this matter, and came to the finding that rent for March and April, 1952, and also for subsequent months was not deposited by the defendant in time, as directed by the order passed under section 14(4) of the Rent Control Act of l950. In view of that finding, the trial Court made an order striking out written statement of the defendant. Evidently the trial Court meant to say that the defence against ejectment was struck out. After this order was made, there was no further appearance on behalf of the defendant and the suit was heard and decreed ex parte on the finding that the notice to quit had been served upon the tenant defendant and he had been a defaulter for more than six consecutive months prior to the date of the suit.

3. The defendant preferred an appeal from the ex parte decree passed by the trial Court. In appeal the two learned Judges of the Court of Small Causes who constituted the Appellate Bench held that a valid notice to quit had teen served upon the defendant, but there was no default of the description found fry the trial Court, and he was not disentitled to get protection from eviction. In view of this finding, the lower Appellate Court set aside the ex parte decree passed by the trial Court and made an order that if the tenant deposited Rs. 4/6/6 pies within fifteen days of the date of the order passed by the lower Appellate Court, then the appeal would be allowed and the suit of the plaintiff would stand dismissed. This sum was deposited by the tenant with the result that the suit for eviction has stood dismissed. This second appeal has been preferred by the plaintiff landlady from the decree of dismissal of the suit passed by the lower Appellate Court.

4. Mr. Ganguli appearing on behalf of the plaintiff appellant submitted one point for my consideration. He argued that as both the Courts below held that a valid notice to quit was duly served upon the defendant, no question of service of notice arises in this appeal. Mr. Ganguli contended that the defence of the tenant respondent against ejectment having been struck out by the trial Court it was not open to the tenant to urge in appeal that he was not a defaulter and so not liable to be evicted until and unless his defence was restored. Mr. Ganguli submitted that what the defendant was precluded by statute from urging as a ground of defence could not be urged by way of attack in the appeal. This contention of Mr. Ganguli seems to me to be well founded. The only point of controversy which arose in the lower Appellate Court was whether the defendant had committed such default as had brought him within the mischief of the proviso to sub-section (3) of section 14 of the Rent Control Act of 1950. That sub-section together with the proviso runs in the following terms:—

“(3) If within the time fixed in the order made under sub-section (1) the tenant deposits in the Court the sum specified in the said order, the suit so far as it is a suit for recovery of possessions of the premises, shall be dismissed by the court. In default of such payment the court shall proceed with the hearing of the suit:

Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of rent referred to in clause (i) of the proviso to sub-section (1) of section 12 on three occasions within a period of eighteen months.”

5. The defence of the defendant in the trial Court was that he was not a defaulter of the description mentioned in the above proviso. This was his sole defence against ejectment, But this defence had been struck out by reason of his non-compliance with the Court's order passed on the application made by the plaintiff under section 14(4) of the Rent Control Act of 1950 It was not, therefore open to the tenant to argue his defence in the appeal by way of a challenge against the ex parte decree passed by the trial Court. The defendant could do this only after showing that his defence Lad been improperly or erroneously struck out. But the trial Court found that rent for serveral months was not paid in time in contravention of the order passed by the trial Court under section 14(4) of the Rent Control Act of 1950, and so it could not be said in any way that the rejection of the defence was improper or illegal.

6. Mr. Bhuttacharjyya argued on behalf of the tenant respondent that the right of appeal was a statutory right, and as this right was not expressly taken away by anything contained in section 14 (4) of the Rent Control Act of 1950, it cannot be said that the appeal was incompetent. Mr. Bhattacharjyya relied on a Supreme Court decision reported in A.I.R 1957 Supreme Court 540, Garikapati Veeraya v. N. Subbiah Choudhry & Others (1). It has no doubt been held in that case that a vested right of appeal can be taken away only by a subsequent enactment if is so provides expressly or by necessary intendment and not otherwise. But in my opinion, this decision of the Supreme Court does not help the respondent, and the argument of Mr. Bhattacharjyya, though seemingly well-founded, has no real substance. In this case I am not holding that the tenant had no right of appeal from the ex parte decree passed by the trial Court. section 14(4) of the Rent Control Act of 1950, however, imposes a disability on a tenant who fails to pay rent regularly during the pendency of a suit in terms of the court's order passed under that section. That disability consists in the rejection of his defence against ejectment. Once a tenant incurs that disability, the appeal becomes useless for all practical purposes. He cannot expect to succeed in the appeal unless he can first satisfy the lower Appellate Court that the defence has been improperly struck out by the trial Court. So long as he fails to do so, he cannot be permitted to urge in the appeal that he is not a defaulter and he has not a good defence against ejectment.

