Basudeo Guneriwala vs Canton Carpentry Works Private Ltd.

R.N. Dutt, J.—Opposite party No. 1 Messrs Canton Carpentry Works Private Limited instituted Title Suit No. 91 of 1957 in the Ninth Court of the Subordinate Judge at Alipore for ejectment of the Petitioners and opposite parties Nos. 2, 3 and 4 from premises No. 16 Radhanath Chowdhury Road, formerly known as 16 Tangra Road, comprising about 10 bighas 8 cottahs 12 chattacks of land with a two-storied building thereon, on the ground that the opposite party No. 1 reasonably required the premises for building and rebuilding and for its own use and occupation. The Petitioners appeared in the suit after service of summons on them and filed written statement. Subsequently, opposite party No. 1 filed an application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, for sticking out the Petitioners'' defence against delivery of possession on the allegation that the Petitioners failed to make the deposits as required u/s 17(1) of the Act. The learned Subordinate Judge heard this application and made an order u/s 17(3) striking out the Petitioners'' defence against delivery of possession. When the suit was taken up for peremptory hearing and witnesses on behalf of opposite party No. 1 were being examined, an application was filed on behalf of the Petitioners praying for permission to cross-examine those witnesses ''on all points''. The learned Subordinate Judge on hearing the parties rejected this prayer and made the following order:

I cannot permit the Petitioners to cross-examine the Plaintiff''s witnesses on all the points. The Petitioners would be permitted to contest the suit and to cross-examine the Plaintiff''s witnesses only on the ground of service of notice or its validity or on other defences, if there be any outside the Act or to show that they have been able to qualify themselves for reliefs u/s 114 of the Transfer of Property Act.

The Petitioners have obtained this Rule against this order of the learned Subordinate Judge. Mr. Ganguli, who appears for the Petitioners before us, argues that the effects of an order striking out the defence against delivery of possession u/s 17(3) of the West Bengal Premises Tenancy Act is that the Defendants, here in this case the Petitioners, will be debarred from examining their own witnesses, but they will have the right to cross-examine the Plaintiff''s witnesses ''on all points''. He relies on the decision of P.B. Mukharji, J. in Deo Chand Singh Vs. Shah Mohammad, and submits that it is open to the tenant Defendant even though his defence against delivery of possession has been struck out to cross-examine and break the Plaintiff''s witnesses in order to show to the Court that the evidence that is being produced by the Plaintiff is unacceptable and should be rejected. Before we examine this argument of Mr. Ganguli we should consider the earlier decisions of this Court on the question as to the rights which the tenant-Defendant continues to have even after his defence against delivery of possession has been struck out u/s 14(4) of the Rent Control Act, 1950, or Section 17(3) of the Premises Tenancy Act, 1956. Sarkar, J., as he then was, held in S.B. Trading Co., Ltd., Vs. Olympia Trading Corpn. Ltd. and Another, that a tenant whose defence against delivery of possession has been struck out had no right to cross-examine the Plaintiff''s witnesses. That was a suit under the Rent Control Act of 1950. The defence of the Defendant was struck out u/s 14(4) of the Act. When the suit was taken up tor ex parte hearing, the Defendant sought for permission to cross-examine in person the Plaintiff''s witnesses and to address the Court on the basis of Rule 3, chap. XIV, of the Rules of the Original Side of this Court. But as we have said, Sarkar, J., who was hearing the suit, refused such permission holding that the Defendant had no such right. It appears, however, that he assumed that in the ex parte trial the Plaintiff was required to prove that the tenant-Defendant was not entitled to the special protection given to him under the Act of 1950 before the Plaintiff could get a decree for ejectment. This decision was subsequently considered by a Division Bench of this Court in D.R. Gellatly Vs. J.R.W. Cannon, where Chief Justice Chakravartti held that, when the defence of a tenant against delivery of possession was struck out u/s 14(4) of the Act of 1950, he would forfeit the special protection given to him under that Act and would be relegated to his position under the general law. He observed as follows:

If the tenant on being directed to pay the current rent month by month does not do so, the Act quite clearly provides that he will by such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position under the general law.

