Judgment: This appeal is heard along with an application under S. 115 of the Code of Civil Procedure made in the alternative in the said appeal. This appeal arises out of the judgment and decree passed by the leaned Additional District Judge. 2nd Court, Howrah in title Appeal No.7 of 1976 reversing the Judgment and decree passed by the learned Munsif, 3rd Court. Howrah in Title Suit No. 190 of 1974. 2. The defendant is the appellant in the instant appeal and the said Title suit No. 190 of 1974 was instituted by the plaintiff for eviction of the defendant from the suit premises on the ground of reasonable requirement of the plaintiff. The plaintiff contended that the defendant was a monthly tenant under the plaintiff at a rental of Ra 125/- payable according to English calendar month and the said tenancy of the defendant had been duly determined by a notice to quit. As the plaintiff reasonably required the suit premises and as the tenancy was duly determined And the defendant failed to deliver up vacant possession the aforesaid suit had to be instituted. The defendant contested the suit by filing a written statement contending Inter alia, that the suit was not maintainable and the suit was had for partial eviction and the plaintiff did not require the suit premises for his own use and occupation. The other allegations made in the plaint that the father of the plaintiff was blind and the mother of the plaintiff was incense were also denied by the defendant. It appears that the trial court dismissed the suit inter alia, on the finding that the plaintiff failed to establish that the plaintiff reasonably required the suit premises for his own use And occupation it may be noted in this connection that during the argument of the said case, it was contended on behalf of the plaintiff that the defendant not having deposited rents an accordance with S. 17(1) of the west Bengal Premises Tenancy Act within the specified time the defence of the defendant was liable to be struck out under S. 17(3) of the said Act. The said argument was not accepted. The finding of the learned Munsif on the aforesaid submission made on behalf of the plaintiff was in the following effect. The said argument was not accepted. The finding of the learned Munsif on the aforesaid submission made on behalf of the plaintiff was in the following effect. It has been submitted by the learned lawyer for the defendant that the defendant is not a defaulter as he has said rents and in this connection be refers to challans marked Ext. B to B/14. But considering the issues of this case as well as allegation wade by the plaintiff in the plaint I find that it is needless to discuss anything about the merits of the aforesaid submissions made by the learned lawyer for the defendant regarding the deposit of rents." 3. Against the said judgment and decree of the trial court the plaintiff landlord preferred the said title Appeal before the learned Additional District judge. Howrah and it was contended on behalf of the plaintiff landlord that under the provisions of S 17(3) of the West Bengal 'Premises Tenancy Act it was incumbents on the court below to strike out the defence of the defendant tenant and the court below acted illegally in not striking out the defence of the defendant but proceeding to consider the case of the parties on merits. It appears that the court of appeal below came to the finding that on the face of the challans, the defence against delivery of position of the defendant should have been stuck out under S. 17(3) of the West Bengal Premises Tenancy Act and there was no discretion left with the trial court in the matter of striking out defence under S. 17(3). The court of appeal below was also of the view that it was immaterial as to whether the suit was instituted on the ground of default or on other ground as enumerated in S. 13 or the said Act. the Court of appeal below held that under the provisions of S. 17 a duty was cast on the tenant to go on depositing the rent within the specified time and when the court attention was drawn that such payment was not made the trial court should have struck out the defence of the tenant, In that view of the matter, The learned Additional District Judge set aside the judgment and decree passed by the trial court and sent the case back on remand to the trial court for consideration in accordance with law. As aforesaid against the said order of remand the instant appeal along with an up application under S. 115 C.P.C. made in the alternative have been made by the tenant. 4. Mr. Mukherjee, this learned Counsel appearing for the appellant, contended that the suit for eviction was not on the ground of default but on the ground of reasonable requirement and in any view of the matter, it was the duty of the trial Court to consider whether the plaintiff had established the case for eviction on the ground of reasonable requirement. Mr. Mukherjee contended that even assuming that the defence against delivery of possession could have been struck out by the trial court although no such application was made at proper time, the trial court was under a duty to consider the evidence adduced by the plaintiff for the purpose of coming to a find and as to whether the plaintiff had proved his case, for eviction of the defendant on the ground of reasonable requirement. Mr. Mukherjee contended that in such circumstances an ordre of remand was uncalled for and the court of appeal below failed to discharge the duties cast on an appeal court. 5. Mr. Mukherjee, further contended that there may not be an estoppel against the statute but there may be a Case of waiver of right given to a party under a statute Mr. Mukherjee contended that if the plaintiff wanted to avail the right of the plaintiff to have the defence of the defendant against delivery of possession struck out the plaintiff was to make an application under S. 17(3) of the said Act before allowing the defend ant to lead his evidence on the merits of the case. Admittedly in the instant Case, the plaintiff did not make any such application and also did not object to the defendant leading evidence in support of the defendant's cue and/or to cross-examine the plaintiff's, witnesses to establish the Case of the defendant. In such circumstances it must he held that the right which was given to the plaintiff landlord in having the defence of the defendant struck out against delivery of possession had been waived. For this contention Mr. Mukherjee