Kamakshya Singh Deo vs Modula India

Ramendra Mohan Dutta, A.C.J.

The points that have been raised in this Full Bench Reference arose out of the judgment and order of Mrs Khastgir, J. passed on November 16, 1981. Such points in substance are, whether the defendant whose defence against delivery of possession has been struck out u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 would still have the right to cross-examine the plaintiff''s witness on all points inclusive of the points in respect whereof such defence has been struck out. The further point is whether, under such circumstances, the defendant a tenant would still have the right to call his own evidence on all points. Mr. Ghosh, however, appearing on behalf of the tenant respondent did not press the point because the learned advocate was of the view that since such a plea in defence was taken away, there could be no sense in calling his own witness on such point. To my mind, Mr. Ghosh has rightly submitted so because there could be no two opinions about it after the defence against delivery of possession is struck out. In the absence of any issue to that effect the evidence of such witnesses would be of no avail.

The learned Judge made the reference at a time when the suit reached the state of cross-examining the plaintiff in the suit for recovery of possession in which the defence against delivery of possession was directed to be struck out under sub-section (3) of Section 17 of West Bengal Premises Tenancy Act, 1956. At that stage the learned advocate appearing on behalf of the defendant contended that leave should be given to cross-examine the plaintiff on all points as set out in the written statement. The learned advocate further asked for leave to examine the defendant and to give evidence. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the defendant and to give evidence. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the plaintiff on all the points taken in the written statement nor could he examine himself on the points as set out in the written statement.

The question to be answered by the Full Bench has not been formulated by the learned Judge and, accordingly, in the fitness of things the observation of the learned Judge in making the reference may conveniently be set out as follows.

The learned Judge observed:

All that section 17(3) of the West Bengal Premises Tenancy Act does is to deprive the tenant of his defence against delivery of possession under the Act. But it cannot and should not be read as a penalty exceeding the boundaries of the Act and taking away the tenant''s relief against forfeiture under the Transfer of Property Act.

The Full Bench Judgment reported in AIR 1977 Cal. page 110 held that the defendant could not cross-examine on all points. Similar view had been expressed in the Division Bench Judgment reported in 73 CWN page 365 where it had been held that the defendant tenant whose defence against delivery of possession is struck out u/s 17 sub-section (3) of the Act, what is struck out is his special defence u/s 13 sub-section (1). He has the right to contest the suit as part of his right and this part of his right is not only to cross-examine the plaintiff''s witness but also to examine his own witnesses on points outside the scope of section 13 of the Act. But the tenant has no right to cross-examine the plaintiff''s witness on all points. However the Division Bench of this High Court presided over by Mr. Justice M. M Dutt and Mr. Justice Sharma in the case reported in AIR 1979 Cal. page 332 held that when the defence of the defendant is struck out under the provision of section 17 sub-section (3) of the Act, the defendant will be entitled to cross-examine the plaintiff''s witness on all points. He would be entitled to adduce evidence in support of his defence as to service of the notice to quit and of the suit. In other words, the defendant will be entitled to participate in proceedings and make his submission against the plaintiff''s case for delivery of possession Mr. Justice A. P. Bhattacharjee in the case reported in 82 C. W. N. page 248 held that :

A tenant defendant whose defence against delivery of possession has been struck out u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, is still permitted to contend before the Court and be the defence on points 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 confined to the points, namely, the non-service or invalidity of the notices which are required to be served in accordance with law. The tenant defendant would not be entitled to take any other plea or cross-examine plaintiff''s witnesses on any point or examine his own witnesses on any point whatsoever. The Defendant in any event cannot even examine a witness denying the service of notice or denying facts on the point of invalidity of the notice.

In view of the interpretation given by the Division Bench in the case reported in AIR 1979 Cal. page 332 of the Full Bench judgment reported in AIR 1971 page 110 and view of the observation of the Division Bench in the case reported in AIR 1977 Cal. page 332 to the effect that : "It is true that the Supreme Court did not express any opinion on the question. But it is apparent that the Supreme Court was inclined to hold that the defendant was entitled to cross-examine the witnesses of the Supreme Court (AIR 1977 S.C. 1436) do not support the observation and in the Full Bench case referred to above namely when the defence of the defendant had been struck out he would not be permitted to cross-examine the plaintiff''s witnesses when they give evidence.

