1. This second appeal by the defendant is against the decision of the Additional District Judge, Baraset reversing the judgment and the decree passed by the Munsif dismissing the suit of the plaintiff for ejectment against the defendant.

2. The plaintiff Ram Golam Shaw brought the suit against the defendant Ramdas Chotelal, a monthly tenant in respect of the suit premises at a rental of Rs. 23 payable according to English Calendar month. The allegations made in the plaint are that he has been carrying on a cloth business at a rented house. Due to the business at the rented house, the plaintiff is suffering inconvenience and wastage of money in spite of his having a house of his own. Moreover, the suit premises is very much suitable for his business. His landlord is demanding excessive rent for the room where he is carrying on business. He asked the defendant to vacate the premises but his request has been fruitless. The plaintiff, moreover, requires the suit premises for building and rebuilding as the house has become old and delapidated. It has further been alleged that the defendant has been a defaulter in payment of rents from the month of October, 1970 to April, 1971. The plaintiff after service of notice of ejectment on the defendant filed the suit for eviction on the ground that he requires the suit premises for his own use and occupation and for building and rebuilding and also on the ground that the defendant has been in arrears of rent for seven months. The defendant filed a written statement stating that he has been wrongly described as Ramdas Chotelal Shaw, his name is Chotelal Shaw. The defendant has denied the allegation about nonpayment of rent and challenged the correctness of the allegations that the plaintiff requires the suit premises either for reasonable requirement for his own use and occupation or for the purpose of building and rebuilding.

3. The learned Munsif upon consideration of the evidence came to the finding that in a previous suit the defendant signed his name as Ramdas Ohotelal and that deposits of rents were made by the defendant describing himself as Ramdas Chotelal. He found that the defendant was correctly described. Regarding the arrears of rent, the learned Munsif found that the defendant duly deposited the rents for the alleged period of default and on hearing the parties upon an application filed under Section 17(2) of the West Bengal Premises Tenancy Act, he was satisfied that there was no amount due to be deposited towards any alleged default and that the current rents were being deposited by the defendant month by month. The learned Munsif, therefore, found that there was no necessity for the defendant to deposit anything towards arrears of rent. On the question of reasonable requirement for the plaintiffs own use and occupation of the suit premises, the learned Munsif did not find any requirement as alleged by the plaintiff. There was a detailed discussion on the question of requirement and the plaintiff's plea was rejected. The issue relating to requirement of the suit premises for building and rebuilding was abandoned by the plaintiff in the trial court and not pressed. The suit of the plaintiff was, therefore, dismissed.

4. Against the dismissal of the suit by the trial court an appeal was taken by the plaintiff before the District Judge and the same was disposed of by the Additional District Judge, Baraset. Regarding the misdescription of the defendant, the learned Additional District Judge held that the defendant had been correctly described. Regarding the question of reasonable requirement of the plaintiff for use and occupation, the learned Judge concurred with the trial court that the plaintiff had not been able to make out a case for reasonable requirement for use and occupation. As for the ground of default in payment of rent, the learned Judge held that as during the pendency of the suit the defendant deposited the amount at the rental rate for the month of June, 1971 on 26th of July, 1972 beyond the 15th of the following month, the said deposit was not valid and therefore there had been a violation of the provision of Section 17 (11 and on the submission of the plaintiff-appellant the defence against delivery of possession was struck out and the finding of the trial court on the question of default was overruled. Accordingly, the first appellate court below allowed the appeal decreeing the suit after setting aside the decision of the trial court. Against the said judgment of the learned Judge, the instant appeal has been preferred by the tenant-defendant.