This in effect means that such an ex parte suit will be heard as if the tenant had no special protection under the relevant rent law, but he is to be governed by the general law, that is, the provisions of the Transfer of Property Act. Then came the decision of Renupada Mukherjee, J. in Ajit Kumar Sen Gupta v. Baijnath Somani (1959) 65 C.W.N. 1110, where the learned Judge specifically held that it was permissible for a tenant whose defence against delivery of possession had been struck out u/s 17(3) of the Premises Tenancy Act, 1956, to contest the suit on the ground that the notice to quit had not been served upon him or that the notice was legal or sufficient. Since the tenant is, after his defence is struck out, relegated to his position under the general law and since the landlord is not entitled to get a decree for ejectment unless the tenancy is determined u/s 106 of the Transfer of Property Act, the tenant must have the right to cross-examine the Plaintiff''s witnesses to prove that the notice was not served or that the notice was not legal or sufficient. Subsequently, P.N. Mookerjee, J., as he then was, has held in Subodh Chandra Singha v. Santosh Kumar Srimani (1963) 68 C.W.N. 184 that in a suit in which the defence of the Defendant against delivery of possession had been struck out u/s 17(3) of the Act of 1956, the Plaintiff will have to prove not only the service of notice u/s 106 of the Transfer of Property Act but also the service of notice of suit u/s 13(6) of the Act of 1956. It may be argued that in view of the decision of Chief Justice Chakravartti in D.R. Gellatly Vs. J.R.W. Cannon, that a Defendant, whose defence against delivery of possession is struck out, is relegated to his position under the general law, the notice of suit u/s 13(6) of the Act of 1956 need not be proved but, as P.N. Mookerjee, J. has pointed out, the notice of suit confers jurisdiction on the Court to entertain the suit and hence this is not a question of the tenant''s defence but a question of the Court having jurisdiction to make a decree in ejectment. We do not, therefore, think that the decision of P. N. Mookerjee, J. in Subodh Chandra Singha v. Santosh Kumar Srimani Supra goes against the principle enunciated by Chief Justice Chakravartti in Gellatly''s case Supra. Sitting singly, I had the occasion to consider this question in Satyaban Das v. Mozammal Haq Biswas S.A. 429 of 1961 (unreported) decided by R.N. Dutt, J. on January 24, 1964. There in that case, after evidence was taken in the suit, which was a suit for ejectment on the ground of reasonable requirement, the Plaintiff filed a petition for striking out the defence of the Defendant against delivery of possession u/s 17(3) of the Act of 1956. The Munsif, instead of disposing of the application at once, directed that the application for striking out the defence would be disposed of by the judgment in the suit, and when he delivered the judgment he struck out the defence of the Defendant against delivery of possession u/s 13(3) of the Act, and by virtue of the same judgment he decreed the suit although he made a finding that the Plaintiff did not reasonably require the premises for his own use and occupation. The tenant''s appeal was dismissed by the First Appellate Court. It was argued before me in the aforesaid second appeal that since the learned Munsif made a finding that the Plaintiff did not reasonably require the premises for his own use and occupation he could not have decreed the suit. I held there that since the defence against delivery of possession was struck out, the Defendant was relegated to his position under the general law and it was not necessary for the Munsif to record a finding about the reasonable requirement of the Plaintiff and the finding made was redundant because under the general law, namely under the Transfer of Property Act, the landlord is not required to prove that he reasonably requires the premises for his own use and occupation before he can get a decree for ejectment. Then came the decision of P.B. Mukharji, J. in Deo Chand Singh''s case Supra. What he held there was that when a tenant''s defence against delivery of possession is struck out u/s 17(3) of the Act of 1956, what is struck out is the defence u/s 13 of the Act and not entire defence. True, this in a way goes against the observations of Chief Justice Chakravartti in Gellatly''s case Supra to the effect that

there is no justification in the language of Section 14(4) to limit the defence against ejectment only on the ground mentioned in Section 12(1) of the Act.