I feel that it is my duty to refer this matter to the learned Chief Justice for necessary consideration whether the matter should be considered by a larger Bench of this High Court. Under this circumstances I make the necessary reference.

It would appear from the aforesaid that the learned Judge was finding it difficult to decide this case in view of the observation of the said Full Bench decision in the case of Gurudas Biswas Vs. Charu Panna Seal and Others, as appearing in the judgment of A. K. Dey which had the concurrence of Mitra, C. J. and M. M. Dutt, J. who constituted the said Full Bench. The observation of the said Full Bench, inter alia, was to the effect that when the defendant tenant''s defence against delivery of possession has been struck out u/s 17(3) of the Act of 1956 he would lose his right to contest the suit and he would not be entitled to cross-examine the plaintiff''s witnesses on all points. The further difficulty which stood in the way of the learned Judge, sitting singly in deciding the case was that the said observations of the said Full Bench was held to be obiter by M. M. Dutt, J. sitting in the Division Bench with Sharma, J. in the case of Sm. Daya Moyee Sadhukhan Vs. Dal Singer Singh, , on that basis the said Division Bench held that when the defence of the defendant was struck out u/s 17(3), the defendant would be entitled to cross-examine the plaintiff''s witnesses on all points.

Then again, in the case of N.C. Moitra Vs. Bhupendra Kumar Chatterjee, , another single Bench of this Court held the view that, under such circumstances, the defendant tenant would not be entitled to take any other plea or cross-examine the plaintiff''s witnesses on any point or examine his own witnesses on any such point whatsoever. It would appear that before the learned Judge of the Court below there were conflicting views on the point. The latest pronouncement was the view expressed by the Division Bench decision in Day a Moyee''s case (supra) and the other view expressed earlier by another Division Bench of M. M. Dutt and Talukdar, JJ. in the case of Basudev Ganeriwala & ors. v. M/s Cotton Carpentry Works pvt. Ltd. 73 C.W.N. 365 and the observation in support thereof by the said Full Bench in Gurudas Biswas Vs. Charu Panna Seal and Others, .

It is not necessary to go into the facts of this case in detail except to put it in a nut shell as follows :

The suit herein was filed in this Court in the original side in 1979, inter alia, for decree directing the defendant to deliver up vacant and peaceful possession of the premises being flat No. 3 on the ground floor of premises No. 3E, Camac Street, Calcutta decree for Rs. 40,950/- as means profits or damages till July 31,1979 at the rate of Rs. 75/-per day from February 1, 1978. The defendant filed its written statement denying the averments in the plaint and the claim made therein. From time to time several interlocutory applications were made in the suit in which orders for payment of different sums were made on the defendant, therewith the defence against delivery of possession was directed to be struck out u/s 17(3) of the West Bengal Premises Tenancy Act, 1956.

In an application by the defendant for an order granted leave to the defendant to pay the arrears of rent to the tune of Rs. 15, 000/- by monthly installments of Rs. 1000|- along with current rents Mrs. Khastgir, J. delivered a judgment on March 14. 1980 and there it was argued that the defence u/s 17(3) was liable to be struck out and the plaintiff was entitled to get an exparte decree. The learned Judge alter construing the provisions in sub-sections (2A) and (2B) of section 17 held that the times to make the application expired and, in the facts and circumstances of the case, came to her finding that the defendant was not entitled to any order and made no order therein.

Thereafter the suit came up before the learned Judge. It appears from this judgment of the learned Judge that after the said application was missed by her the defence of the defendant was struck out. Obviously what was meant was that the defence of the defendant against delivery of possession was struck out. It is to be noted and such recorded that the validity of the order striking out the defence has not been disputed before us at all.

In deciding the point involved therein, it is first necessary to go into the question as to what is the scope and intent of the punishment imposed on the defaulting tenant by using the expression "defence against delivery of possession shall be ordered to be struck out". To put in very shortly; what is the meaning of the expression "defence" which is struck out and which is used in connection therewith ? Would it include even the right to cross-examine the plaintiff''s witnesses on all points ?

The sub-section reads :

17 (3). If a tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2A), of rails to deposit or any installment permitted under clause (b) of sub-section (2A) within the time fixed therefore, the court shall order the defence against delivery, of possession 10 be struck out and shall proceed with the hearing of the suit.

