RAMESWAR KUMAR Vs. BISESWAR LALL

JUDGEMENT

(1.) A very short point which calls for decision in this Rule is whether a tenant whose defence against ejectment has been stuck out is entitled to dispute the service and validity of the notice of suit under Section 13(6) of the West Bengal Premises Tenancy Act by way of cross-examining the plaintiff-landlord's witnesses or by citing witnesses on his behalf. By the impugned order dated 6.9.1979 Shri C. Biswas learned Additional Munsif, Assansol, in Title Suit No. 125 of 1977 permitted the defendant to adduce evidence on his behalf by way of denial of notice.

(2.) Mr. J.M. De, the learned Advocates for the landlord-petitioner challenges the order and contends that a tenant whose defence is struck out cannot be permitted to challenge the service and validity of the notice by way of adducing evidence. Mr. De in support of his contention cites the decision in the case of (1) S.B. Trading Company Ltd. v. Olympia Trading Corporation Limited and Anr., 1952 AIR(Cal) 685 This was a case under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The defence against ejectment was struck out under Section 14(4) of the Act. It is held therein that in such a case the defendantns will not be entitled to cross-examine the plaintiff's witnesses on their evidence as to the facts establishing the claim to ejectment and address the Court with regard to that claim. This case is not an authority as to the point of service and validity of the notice to quit. Next reference is made to a Bench decision of this Court in the case of (2) D.R. Giallatly v. J.R.W. Connon, 1953 AIR(Cal) 409 This is also a case under the Act of 1950. In this case it is also held that once defence against ejectment is struck out on the ground mentioned in Section 12(1) of the Act but other defenses against ejectment as well. Next, reference is made to the decision in the case of (3) Satya Narain v. Naraindas Dhanuka and Ors., 1954 AIR(Cal) 32 It is held therein, that there is no scope for application under Order 9, Rule 13, C.P.C. in a case wherein the defence against ejectment of the tenant has been stuck out. Next, my attention is drawn to the Supreme Court decision in the case of (4) Smt. Bela Das & Ors. v. Samarendra Nath Bose, 1975 AIR(SC) 398 It is held therein that if the landlord tenant relationship exists, on defence being struck out all defences qua-tenant stand struck out. The Full Bench decisions of the Patna High Court in the case (5) Mahabir Ram v. Shiva Shankar Prasad and Ors., 1968 AIR(Pat) 415 is also referred to. It is held therein that when the defence qua-tenant was struck out it means that he cannot set up any defence with regard to the said notice under Section 106 of the Transfer of Property Act by cross-examining the witnesses of the landlord. He also cannot adduce his own evidence on the point of non-servces of the notice or its invalidity. Last of all reliance is placed on the Full Bench decision of this Court in the case of (6) Gurudas Biswas v. Charu Panna Seal & Ors., 1977 AIR(Cal) 110 Two points came up for consideration before the Full Bench : - (1) Whether a defendant whose defence against delivery of possession has been struck out under Section 17(3) can take the defence of non-existence or invalidity of a notice under Section 13(6) either in the Court below or in the Court of Appeal and (2) whether a defendant who has not appeared in the Court below should be permitted to take the defendant as to non-existence or invalidity of notice for the first time in appeal. It is held that where in a suit for ejectment if defence as to delivery of possession has been struck out under Section 17(3) the defendant can take the defence of the non-existence or invalidity of the notice under Section 13(6) in the Court below and in the Court of Appeal. The Full Court also lays down : "It would be wrong not to permit the tenant to contend and show, if possible, on plaintiff's evidence and materials as are on record," that the plaintiffs is not entitled to the decree prayed for. though he would not be permitted either to cross-examine the plaintiff's witnesses when they give evidence or to call his own witnesses at the trial, if his defence is struck out. On the basis of this Full Bench decision it is argued by Mr. De, that the learned Munsif fell into an error in permitting the opposite-party to call his own witness to challenge the notice of suit.

(3.) Mr. Satya Narayan Roy, the learned Advocate for the opposite-party relies on a single Bench decision in the case of (7) N.C. Maitra v. Bhupendra Kumar Chatterjee, . It is held therein that a tenant whose defence has been struck out is still permitted to contend before the Court and take the defence on point of non-service or invalidity of the notice and in doing so the tenant-defendant is also permitted to cross-examine plaintiff's witnesses and challenge other evidence adduced by the plaintiff's as to the non-service or invalidity of the notice. Justice A.P. Bhattacharya, in this case observes that defence in any event cannot even examine a witness denying the service of notice or denying facts on the point of invalidity of the notice. As to the Full Bench decision referred to above it is observed by his Lordship that observation which has been made in the Full Bench decision was a passing observation and was not a conclusive finding. Next reference is made by Mr. Roy to a Bench decision of this Court in the case of (8) Dayamoyee Sadhukhan v. Dal Singer Singh,1979 84 CalWN 663. Mr. Justice M.M. Dutt, who spoke for the Bench was a member constituting the Full Bench. In this case it is held that the last portion of the observation by the Full Bench in the case of Gurudas Biswas was biter and held that even after the defence being struck out the defendant is entitled to cross-examine the plaintiff's witnesses on all points and also be entitled to adduce evidence in support of their defence. It appears that their Lordship differed from the single Bench decision of Mr. Justice Bhattacharya in the case reported in 82 CWN 248. In short it is the decision of the Division Bench of this Court that a tenant whose defence has been struck out would be entitled not only to cross-examine the landlord's validity of the notice of suit. Mr. Roy also relies on the Supreme Court in the case of (9) M/s. Paradise Industrial Corporation v. M/s. Kiln Plastics Products, 1976 AIR(SC) 309 Corresponding to PARADISE INDUSTRIAL CORPN V/S KILN PLASTICS PRODUCTS, 1976 1 SCC 91. Herein it is observed by the Supreme Court that even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff's witness and submit that even on the basis of the evidence on behalf of the plaintiff's decree cannot be passed against him.