Judgment Bhaskar Bhattacharya, J. This first appeal is at the instance of a tenant-defendant in a suit for eviction on the ground of default in payment of rent and directed against the judgment and decree dated 15th day of May 1997, passed by the learned Judge, 4th Bench, City Civil Court at Calcutta, in Ejectment Suit No.83 of 1994 thereby passing the decree for eviction on the ground of default in payment of rent. Being dissatisfied, the defendant has come up with the present first appeal. The case made out by the plaintiff-respondent may be abridged thus: (a) One Durga Charan Pyne, the predecessor-in-interest of the respondents, during his lifetime, was the owner of the premises No.8, Canal Road, Calcutta-22 and upon his death on 29th January, 1992, the respondents, being his widow and the sons, inherited the property as the sole heirs. (b) One Delta Trading Company was a tenant under the said predecessor-in-interest of the respondents in respect of the entire 8, Canal Road and the appellant and some others were the sub-tenants under the said Delta Trading Company. The said Delta Trading Company surrendered their tenancy right to the predecessor-in-interest of the respondents and all the sub-tenants including the appellant became direct tenants of the predecessor-in-interest of the respondents in respect of their respective tenancies with effect from February, 1988. The appellant, thus, became monthly tenant under Durga Charan Pyne in respect of the suit premises at a monthly rental of Rs.800/- according to the English calendar month and paid rent accordingly. (c) The tenants of the said premises including the appellant are all using the property for commercial purposes and under the provision of the Calcutta Municipal Corporation Act only one consolidated rate bill is issued for the entire premises and as such, surcharge of 50 percent over the existing rate has been imposed in respect of the portion of the premises used for commercial and nonresidential purpose. Such surcharge is also included in one bill issued by the Calcutta Municipal Corporation but this surcharge is payable by the respective tenants to the landlord under the provision of the Calcutta Municipal Corporation Act to the extent of half of the consolidated rate. (d) The Calcutta Municipal Corporation enhanced the municipal taxes with effect from fourth quarter in 1985-86 at Rs.1968/- per quarter and imposed Rs.972/- as surcharge with effect from the said period. (d) The Calcutta Municipal Corporation enhanced the municipal taxes with effect from fourth quarter in 1985-86 at Rs.1968/- per quarter and imposed Rs.972/- as surcharge with effect from the said period. Taking into consideration the total rent payable in respect of the said premises, the respondents reasonably apportioned the defendant’s share at Rs.304/- per month payable with effect from January, 1986 and thus, a total sum of Rs.27,664/- became due and payable by the appellant to the respondents from January, 1986 to July, 1993. The appellant having failed and neglected to pay that amount in spite of repeated demands, the respondents by filing the suit sought to recover the same. (e) The last rent payable by the appellant to the respondents in respect of the said premises had been Rs.1104/- per month (rent Rs.800/- + surcharge and half of the municipal tax of Rs.304/-) at the time of determination of the tenancy with effect from 31st August, 1993. (f) The appellant was a defaulter in payment of rent and taxes since November, 1990. The suit was contested by the appellant by filing written statement thereby denying the material allegations made in the plaint and it was specifically denied that apart from the monthly rental of Rs.800/- any other amount was payable by the appellant. The appellant denied that the respondents had any remedy for eviction of the appellant under the provision of the Act or that any amount was due and payable towards occupier’s share of municipal taxes and or surcharge. After entering appearance in the suit, the appellant did not file any application under either Section 17(1) or Section 17(2) or Section 17(2A) of the West Bengal Premises Tenancy Act nor did it comply with the last part of Section 17(1) of the Act. In view of such fact, the respondents came up with an application under Section 17(3) of the West Bengal Premises Tenancy Act complaining that for not complying with the provisions contained in Section 17 of the Act the defence of the appellant against delivery of possession was liable to be struck out. The appellant, however, filed an application seeking clarification of the averments made in the said application under Section 17(3) of the Act by pointing out the exact violation of the provision contained in Section 17 of the Act was not disclosed but the learned Trial Judge rejected such application. The appellant, however, filed an application seeking clarification of the averments made in the said application under Section 17(3) of the Act by pointing out the exact violation of the provision contained in Section 17 of the Act was not disclosed but the learned Trial Judge rejected such application. Ultimately, by order dated 16th November, 1996 the learned Trial Judge allowed the application under Section 17(3) of the Act with a specific finding that the appellant having admittedly not filed any application under Section 17(2) for determination of the rent payable nor having complied with the provision under Sections 17(1), 17(2) and 17 (2A) of the Act, its defence against delivery of possession was liable to be struck out. Ultimately, by the judgment and decree impugned herein the learned Trial Judge decreed the suit on the ground of default in payment of rent. Being dissatisfied, the