In the case of Debendra Nath Dutt Vs. Sm. Satyabala Dasi and Others, it is considered that in a suit the defendant has to enter appearance within certain time. If he fails to enter appearance, two consequences follow one is that the suit is liable to be heard exparte and the other is that the defendant would not be allowed to file his written statement. P. E. Mukherji, J. (as he then was) held that the defendant has the right to cross-examine the plaintiff''s witnesses and then to address the court on law and to make submission on the evidence of the plaintiff''s witnesses. The learned Judge followed the decision of Chief Justice Rankin in Krishna Chandra Bhowmik Vs. Pabna Dhana Bhandar Co. Ltd. and Others, . The purpose why the defendant would be allowed to cross examine and to argue is that the defendant thereby may demolish the evidence of the plaintiff which might be unreasonable or untrue. The defendant may also argue that for reasons formulated by him the Court should hold that no decree should be passed in favour of the plaintiff.

Applying that principle Mr. Ghose, learned advocate appearing for the tenant defendant argues that an order striking out the defence...... would put the defendant in the same position where the defendant has not filed the written statement, it does not destroy the defendant''s other rights. Mr. Ghosh contends that the defendant''s right to cross-examine the plaintiff''s witnesses is not dependent on the written statement as such. Even when the suit is heard exparte still the defendant has the right to cross-examine the witnesses and to make submission on law. Mr. Ghose further contends that the effect of striking out defence tantamount to putting the person concerned in the same position where he would have been if he had not filed the written statement at all, and the case was heard ex parte. The right to cross-examine in both the cases would remain. That is what is decided by P. 13. Mukherje, J. and to that extent the said decision in Dehendra Nath Dutta vs. Satyabala Dassi, (Supra) is relevant for our consideration.

It is contended by Mr. Ghose that the expression ''''defence against delivery of possession to be struck out" in section 17 (3) would refer to pleadings and nothing else; otherwise, the language would have been different. The language possibly would have been that "the defendant would not be permitted to appear". The expression used is "the court shall order the defence against delivery of possession to be struck out". It refers to a document. Since the defence has been put forward in the written statement which is a document the same is directed to be struck out or cancelled. In doing so the court does not disentitle the defendant to cross-examine the plaintiff''s witnesses on all points.

Even though the document goes yet the defendant''s right to cross-examine remains.

Mr. Ghose contends by referring to Dehendra vs. Satyabala (Supra) that the right to file a written statement, the right to cross-examine the plaintiffs witnesses and the right to address the court are separate and distinct rights. Such rights are not inter-dependant so that even if the defendant has not filed the written statement, and as a consequence, the suit proceeds ex-parte, the defendant will still have the right to cross-examine the plaintiff''s witnesses and to address the court on points of law as also on the plaintiff''s evidence. For this limited purpose Mr. Ghose relied on the said decision. Mr. Ranjan Deb on behalf of the tenant respondent however, disputed the said proposition. According to learned advocate Mr. Deb those are not distinct rights. The entire defence in connection therewith goes and no right remains for cross-examination of the plaintiff''s witnesses there could be no point in keeping such right of cross-examination outstanding when his whole defence is struck out.

Mr. Ghose then refers to the decision in S.B. Trading Co., Ltd., Vs. Olympia Trading Corpn. Ltd. and Another, which was a case under the 1950 Act. Mr. Deb has strongly relied on it. It says that in an ejectment suit although the primary relief sought is the ejectment there may be other relief''s, like mesne profits, decree for arrears of rent etc. Sarkar. J. (as he then was, later the Chief Justice of the Supreme Court) was of the view that the effect of an order of striking out the defence u/s 14 (4) was to preclude the defendant from cross-examining the plaintiff''s witnesses. It is submitted by Mr. Ghose that the court has since departed from that view. According to Sarkar, J. if a defence is struck out the right to cross-examine before the court with regard to the prayer for ejectment also goes. According to Sarkar, J. the defence is struck out. means that it is taken away along with the written statement meaning thereby that the right to cross-examine and to address the court are also gone and the defendant is precluded from defending the suit altogether. It is contended by Mr. Ghose that such a view is an extreme view and should not be followed.