7. Mr. Bhattacharjyya appearing on behalf of the tenant respondent contended in the next place that in the lower Appellate Court the point pressed by his client was not dependent upon his written statement, and apart from his written statement, his client was entitled to challenge the validity of the decree. In my opinion this contention is also without any substance. If the defence against ejectment had been properly struck out, it had been struck out for all times, and the tenant was not entitled to say any thing in support of his case either in the trial Court or in any Appellate Court. I hold that it was not permissible for the tenant to show to the lower Appellate Court that he had not incurred the disability mentioned in the proviso to sub-section (5) of section 14 of the Rent Control Act of 1950 without his first getting his defence restored. As there was no reason for restoring that defence, the appeal of the tenant had become incompetent for all practical purposes in the lower Appellate Court.

8. Mr. Bhattacharjyya contended in the last resort that on the face of the plaint, his client was not a defaulter because the plaint itself would show that no default had been committed by the tenant on three occasions of two months each within a period of eighteen months. Mr. Bhattacharjyya contended that the lower Appellate Court was justified in dismissing the claim for eviction on a reference to the plaint. In my opinion, it was not permissible to the lower Appellate Court to refer to the plaint for this purpose at the instance of the tenant. A decree may be passed erroneously by a trial Court, but an Appellate Court can set aside that decree only in a properly constituted appeal. In this particular case, the defence of the tenant having been struck out by the trial Court, the appeal had become incompetent, and the lower Appellate Court acted erroneously in law in referring to the plaint at the instance of the tenant for the purpose of holding that the tenant was not a defaulter.

9. On a consideration of the elaborate arguments adduced on behalf of both sides, I am of opinion that the lower Appellate Court acted erroneously in setting aside the decree for eviction passed by the trial Court inasmuch as the defence of the tenant had been struck out, and there was no justifiable ground for restoring that defence. I have already observed that until and unless that defence was restored, it was not permissible for the tenant to urge his ease before the lower Appellate Court, either by drawing its attention to the facts stated in the plaint, or by advancing any other argument.

10. The point under consideration does not seem to be covered by any reported case. There is an unreported decision of Chunder, J., dated 10th June, 1953 in appeal from Appellate Decree No. 243 of 1953, Sri Gopal Jhawar v. Gangadas Kothari (2), in which it has been held by him that a tenant similarly placed as in this suit is not even entitled to challenge the validity of the notice of ejectment, as the notice is connected with the question of ejectment.

11. One may not agree with the view that in such a case the tenant is not even entitled to question the service or validity of the notice, because the notice is served under section 106 of the Transfer of Property Act and has no direct bearing on the question of eviction, as contemplated in the proviso to sub-section (3) of section 14 of the Rent Control Act of 1950 which imposes a statutory disability on the tenant. The decision of Chunder, J., however supports the view that the tenant whose defence has been struck out is not entitled to challenge the propriety or legality of the decree of the trial Court in appeal except by satisfying the court in the first instance that the rejection of the defence is improper and illegal. As the defence in this particular case was, without doubt, rejected properly by the trial court, it was not competent to the tenant to press his case against eviction in the appeal before the lower appellate court.

12. On grounds set forth above, I allow this appeal and set aside the judgment and decree passed by the lower Appellate Court and restore and confirm those passed by the trial Court. Having regard to the circumstances of the case, I direct that parties will bear their own costs in this appeal. Two months' time is allowed to the tenant to vacate the disputed premises, failing which, the appellant will be entitled to get khas possession thereof by executing the decree.

13. Leave to appeal under clause 15 of the Letters Patent is asked for on behalf of the respondent, but is refused.

S.N.S