5. The first point that has been urged by the learned Advocate appearing on behalf of the appellant is that the learned Judge below erred in law in allowing the first appeal and decreeing the suit on the ground that there had been no valid deposit for the month of June, 1971 during the pendency of this suit and that there had been delay in making such deposit. It has been argued that the learned Judge below ought not to have struck out the defence in the appeal when no such prayer was made at any time in the trial court or during the trial of the suit. The contention of the appellant is that the right of the plaintiff-landlord to have the defence struck out for invalid deposit of any amount under Section 17(1) was waived. To appreciate this submission on the part of the appellant, we are to note the relevant facts of the present case. Along with the appearance in the suit, the tenant-defendant filed a petition under Section 17(1) and (2) of the West Bengal Premises Tenancy Act and an objection was filed by the plaintiff to that application. The defendant was permitted by the Court to deposit rents month by month during the pendency of the suit. The petition relating to the prayer under Section 17(2) of the West Bengal Premises Tenancy Act was heard and on 18-3-71 the learned Munsif found that the challans filed by the defendant showing deposit of rents proved that all the rents from October, 1969 onwards had already been deposited in time and as such it was ordered that the defendant was not to deposit any further amount towards arrears of rent. Subsequent to this order, admittedly, there was a delay of about 11 days on the part of the defendant to deposit the amount at the rental rate for the month of June, 1971. Deposits in respect of other months were within time. The suit was heard in August, 1971 and during trial evidence was adduced on both sides. At no point of time in the trial court, the plaintiff exercised his right to have the defence struck out under Section 17(3) of the West Bengal Premises Tenancy Act for non-deposit or invalid deposit of an amount equivalent to rent for any particular month during the pendency of the suit under Section 17(1). Now the question arises whether there was waiver on the part of the plaintiff as to his right under Section 17(3) in respect of the invalid deposit of the rental amount for the month of June, 1971. According to the learned Judge below, the provision under Section 17(3) is mandatory and therefore, it leaves no discretion to the Court to condone any delay in depositing the amount. Even if there is any mandatory provision which confers any right or privilege or advantage to any of the parties to the litigation, such right, privilege or advantage may be waived by the party in whose favour the provision of law stands. For citing an example, we may refer to the prevision contained in Section 80 of the CPC for service of notice upon the Government or the Collector of the District as mentioned therein before the institution of the suit. That provision is no doubt mandatory. The object of the notice is to give an opportunity to the Officers concerned as mentioned in the section to investigate the cause of the complaint or to make amends if thought fit before the Government is impleaded. This is a special advantage or privilege given to the authority of the State. This advantage or privilege given by law, can certainly be waived, that is to say the authority or the officers mentioned in Section 80 of the Code of Civil Procedure are competent to waive the notice and they may be estopped by their conduct from pleading the want of notice even at a late stage of the trial if not already pleaded earlier. In this connexion the decisions of this Court in Bhola Nath Roy v. The Secretary of State for India in Council, (1913) 17 Cal WN 64 may be looked into. Waiver may be express or implied. It may be intentional or due to inaction or gross carelessness or absence of deligence on the part of the party having the right or advantage in his favour. The party having such right or privilege has a discretion to exercise the same. The landlord-plaintiff has under Section 17(3) of the West Bengal Premises Tenancy Act a right to have the defence against delivery of possession struck out in case the defendant does not comply with the provisions of Section 17(1) and (2) of the West Bengal Premises Tenancy Act but the plaintiff may or may not exercise that right. By acquiring such right the plaintiff may apply to exercise such right before the Court to put the tenant-defendant in precarious position. In case of non-compliance of Section 17(1) and (2) the plaintiff, if he so chooses, may not file any application under Section 17(3) of the West Bengal Premises Tenancy Act. Whatever the case may be, if the right under Section 17(3) is not exercised by the plaintiff, the suit shall be decided on merits at the time of trial and the defendant at that time may not get redress or benefit. In the present case, admittedly, the plaintiff knew that the defendant filed an application under Section 17(1) and (2) of the West Bengal Premises Tenancy Act and that the Court allowed the defendant to deposit rental amounts month by month under Section 17(1). The plaintiff was conscious of his own right given under Section 17(3) The plaintiff before the starting of the hearing of the suit or before the defendant started leading evidence at the time of trial or at any point of time before the judgment was delivered, could have exercised the right to have the defence of the defendant against delivery of possession struck out. He could have asked the defendant to produce all the challans showing deposit of amounts equivalent to rent which were to be deposited by the defendant. But this was not done by the plaintiff. He made no attempt to exercise his right. He was not prevented by the defendant in any manner from exercising his right under Section 1.7 (3). No objection was raised during the trial by the plaintiff as to any illegal deposit made by the defendant for the month of June, 1971. On the other hand at the time of trial the defendant in due course entered into defence and adduced evidence on his side and examined witnesses without the least objection from the side of the plaintiff. With full knowledge of his right to have the defence against delivery of possession struck out, the plaintiff raised no objection to the defendant's evidence. The conduct on the part of the plaintiff and the facts and circumstances of this case clearly indicate that the plaintiff did waive his right given to him under Section 17(3) of the West Bengal Premises Tenancy Act. There is no material to show that the plaintiff did not intentionally waive his right. His inaction to exercise his right or his gross carelessness or absence of diligence in the matter of taking action under Section 17(3), even if there (sic) would amount to waiver when by such conduct the defendant has gained some advantage in his favour and when judgment had gone against the plaintiff. After the judgment had been passed against the plaintiff, he should not be heard for exercising the right under Section 17(3) of the West Bengal Premises Tenancy Act in the appellate stage. If such right is allowed to be exercised by the plaintiff at the appellate stage to the prejudice of the defendant, when such right was not previously exercised by the plaintiff in spite of sufficient opportunity, it would be unjust, inequitable and against the principles of natural justice. This attempt to exercise right under Section 17(3) of the West Bengal Premises Act at this late stage, cannot be regarded as bona fide and permissive. I should hold that the learned Judge below acted illegally causing great injustice by directing on the prayer of the appellant during argument, to strike out the defence of the defendant against delivery of possession. It is to be noted that in the memorandum of appeal filed by the plaintiff before the first appellate court, there was no ground touching Section 17(3) of the West Bengal Premises Tenancy Act.