Mr. Ghose then refers to the decision of Chakraborty C. J. and Sinha J. in the case of D. R. Gallatly v. J. R. W. Cannon A. I. R. 1955 Cal. 409. Mr. Ghose contends that the interpretation given by Chakraborty C. J. to the effect that if the tenant forfeits the special protection he is thrown to the general law. is obviously wrong. If the defence is struck out, all the same, this plaintiff has get to prove his case. That is the statutory requirement. This is a case in which the previous Rent Control Act of 1950 applied.

In the case before us section 13(1) provides for jurisdictional bar. No decree for ejectment can be passed except under the grounds provided therein. Originally the tenants were governed by the Transfer of Property Act which seemed harsh on the tenants and that was why the Rent Acts were enacted in order to confer more rights on the tenants so as to protect them against, eviction. Such enactments were made for the benefit of the tenants. Likewise some corresponding rights were given to the landlords but on the whole it is more in favour of the tenants. Now the entire matter is governed by the Rent Acts and there is no field left out. To say that when the defence is struck out the defendant is relegated to the general, law would obviously be wrong because that would be tantamount to saying that the recovery of possession thereof would be on the basis of Transfer of Property Act alone. If that were so then the provision section 13 (1) would automatically be rendered inactive and nugatory. Chakraborty C. J. by using the said expression viz. ''general'' along with the other provisions of the relevant Rent Act, what he meant was that under such circumstances the tenant would lose the special protection conferred by section 12 (1) of the West Bengal Premises Tenancy Rent Control (Temporary Provision) Act (17 of 1950). The learned Chief Justice there said :

If the tenant, on being directed to pay the rent month by month, does not do sc. 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.

It is to be noted that all that the said section 14(4) provided is :

If the tenant contends that suit, as regards the claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at the rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within 15 days of the date of the order of the rent at such rate of any month by the 15th day of the next following month, 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 ******

On the basis of the language used in section 14 (4) the learned Chief Justice gave the above interpretation. The expression "the tenant to be placed in the same position as if he had not defended the claim to ejectment" although is of very wide amplitude yet, to my mind, the special protection of a tenant against eviction conferred by section 12 (1) could not have been taken away by the said sub-section (4). Such protection could only be rendered inapplicable to any suit for decree for such recovery of possession if the clauses in the provision could be established by the plaintiff no matter whether the defendant tenant would appear or had not defended the claim to ejectment. If sub-section (4) of section 14 applied that would not by itself take away the protection given to a tenant against eviction u/s 12 (1). That being the position, under the West Bengal Premises Rent Control Act (Temporary Provision) Act, 1950, in my opinion, the above observation of the learned Chief Justice with due respect, cannot be supported.

In the light of the above decision I shall now discuss the Division Bench Judgment in the case of Basudeb Ganeriwala & Ors. v. M/s. Canton Caroentry Works Pvt. Ltd., & Ors. 73 C. W. N. 365. in which R. N. Dutt, J. sitting with Talukdar, J. relied on the above decision in S. B. Trading Company Limited v. Olympia Trading Corporation Limited (Supra) and D. R. Gallatly v. J. R. W. Canon (Supra) both of which were decided under the said 1950 Act. The case before the Division Bench in Basudeb''s case (Supra) was under sections 13 and 17 of the West Bengal Premises Tenancy Act, 1956 (12 of 1956).

That was a case which came up from the decision of the learned subordinate Judge who did not permit the petitioner tenants to cross-examine the plaintiff''s witnesses on all the points under similar circumstances which occurred in the case before Mrs. Khastgir, J. In deciding the said case u/s 17 (3) the Division Bench relied on the aforesaid decisions which were decided under the 1950 Act. The Division Bench in Basudeb Ganeriwala''s case (Supra) followed and relied on the observation of Chakraborty C. J. Gallatly''s case wherein the tenant under such circumstances was to be relegated to his position under the general law. At page 369 the Division Bench observed :

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 under 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.

In my opinion, the Division Bench was not right in its approach in going into the question of defence against delivery of possession being struck out as provided u/s 17 (3) of the Act of 1956. It was proceeding as if it was no longer necessary for the plaintiff to prove the ground or grounds u/s 13 (1) of the Act. That will clearly appear from the judgment at page 368 where R. N. Dutt, J. speaking for the Division Bench was discussing another decision of the learned Judge in the case in Salyaban Das v. Mozammal Haq Biswas, an unreported decision of his lordship decided on January 24. 1964. The learned Judge observed :

It was argued before me in the aforesaid second appeal that since the learned Munsiff 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, 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.

