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Assailing the impugned orders Mr. Souradipta Banerjee, learned advocate appearing for the petitioners contended that the learned Court below committed an error of law in passing the first impugned order dated November 28, 2016 refusing to allow the petitioners to deposit the arrear rent, from December, 2013 to December, 2016 together with statutory interest thereon. According to him, when the petitioners are ready to deposit the arrear rent from December, 2013 to December, 2016 the learned Court below ought to have recalled the order dated November 23, 2015 striking out the defence of the petitioners against delivery of possession. He next contended that although the application filed by the opposite parties under Section 7(3) of the Act of 1997 has been allowed and the petitioners' defence against delivery of possession has been struck out, but the learned Court below further committed an error of law in not allowing the petitioners, as the defendants in the eviction suit, to adduce evidence with regard to the validity of the notice under Section 6(4) of the Act of 1997. In support of such contention, Mr. Banerjee placed reliance on the decision of the Supreme Court in the case of Modula India v. Kamakshya Singh Deo, reported in AIR 1989 SC 162 and a decision of the learned Single Judge of this Court in the case of Rameswar Kumar vs. Biweswar Lal reported in 86 CWN 72. It was urged that the power of the Court in an eviction suit to strike out the defence of the defendant tenant under Section 7(3) of the Act of 1997 is same as was conferred under the previous West Bengal Tenancy Act of 1956 (in short "the Act of 1956") and as such, the decision of the Supreme Court in the case of Modula India(supra) and the decision of this Court in the case of Rameswar Kumar (supra) are applicable in the present case covered by the Act of 1997.

On the other hand, Mr. Jahar Chakraborty, learned advocate appearing for the opposite parties submitted that in the instant case the decision of the learned Court below striking out the defence of the petitioners against delivery of possession has attained finality and there is no scope to allow the petitioners to deposit any arrear rent for any period. Therefore, according to him, the learned Court below committed no error of law in passing the first impugned order dated November 28, 2016. With regard to the second impugned order dated December 09, 2016 it was contended that it is settled law that once the defence of the defendant-tenant in a suit for eviction against delivery of possession stands struck out by the Court, there is no scope for recalling of the said order and the defendant tenant cannot adduce any evidence on his behalf, he can only cross- examine the plaintiff's witness. Mr. Chakraborty also relied on the decision of the Supreme Court in the case of Modula India (supra) cited by the petitioners. It was strenuously contended that in the said case of Modula India (supra) the Supreme Court rejected the contention raised on behalf of the appellant in the special leave petition that after striking out of his defence against delivery of possession under Section 17(3) of the Act of 1956 the defendant tenant can adduce evidence. It was further urged that in view of the decision of the Supreme Court in the case of Modula India (supra) the decision of the learned Single Judge of this Court in the case of Rameswar Kumar (supra) stands impliedly overruled.

"7(3). When a tenant can get the benefit of protection against eviction.- If the tenant fails to deposit or pay any amount referred to in sub-section (1) of sub-section (2) within the time specified therein or within such extended time as may be granted, the Controller shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the proceeding."

Since, both the parties have placed reliance on the decision of the Supreme Court in the case of Modula India(supra) dealing with the provisions contained in Section 17(3) of the Act of 1956 I think it appropriate to extract the said provision below:-

In the case of Modula India(supra), the Supreme Court after considering the provisions contained in Section 17(3) of the Act of 1956 held that when the defence of the defendant-tenant in a suit for eviction against delivery of possession has been struck out then the defendant would not be entitled to lead any evidence of his own, he can only cross-examine the plaintiff's witness and address argument on the basis of the plaintiff's case but his cross-examination cannot be permitted to travel beyond the very limited object of pointing out the falsity of the evidence of any witness of the plaintiff's. In view of the said decision of the Supreme Court in the case of Modula India (supra), the decision of the learned Single Judge in the case of Rameswar Kumar (supra) that a defendant in a suit for eviction, whose defence, against delivery of possession has been struck out, can adduce evidence to challenge the notice of suit under Section 13(6) of the Act of 1956 is no more the good law.