defendant has come up with the present first appeal. Mr Roy Chowdhury, the learned senior advocate appearing on behalf of the appellant has raised threefold submission in support of the present appeal. First, he has contended that the learned Trial Judge at the time of striking out the defence against delivery of possession having failed to decide the issue of default, such order was ex facie illegal and this Court in exercise of power under Section 105 of the Code of Civil Procedure should set aside the order passed by the learned Trial Judge as by virtue of the said order his client was unable to lead any evidence. Secondly, Mr. Roy Chowdhury contends that it would appear from the averments made in the plaint itself that his client at no point of time paid the additional amount of Rs.304/-assessed unilaterally by the plaintiff and therefore, the rate of rent cannot be said to be Rs.1104/- and such being the position, the suit filed on the ground of default for nonpayment of Rs.1104/- per month was not maintainable. Lastly, Mr. Roy Chowdhury contends that even it will appear from the notice of eviction exhibited that the rate of rent was described as Rs.800/-whereas the respondents alleged defaulter at the rate of Rs.1104/- with effect from December, 1990 which on the face of it is an impossible assertion and therefore, the learned Trial Judge erred in law in passing the decree for eviction on the ground of default. Mr. Mr. Banerjee, the learned senior advocate appearing on behalf of the respondents has, on the other hand, opposed the aforesaid contentions advanced by the Mr. Roy Chowdhury and has submitted that the plaintiffs in the plaint has specifically stated that the rent was Rs.800/- and Rs.304/- was the additional amount payable every month and therefore, the rent should be really treated to be at the rate of Rs.800/-. Mr. Banerjee submits that the appellant not having complied with the provisions contained in the last part of Section 17(1) of the Act, his defence was rightly struck out. Mr. Banerjee next contends that once the defence was struck out for noncompliance of the provision contained in Sections 17(1), 17(2) and 17(2A) of the Act, the learned Trial Judge rightly refused to give any protection to the appellant under Section 17(4) of the Act. He, therefore, prays for maintaining the decree passed by the learned Trial Judge. Therefore, the first question that arises for determination in this appeal is whether the learned Trial Judge was justified in striking out the defence against delivery of possession before arriving at any finding on the issue of default. It appears from the five issues framed that there was no issue as to whether the appellant was a defaulter in payment of rent. It is now settled law that in a suit for eviction on the ground of default in payment of rent, if the landlord intends to strike out the defence against delivery of possession, before invoking such provision, the Court must come to the conclusion that the tenant is a defaulter in payment of rent. Even if, the ground of default is alleged, a tenant may decide not to comply with the provisions contained in Sections 17(1), 17(2) and 17(2A) of the Act and nevertheless, contest the ground for default asserting that he is not a defaulter in payment of rent as alleged and he holds the receipts granted by the landlord for the period of default alleged in the plaint. In such a case, if the defence is struck out for not filing of the application under Sections 17(1), 17(2) and 17(2A) of the Act, the tenant-defendant in spite of having valid receipts showing payment of rent for the period in default will not be able to prove such fact at the time of hearing. In such a case, if the defence is struck out for not filing of the application under Sections 17(1), 17(2) and 17(2A) of the Act, the tenant-defendant in spite of having valid receipts showing payment of rent for the period in default will not be able to prove such fact at the time of hearing. For that reason, in a case filed on the ground of default in payment of rent, the issue of default must be decided before striking out the defence against delivery of possession. The advantage of filing the application under Sections 17(1), 17(2) and 17(2A) of the Act is that even if the tenant is found to be defaulter, by complying with those provisions he can get protection under Section 17(4) of the Act but that does not mean that even though a person is not a defaulter, as alleged, he will be liable to be evicted simply because he has not complied with those provisions. At this stage, we may profitably refer to a decision of a Division Bench of this Court in the case of Gopal Banerjee vs. Manindra Nath Dey reported in 70 CWN 864, where P.B. Mukherjee (as His Lordship then was) sitting with D. Basu, J., in a suit for eviction on the ground of default where allegation of default was disputed, made the following observations: “The point is when the tenant raises question that the rent already paid in advance and lying with the landlords should be adjusted against the rent for the month for which the default is alleged, as March 1964, in this case, can it be regarded as “default” within the meaning of section 17(1) of the Act. We are of the opinion that at the stage of section 17(1) such contention cannot make the tenant a defaulter for the purpose of section 17(1). That question of default must have to be tried at the suit on proper evidence, documentary and oral, for, in most cases, it will depend on the actual terms of the advance payment – the fact of advance payment, the question of any demand for the adjustment apart from the implied agreement which Willes J mentioned in De Nicholls vs. Saunders quoted above. All these