If such an observation as above, has to be supported then, in my opinion, the jurisdictional clause requiring the satisfaction of the court before pacing an order or decree for ejectment would be rendered completely nugatory. R. N. Dutt, J. in the above Division Bench Decision, with due respect, went clearly wrong in his finding that under such circumstances only the notice u/s 13 (6) need be proved and not the ground on the basis whereof recovery of possession has been sought for.

The said Division Bench decision in Basudeb Ganeriwala''s case (Supra) could not also be supported in as much as the said Bench, with due respect, failed to appreciate the decision in Deo Chand Singh Vs. Shah Mohammad, where P. B. Mukherjee, J. discussed the purpose of cross-examination and observe that it was to break the plaints witnesses for the purpose of showing the court that the evidence that was being produced by the plaintiff was unacceptable and should be rejected. In my opinion, what was set out at page 370 in para 9 was not what was decided by P. N. Mukherjee, J. in the said case. Then again the said Division Bench has also supported the view of P. N. Mukherji, J. in the said case where it was held by the learned Judge that the tenant could get relief u/s 114 of the Transfer of Property Act even though his defence against delivery of possession had been struck out although the said part of the decision was overruled by another Division Bench decision of this Court. The said Division Bench decision in Basudeb Ganeriwaia''s case (Supra) was not right in its observation that the tenant might have the right of. cross-examination but the same was limited to matters outside the scope of section 13(1). The learned Judges ought to have considered that in respect of the defence being struck out u/s 17 (3) the provision of section 13 (1) would still survive in the statute. Irrespective of whether the tenant would defend the suit or not, the court has got to be satisfied before an order or decree for the recovery of possession could be passed. If that be the position, the court could still protect the tenant because the section still survived in the statute. In other words, the protection provided therein would be survived whether or not the tenant would defend the action. That being so, the very basis of the decision in Basudeb Ganeriwala, 73, C. W. N. 365 is gone and the conclusion which followed there from could not at all be sustained.

In my opinion, the expression "defence against delivery of possession" would signify not the whole of the defence but only a part thereof and such part relates to the delivery of possession. That being so, the expression "defence" in the said sub-section must be equated with written statement. Accordingly, what is to be struck out from such written statement is the tenant''s pleas in defence, in respect of the grounds in the plaint made out by the plaintiff u/s 13 (1) of the act of 1956. If the case in the plaint is one relating to reasonable requirement u/s 13(1) (ff) on the basis whereof the defendant''s eviction is being sought for, then the facts connected therewith which go to build the defence of the defendant in the written statement are to be struck out. For example, the pleas of alternative accommodation or proportionate accommodation or that the plaintiff has other suitable accommodation the like would not be available to the tenant. In other words, in respect thereto, he would not be entitled to call his evidence in rebuttal, which he normally would have been entitled to, had his defence against delivery of possession not been struck out by the court.

Take for instance, the case of building and rebuilding under clause (f) on the basis whereof the plaintiff seeks to evict the tenant. In the written statement the defendant might take up the defence that it is not reasonably required by the landlord to build or rebuild or to make substantial additions or alterations or that the substantial additions could be carried out without the premises being vacated and so on under such circumstances, when his defence is struck out u/s 17 (3) he cannot lead evidence in rebuttal. To dispute the plaintiff''s case on the basis of such averment in the written statement by calling engineers or by himself giving evidence or by calling the neighbors or tenants which he otherwise was entitled to had his defence been struck out to the extent. Similarly, in respect of clause (i) the defendant tenant might in his written statement have pleaded an oral agreement in respect of the payment of the arrears of rent. Such a case in defence would not be substantiated by the tenant at the trial by calling his evidence to establish the same when his defence against delivery of possession has been struck out. Likewise, in the case where the plaintiff alleges Sub-letting and on that basis has framed his suit, the defendant tenant would not be allowed to make his defence in denial of the fact thereof by calling an independent witness or his neighbors or by calling himself to establish that the person concerned occupying was not his sub-tenant but was actually his licensee or guest for a temporary period.