6. In the case before me, the finding of the trial court is that there was no arrear of rent at the time of hearing of the suit. The arrears as alleged by the plaintiff were all deposited in time including the amounts at the rate of monthly rent during the pendency of the suit except for the month of June, 1970. The plaintiff could be entitled to get a decree for eviction on the ground of arrears of rent as alleged by him but the allegations proved incorrect. When the suit was filed by the plaintiff, the defendant was not in arrear of rent for any month and therefore, the suit could not succeed even if there was any default in deposit of amounts at the rate of the rent per month, during the pendency of the suit. At best that could give the plaintiff a right to have the defence against delivery of possession struck out. But, simply by getting the defendant's defence against delivery of possession struck out, the plaintiff cannot succeed in his case on the ground of default if the arrears of rent as contemplated in Section 13 of the West Bengal Premises Tenancy Act be not proved. Even if the plaintiff could get the benefit under Section 17(3) of the West Bengal Premises Tenancy Act, that would not have given any decree on the ground of default in payment of rent unless the ground is proved. The learned Additional District Judge below erred in law to strike out the defence against delivery of possession of the defendant. He ought to have held that the appellant had already waived his right under sub-section (3) of Section 17 of the West Bengal Premises Tenancy Act during the pendency of the suit. He cannot in the appeal after the suit had been decided on merits, pray for striking out the defence of the defendant to undo a judgment passed against him. The appellate court should not encourage such unjust, illegal and unreasonable demand of the plaintiff.