questions are part of substantive defence against default. All these questions are part of substantive defence against default. To strike out the defence under section 17(3) on the ground of non-compliance of section 17(1) on such a contention of default which must have to await the trial would in our view be illegal. To do so and to strike out the defence at this stage would for ever bar the defendant from raising the question of default and having it tried out.” For the selfsame reason, if in a suit filed for eviction, a dispute is raised by the defendant that there is no relationship of landlord and tenant between the parties, the consistent view of this Court is not to strike out the defence against delivery of possession for non-compliance of Sections 17(1), 17(2) or 17(2A) of the Act before deciding the issue of the dispute as to relationship between the parties in favour of the landlord because if the defence is struck out merely because the defendant has not filed any application under Sections 17(1), 17(2), or 17(2A) of the Act, he will not be entitled to adduce evidence in support of his plea that there existed no relationship of landlord and tenant between the parties. (See Synthetic Plywood vs. Manjulika Bhadury reported in 1998(1) CHN 398). We, therefore, find substance in the contention of Mr. Roy Chowdhury, the learned senior advocate appearing for the appellant that before framing issue of default or deciding the issue of default, the learned trial Judge erred in law in striking out the defence against delivery of possession, as a result, his client could not substantiate his plea that he was not a defaulter. At this stage, Mr. Banerjee pointed out that there was specific finding of the learned Trial Judge while striking out the defence against delivery of possession that the default was admitted in the written statement and therefore, there was no mistake on the part of the learned Trial Judge in striking out the defence against delivery of possession. We have seen that the defendant has specifically denied that he is liable to pay any amount of surcharge or municipal taxes in addition to the rate of rent of Rs.800/- and therefore, for non-payment of the amount at the rate of Rs.1104/- from the month of December, 1990, as alleged in the plaint, the appellant cannot be branded as a defaulter. Moreover, we find substance in the contention of Mr. Roy Chowdhury that arbitrary fixation of Rs.304/- as additional amount was illegal and the suit cannot be filed on the ground of default in payment of the rent unilaterally fixed by the landlord which was Rs.304/- more than the last agreed amount of rent of Rs.800/-. There is admission in the plaint that the respondents never paid the additional amount and such being the position, the suit filed by treating Rs.1104/- to be the last rent payable was not tenable. Therefore, no purpose would be served by even remanding the matter back to the Trial Court for a decision on the issue of default. We now propose to deal with the two decisions cited by Mr. Banerjee. In the case of Santi Nath Sha vs. Santosh Kumar Chatterjee reported in Cal. L.T. 1991(2) HC 391, a Division Bench of this Court held that there is nothing in the West Bengal Premises Tenancy Act preventing a Court from disposing of an application under Section 17(3) of the Act without taking evidence if default on the part of the defendant is not disputed by him. In this case, the default being disputed, the principles laid down in that decision cannot have any application. In the case of C. Muralee Dharan vs. Sm. Arati Nath reported in 87 CWN 260, it was held that for the purpose of striking out defence against delivery of possession under Section 17(3) of the Act all that is necessary is that there must be apparent violation or non-compliance of the provisions contained in Sections 17(1), 17(2) or 17(2A) of the Act and in a given situation, if such fact is established, the Court without formal application, can strike out defence against delivery of possession. In our view, the principles laid down in that decision has no application to a case where vague allegation of non-compliance of the aforesaid previsions has been made by the landlord and the tenant demands disclosure of specific violation of the provisions mentioned above. The decisions cited by Mr. Banerjee, thus, have no application to the facts of our case. We, therefore, find that in this case the suit filed by the plaintiff alleging that Rs.1104/-is the monthly rental payable by the defendant and on that basis he was a defaulter from December, 1990 was not tenable in the eye of law. The decisions cited by Mr. Banerjee, thus, have no application to the facts of our case. We, therefore, find that in this case the suit filed by the plaintiff alleging that Rs.1104/-is the monthly rental payable by the defendant and on that basis he was a defaulter from December, 1990 was not tenable in the eye of law. The plaintiff has valued the suit for the purpose of eviction by multiplying Rs.1104/-by 12 and thus, treated the rent as Rs. 1104/- according to his own assessment although never agreed to by the parties nor was that amount ever paid by the tenant. The learned Trial Judge, thus, erred in law in passing a decree for eviction on the ground of default in payment of rent as alleged in the plaint. We, therefore, set aside the judgment and decree passed by the learned Trial Judge and dismiss the suit with the finding that the rent agreed to be paid was Rs.800/-a month and therefore, the suit filed by treating the appellant as defaulter in payment of rent from December, 1990 at the rate of Rs.1104/- was not maintainable. In the facts and circumstances, there will be, however, no order as to costs.