N C MOITRA Vs. BHUPENDRA KUMAR CHATTERJEE

JUDGEMENT

(1.) THIS B. Rule was obtained on a revision petition by the petitioner against whom a suit for eviction was filed by the opposite party on the pleading that the petitioner was a monthly tenant and the suit was one to which the provisions of the West Bengal Premises tenancy Act, 1956, apply. The uncontroverted c. position is that the petitioner's defence against delivery of possession has been struck out under section 17 (3) of the Act. A preliminary point was raised before the court below as to how far in such circumstances the petitioner (defendant) was entitled to contest the suit for ejectment. The learned Court referred to the Full Bench decision of this Court reported in A. I. R. 1977, Cal. 110 (Gurudas Biswas, Appellant V. Charu panna Seal and Ors. Respondents) and observed that "the defendant is permitted to contend and show that the plaintiff is not entitled to the decree on the basis of plaintiff's evidence in argument. As his defence is struck out he is not permitted either to cross-examine plaintiff's witnesses or to call his own witnesses at the trial. " against this order the instant Rule has been obtained. Mr. Ganguly in support of the Rule submits that the Full bench decision of this Court has not been properly appreciated by the trial court. The contention raised by him is that the Full Bench has decided the point that where a defence as to delivery of possession had been struck out under section 17 (3) of the West Bengal Premises Tenancy Act, 1956, the defendant could still take the defence of non service of the notice or notices and invalidity of such notices in the trial court as well as in the court of appeal. He further adds that the Full bench did not specifically decide the point as to whether in taking such defence the tenant defendant is permitted to cross-examine plaintiff's ditnesses on the point of non-service or validity of the notice in question so that this point could be decided by this court. He further adds that on a leading of the Full Bench decision as a whole there is no room for doubt that such cross-examination to the limited extent is permissible.

(2.) IT has, therefore, become necessary to refer to the Full Bench decision and appreciate the point which has been laid down therein. The Full bench was obviously considering two points and those two points have been framed in paragraph 7 of the judgment. They are as follows : 1) In our opinion, where a defence as to delivery of possession has been struck out under section 17 (3) the defendant can no longer take the defence of the non-existence or invalidity of the notice under section 13 (6) either in the court below or in the court of appeal. 2) In our opinion, where a defendant does not appear in the suit below and take the defence as to the non-existence or invalidity of the notice of ejectment he should not be permitted to take the defense for the first time in appeal.

(3.) THE court on a consideration of several decisions of this Court has come to the following conclusion on the above two points : 1) Yes can take. It means, therefore, and that is clear from the judgment itself that even when defence against delivery of possession had been struck out the defendant is entitled to take the defence of non-existence or invalidity of a notice. 2) This will also appear from the answer to point no. 2 framed by the court which is to the effect that the defendant should be permitted to take the defence as to non-existence (whereby non service of notice is meant) or invalidity of a notice of ejectment.