referred to a decision of this court made in the case of Chotelal Shaw v. Ram Golam Shaw & ors reported in AIR 1975 Cal 436 . For this contention Mr. Mukherjee referred to a decision of this court made in the case of Chotelal Shaw v. Ram Golam Shaw & ors reported in AIR 1975 Cal 436 . It was held in the said case that 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 and such waiver may be express or implied. It may be intentional or due to inaction or gross carelessness or absence of diligence 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. It was further held in the said case that the procedure referred to in S.17(3) is to be followed and complied with in the trial court there the suit is pending for hearing and decision and the plaintiff landlord if willing to exercise his right under sub-s (3) for getting the defence struck out must do so in the trial court and not in the appellate court whose the appeal a waits decision. That right again must be exercised before the defendant start leading evidence in support of bit defence against the grounds of eviction under S. 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 case for the purpose of striking out the defence of ,he defendant which has already been considered for the decision of the casa. Relying on the aforesaid decision, Mr, Mukherjee con tended that in the instant case no application under S 17(3) was made by the plaintiff landlord and it was only during the course of argument a suggestion was give on behalf of the plaintiff that defence of the defendant was liable to be struck out on the basis of challans submitted by the defendant. Mr. Mr. Mukherjee contended that on the face of the challans, it obviously appears that rents for some of the months were not deposited within the 15th of the month following but if any application under S. 17(3) was made by the plaintiff landlord in proper time the defendant could have established before the court that the delay was censed not due to the fault of the defendant but due to the laches of the ministerial staff and/or exigencies of the business of the court. Mr. Mukherjee also contended that when the plaintiff did not make all application under S. 17 (3) and allowed the defendant to lead evidence it must be held that the defendant had waived the right either deliberately or due to carelessness on the part of the plaintiff. 6. Mrs. Sircar, the learned counsel appearing for the respondent, however, contended that the provision of S. 17(3) are mandatory provisions and the court hat no discretion in the matter of striking out defence against delivery of possession if the plaintiff can establish that provision of Ss. 17(1) and 17(2) had not been complied with. For this contention Mrs. Sircar referred to a decision of this court made in the case of Golam Kader v. Hazi Lutfar Rahman reported in 72 CWN 585. Mrs Sircar also referred to the decision of the Supreme Court made in the case reported in AIR 1957 SC 540 for the proposition that the appeal is also a continuation of the suit and a such even at the appellate stage an application under S. 17(3) was maintainable. In answer to the aforesaid contention raised by Mrs. Sirear. Mr. Mukherjee contended that there is no quarrel with the proposition that provisions of S. 17(3) are mandatory and the court has no discretion in the matter of striking out defence against delivery of possession if it is established that the defendant failed to comply with the provisions of S. 17(1) and 17(2) of the Act. Mr. Mukherjee contended that the right given under the nature under S. 17(3) of the Act can very well be waived and in the facts and circumstances of the cue it must be held that such right was waived by the landlord and as such it was not possible to contend before the appellate court that defence against delivery of possession should have been struck out by the trial court. 7. 7. After considering the submissions made by the learned counsels appearing for the parties it appears to me that in the instant case there were no sufficient materials on the basis of which the court could come to the finding that defence of the defendant against delivery of possession could have been struck out to my view, until and unless proper application is made in this regard and opportunity is given to the tenant to explain the alleged laches on the part of the defendant to comply with the provisions of S. 17(1) and 17(2) of the Act, the court cannot strike out the defence against delivery of possessions simply because during the argument of the case such contention was railed on behalf of the plaintiff. I respectfully agree with the view expressed in the said case Chotelal Shaw v. Ram Golam that if the plaintiff landlord intends to avail the advantage given to the plaintiff landlord under S. 17(3), be must avail such opportunity in proper time and if be does not avail such opportunity but allows the defendant to contest the case on merits and lead evidence, it must be held that the plaintiff landlord had waived his rights udder S. 17(3) of the Act. That apart, Mr. Mukherjee is also justified in contending that even assuming that defence against delivery of possession was liable to be struck out in the instant case, it was the duty of the court of appeal below to consider the evidence led by the plaintiff for the purpose of coming to the finding as to whether the plaintiff had established his case of reasonable requirement. In my view the court of appeal below has failed to discharge the duties and obligations cast on it as an appellate authority. 8. Accordingly the judgment and decree of the court of appeal below is set aside and the court of appeal below is directed to consider on merit a to whether the plaintiff landlord had established his case reasonable requirement for eviction of the defendant. No order is made as to costs. 9. It the record be sent down to the court below as expeditiously as practicable and it is but only desirable that the court of appeal below should dispose of the appeal as early as possible. The revisional application in the alternative is also disposed of accordingly. No order is made as to costs. 9. It the record be sent down to the court below as expeditiously as practicable and it is but only desirable that the court of appeal below should dispose of the appeal as early as possible. The revisional application in the alternative is also disposed of accordingly. Remitted to lower appellate court for consideration on merits.