But Chief Justice Chakravartti even though observing like that came to the conclusion that the tenant whose defence against delivery of possession has been struck out is relegated to his position under the general law. That in effect meant that not the entire defence was struck out but the defence under the Rent Control Act of 1950. P.B. Mukharji, J. had also held that what was struck out was the defence u/s 13 of the Premises Tenancy Act of 1956. We would rather hold that what is struck out is the defence against delivery of possession u/s 13(1) of the Act. The special protection conferred on the tenant under the Premises Tenancy Act, 1956, is contained in Section 13(1) of the Act. What is struck out u/s 17(3) of the Act is the defence against delivery of possession provided for under the Act, that is, the special protection contained in Section 13(1) of the Act. The effect of this conclusion is that even apart from the question of jurisdiction the landlord will have to prove the service of notice of suit u/s 13(6) of the Act of 1956. P.B. Mukharji, J. has specially held in the aforesaid case that the tenant, even though his defence against delivery of possession has been struck out, can claim relief u/s 114 of the Transfer of Property Act. Obviously this is consistent with the views of Chief Justice Chakravartti that when the defence against delivery of possession is struck out the tenant is relegated to his position under the general law. Mr. Ganguli, however, relies on the following observations of P.B. Mukharji, J.:

On the plain language of the section it seems to me that it is open to the tenant Defendant in that case even though his defence against delivery of possession has been struck out to cross-examine and break the Plaintiff''s witnesses in order to show to the Court that the evidence that is being produced is unacceptable and should be rejected.

These general observations were made in order to point out the difference between the language of Section 14(4) of the Act of 1950 and Section 17(3) of the Act of 1956.

The relevant words in Section 14(4) of the 1950 Act read:

...the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.

Whereas Section 17(3) says--

...the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

While noticing the difference in the language of Section 14(4) of the 1950 Act and Section 17(3) of the 1956 Act, P.B. Mukharji, J. made the observations relied on by Mr. Ganguli. A decision is only an authority for what it actually decides. What is of the essence in its decision is its ratio and not every observation found therein. On this topic Earl of Halsbury, L.C. said in Quinn v. Leathem (1901) A.C. 495:

Now before discussing the case of Allen v. Flood (1898) A.C. 1, and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides.

P.B. Mukharji, J. decided in that case that what is struck out is the defence against delivery of possession under the Act of 1956 and that the tenant has the right to contest the suit on all points outside the purview of the Act of 1956. Obviously, therefore, the right to cross-examine the Plaintiff''s witnesses and to break the same by such cross-examination must relate to the tenant''s rights outside the purview of the Act of 1956. We cannot, therefore, agree with Mr. Ganguli that P.B. Mukharji, J. wanted to lay down the proposition that even though a tenant''s defence against delivery of possession has been struck out u/s 17(3) of the Act of 1956, he will retain the right to cross-examine the Plaintiff''s witnesses ''on all points''. We have said that what is struck out u/s 17(3) of the Act of 1956 is the defence u/s 13(1) of the Act and the tenant will still have his right to cross-examine the Plaintiff''s witnesses not on all points but on points outside the scope of Section 13(1) of the Act of 1956. Mr. Ganguli''s contention that when the defence against delivery of possession as struck out the tenant is prevented from examining his own witnesses is wholly untenable, because since the tenant has the right to contest the suit outside the scope of Section 13(1) of the Act, he must have the right even to examine his own witnesses to establish his defences outside the scope of Section 13(1) of the Act.

The final conclusion that we thus reach is that when a tenant-Defendant''s defence against delivery of possession is struck out u/s 17(3) of the 1956 Act, what is struck out is his special defence u/s 13(1) of the Act, but still he has the right to contest the suit, and as part of his right he has the right not only to cross-examine the Plaintiff''s witnesses but also to examine his own witnesses on points outside the scope of Section 13(1) of the Act. The Petitioners'' prayer in the instant case for permission to cross-examine Plaintiff''s witnesses on all points has, therefore, been rightly rejected.

In the result, the Rule is discharged. There will be no order as to costs of this Rule.

N.C. Talukdar, J.

I agree.