JUDGMENT Subhro Kamal Mukherjee, J. 1. This is an appeal against the judgment and decree dated September 30, 1999 passed by the learned Judge, Third Bench, City Civil Court at Calcutta, in Ejectment Suit No. 273 of 1983. The suit was instituted, inter alia, on the grounds of default in payment of rent and nuisance and annoyance. 2. In the written statement, however, the defendant took a plea that he was a thika tenant. 3. In our view, the learned judge was justified in rejecting the claim of thika tenancy by the defendant. The learned judge, rightly, relied upon exhibit No. 28, that is, a letter written by the learned advocate for the defendant, admitting that the defendant was a monthly premises tenant in respect of the suit premises at a monthly rental of Rs. 60/- (Rupees sixty) only payable according to English calendar. In the said letter dated May 28, 1982, which was addressed to the landlord, on instructions from the tenant, the learned advocate for the tenant never asserted that the tenant was a thika tenant. 4. Therefore, we concur with the learned trial judge that the plea of thika tenancy by the defendant was an afterthought. 5. However, during pendency of the suit, an application under sections 17(2) and 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956 was filed. The learned Trial Judge, by order dated August 31, 1984, dismissed the said application for default. 6. An application under section 151 of the Code of Civil Procedure was filed by the tenant for recalling of the said order. But, the learned Trial Judge, by an order dated January 3, 1985, rejected the said application under section 151 of the Code of Civil Procedure holding, inter alia, that the provisions under section 151 of the Code of Civil Procedure had no application. 7. The tenant came up in revision before this Court. The revisional application was registered as Civil Order No. 513 of 1985. Bimal Chandra Basak, J. (as the Hon'ble Chief Justice then was), by judgment and order dated April 6, 1989, disposed of the revisional application, inter alia, directing the learned trial judge to dispose of the application under section 17(2) of the West Bengal Premises Tenancy Act, 1956, within one month from the date of communication of the order, to the Trial Court. 8. 8. However, the said order dated April 6, 1989 was modified, by order dated July 5, 1989 directing the learned Trial Judge to dispose of the application under sub-section (3) of section 17 of the West Bengal Premises Tenancy Act, 1956, in place and instead of the application under sub-section (2) of section 17 of the said Act, within one month from the date of communication of the order to the Trial Court. 9. In the Trial Court, however, the application under sub-section (3) of section 17 of the said Act was not pressed. 10. The learned Trial judge although found that the plaintiff failed to prove his case of nuisance and annoyance, but granted the decree for eviction on the ground of default. 11. We are unable to accept the observations of the learned Trial Judge, in the order dated January 3, 1985, that an application under section 151 of the Code of Civil Procedure was not maintainable for recalling of an order dismissing for default an application under sections 17(2) and 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956. 12. The learned Trial Judge dismissed an application for default. The litigant came before the Court offering explanation for his non-appearance with a. prayer to recall such order. It was for the Court either to accept such explanation' and to grant relief to the litigant or to reject such explanation and to refuse the relief prayed for. However, by no means, the application could be rejected holding that section 151 of the Code of Civil Procedure had no application. It is for the litigant to choose the remedy and it is for the Court to grant or deny the relief having regard to the facts and circumstances of the case. We see no reason then as to why the frame of the cause be determinative. We are, however, of the firm opinion that the Trial Court in exercise of its inherent power could certainly recall the exparte order dismissing the said application for default. 13. We see no reason then as to why the frame of the cause be determinative. We are, however, of the firm opinion that the Trial Court in exercise of its inherent power could certainly recall the exparte order dismissing the said application for default. 13. In Sri Iswar Sridhar Jiew vs. Arun Lall Sharma reported in ILR (1975) 2 Cal 704 it was held that when the Trial Court did not dispose of the application under section 17(2) of the West Bengal Premises Tenancy Act, 1956, without determining the dispute raised or the amount of rent, if any, the defendant was liable to pay, it was not proper for the Trial Court to entertain the issue regarding default. 14. In Pulin Kumar Chowdhury vs. Sachindra Mohan Bose and another reported in 1978 (1) CLJ 645 it was held that sub-section (2A) of section of the West Bengal Premises Tenancy Act, 1956 started with the non-obstante expression "notwithstanding anything contained in sub-section (1) or subsection (2)..." Therefore, sub-section (2A) of the said Act engrafted an exception to the provisions of sub-section (1) and sub-section (2) to the extent contained in sub-section (2A). Further, the proviso to clause (b) of sub-section (2A) lays down that where payments were permitted by installments such sum should include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section was to be made, with interest on any such amount calculated at the rate specified in sub-section (1) from the date when the amount was payable up to the date of such order. Therefore, it was clear that the Court in making an order under sub-section (2A)(b) should include the total amount due up to the end of the month previous to the month in which the said order was being made. 15. In our view, as the Court itself, through inadvertence, failed to discharge its statutory duty in calculating the arrears of rent and interest to be paid by installments, in terms of the said section 17(2A)(b) read with the proviso therein, there could be no question of waiver of statutory provision. 15. In our view, as the Court itself, through inadvertence, failed to discharge its statutory duty in calculating the arrears of rent and interest to be paid by installments, in terms of the said section 17(2A)(b) read with the proviso therein, there could be no question of waiver of statutory provision. Unless and until such application is disposed of determining the dispute raised or the amount of arrear, if any, the tenant was liable to pay, tire provisions of sub-section (3) of the said section 17 could not be invoked. Only after the valid order under sub-section (2A)(b) of the said section 17 is made there is breach of said order, the question of directing the striking of the defence of the defendant can arise. 16. The learned Trial Judge has failed to discharge his statutory liability of determining the arrears of rent and interest payable. On the contrary, the learned judge dismissed the application filed under provisions of sub-sections (2) and (2A)(b) of the said section 17 of the West Bengal Premises Tenancy Act, 1956 for default. Therefore, the decree on the ground of default cannot be sustained. 17. The impugned judgment and decree are set aside. 18. The suit is restored to its file and number and remanded to the Trial Court for disposal in accordance with the directions contained in our order. 19. Mr. Bidyut Kumar Banerjee, learned senior advocate, appearing on behalf of the plaintiff/respondent, submits that presently the plaintiff requires the suit premises reasonably. 20. It will be open to the plaintiff to apply for amendment of the plaint and as and when an application for the amendment of the plaint is made, the learned trial judge shall consider the application in accordance with law. We express no opinion. 21. We, however, direct the learned Trial Judge to dispose of the application under sub-sections (2) and (2AXb) of section 17 of the West Bengal Premises Tenancy Act, 1956, within a month from the date of communication of this order. 22. The parties are directed to appear before the learned Trial Judge on August 31, 2012 when the learned Trial Judge shall fix a date for disposal of the said application and the suit as expeditiously as possible. 23. With the aforesaid directions, the appeal is allowed. 24. We make no order as to costs. 22. The parties are directed to appear before the learned Trial Judge on August 31, 2012 when the learned Trial Judge shall fix a date for disposal of the said application and the suit as expeditiously as possible. 23. With the aforesaid directions, the appeal is allowed. 24. We make no order as to costs. The office is directed to send down the lower Court's records together with the copy of this order to the learned Trial Judge by special messenger at the cost of the plaintiff/respondent. Let such costs be put in by Friday next. I agree. Appeal allowed