7. From another standpoint, the action taken by the appellate court below to strike out the defence cannot be held to be legal and sustainable. Sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act says that within the period mentioned therein after appearance in the suit or proceeding filed by the landlord for ejectment of the tenant on any ground mentioned in Section 13 of the Act, the latter shall subject to sub-section (2) of Section 17 deposit arrears of rent if any with interest as indicated and shall go on depositing amount at the rate of rent month by month. sub-section (2) of Section 17 says among other things that in any suit or proceeding referred to in sub-section (1), if the tenant disputes as to amount of rent payable by him, he shall within the time mentioned deposit the amount admitted by him along with an application for determination of the rent payable by him. The Court shall then determine the amount and the tenant shall deposit the same in the manner and within the time to be specified in the order of the court. Sub-section (2A) speaks about the extension of time for deposit as mentioned in sub-section (1) or (2). The next relevant sub-section is (3) which says that if the tenant fails to deposit or pay any amount or instalment, as the case may be referred to in sub-sections (1), (2) and (2A) of Section 17, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. From the reading of sub-sections (1), (2), (2A) and (3) of Section 17 of the Premises Tenancy Act, I have no doubt to hold that the procedures referred to therein are to be followed and complied with in the trial court where the suit is pending for hearing and decision and that the plaintiff-landlord, if willing to exercise his right under subsection (3) for getting the defence struck out, must do so in the trial court and not in the appellate court where the appeal awaits decision. That right again must be exercised before the defendant starts leading evidence in support of his defence against the grounds of eviction under Section 13 of the West Bengal Premises Tenancy Act. Once the trial court decides the case on merits on consideration of the evidence on record including that of the defendant adduced without any objection by the landlord and the suit or proceeding is disposed of, it will have no jurisdiction after the judgment to recall the same for the purpose of striking out the defence of the defendant which has already been considered for the decision of the case. Such interference is unthinkable if the judgment has been passed in favour of the defendant. The language of Section 17 clearly says that the landlord can have the defendant's defence against delivery of possession struck out under sub-section (3) in the trial court alone and that such right cannot be claimed for the first time before the appellate court. Besides the scheme of Section 17 and the language in sub-sections (1), (2), (2A) and (3), we get at the end of sub-section (3), “……… the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit”. The word ‘suit’ is significant. There is no indication anywhere to suggest that in the appellate stage the court can strike out the defence to dismiss the suit. Rather the very language in sub-section (3) clearly indicates that the defence shall be struck out before the hearing of the suit in the trial court is concluded. The word ‘suit’ does not include or imply appeal in sub-section (3). There is no provision in the Act giving any power to the appellate court to strike out defence at the instance of the landlord. Had there been any such intention it would have been clearly stated that the appellate court would proceed with the hearing of the appeal by striking out defence. In the West Bengal Premises Tenancy Act, 1956 there is reference to appeals and appellate jurisdiction of the Court for doing certain function. For example, to mention one instance, there is such reference to appellate jurisdiction in Explanation under sub-section (1) of Section 17-D.

8. In this connexion I have already noticed that the provision of subsection (1) of Section 17 of the Premises Tenancy Act is a procedure to be followed during the pendency of the ‘suit’ as in the case of other sub-sections (2), (2A) and (3) observed hereinbefore. Regarding sub-section (1), R.N Dutt, J. in the case of Radharani v. Angurbala, (1963) 67 Cal WN 501, held as follows:—

“……… Lastly the suit may be disposed of after trial on merits. The suit may either be dismissed or decreed. If the suit is dismissed, the tenant continues to be a tenant but if decreed, he ceases to be a tenant. But in any case the suit ceases to be pending after such disposal and operation of sub-section (1) comes to an end. There may be an appeal against the decision of the trial court. During the pendency of the appeal there is no liability to deposit rent under sub-section (1) ……………”

9. In the same line of thought it may also be said that after the disposal of the suit by trial court on merits, the suit comes to an end and in the appellate court there can be no question of striking out of the defence and proceeding with the hearing of the suit which has already been decided. In the view, I have taken as discussed earlier, I should hold that the appellate court below acted illegally by striking out the defence as stated in the judgment and decreeing the suit on that ground although it did not disturb the findings of the trial court that the plaintiff had failed to prove the grounds of his reasonable requirement for the suit premises and of default in payment of rent as required under law.

10. The evidence on record justifies the dismissal of the suit 10. In view of my finding above, the appeal is allowed with costs. The judgment and the decree of the learned Subordinate Judge in the appeal below are set aside and the judgment and the decree of the trial court are restored. The appellant shall also get the costs in the courts below.

11. Appeal allowed.