Accordingly, it is quite obvious that the scope of cross-examination is of a very limited nature. Hardly much can be established by such cross-examination. Even under such circumstances possibility cannot be ruled out on behalf of the defendant, for obtaining admissions from plaintiff''s witnesses by such cross-examination and thereby the plaintiff''s case for recovery of possession can be successfully demolished. By such cross-examination the veracity of the witnesses called on behalf of the plaintiff might be tested and the case might be correctly decided by court. It is to be noted that even when the defence is ordered to be struck out and the trial proceeds the court suo motu can cross-examine the plaintiff''s witnesses to ascertain the correct position if the court so thinks fit. Accordingly, the cross-examination of the opponent''s witnesses stands on a separate footing quite distinct from whether the defence is struck out or not.

The expression "and the court shall proceed with the hearing of the suit" Is not to be found under the previous act of 1950 u/s 14(4) thereof. There the expression used u/s 14 (4) was "and the tenant to be placed in the same position as it he had not defended the claim to ejectment". In my opinion, the legislature made a conscious departure from the previous enactment by making the provision in section 17 (3) less rigorous. Section 14 (4) in that context would suggest that under such circumstances the defendant would not be able to defend the claim to ejectment. u/s 17 (3) however, the statute comes silent regarding the defendant after his defence is struck out except to say that the court shall proceed with the hearing of the suit. That being the position, in my opinion, it would not be safe to apply the observation made in the decision under the 1950 Act or to rely thereon in deciding the cases u/s 17 (3) of the Act of 1956, Mr. Kapur Leading Mr. Deb contends that the Supreme Court has dealt with a similar clause as used in section 14(4) in the case of Paradise Industrial Corpn. Vs. Kiln Plastics Products, and has observed therein that in effect both meant the same thing.

In my opinion, the said observation in the said supreme Court decision has no application to the facts of the case before us. Here we are considering and comparing the two statutory provisions in which the expression "defence struck out" appears in both the provisions. But before the Supreme Court the consideration was whether the judge of the small Causes Court went wrong in using the words "defences to be struck off" instead of the words "he shall not be entitled to appear in or defend the suit except with leave of the court, which leave may be granted subject to such terms and conditions as the court may specify". The Supreme Court held that in effect both meant the same thing. The Supreme Court there looked into the substance Of the matter and as such made the observation : viz. "the High Court has missed the substance and chased the shadow''''. There the Supreme Court was only considering the form of the order that was passed But our consideration is interpretation of the two statutory provisions which, in substance appear to be similar but where a significant departure is made by the legislature in the language thereof.

By deleting the said deeming clause in section 14 (4) in enacting the corresponding provision in 1956 Act the legislature must have purposely made the change and must have intended to make the punishment a little less rigorous than what it stood before under the 1950 Act. The legislature mast have intended that the punishment should be lessened by allowing the tenant to otherwise participate in the trial of the suit subject of course to the limitation imposed as provided therein. The extant of punishment under sub-section (3) is only to take away the defence and not further than that. Keeping in view the previous provision whereby the punishment imposed was not only to take away the defence but also to debar him from participating in defending the claim for ejectment by using the expression "and the tenant to be placed in the same position as if he had not defended the claim to ejectment" I am of the opinion that the expression "as if he had not defended the claim to ejectment" signified that he could not have defended the claim to ejectment. Under such circumstances, the question of cross-examination of the plaintiff''s witnesses could not have arisen in any event. In my opinion, the difference in the language of the two enactments is of substance and cannot be ignored. None of the decided cases have ever considered the scope of sub-section 17(3) from the above point of view. In my opinion, the decisions based on section 14(4) of the old Act can not and should not be relied on in deciding the scope of section 17 (3).

If the extent of punishment imposed by section 17 (3) is considered without reference to the earlier decision based on the 1950 Act then the meaning of the expression "defence" in section 17 (3) must necessarily be held to refer to the written statement in which various pleas in defence are taken against the various averments in the plaint including those relating to the grounds mentioned in section 13(1) of the Act of 1956.

Accordingly, when section 17 (3) provided for striking out the defence by the court in respect of a particular plea the same must be with reference to the written statement where such plea is taken and where from the issues in connection therewith would be raised. If such a plea is taken away the issue settled in connection therewith is necessarily rendered inactive and the same would along with plea, and likewise, all documents discovered and inspected in connection with such plea would also be rendered inactive at the trial.

In my opinion, a strict meaning must be given to the language used in sub-section (3) particularly when the legislature has consciously chosen to remain silent and avoided using any expression touching the appearance of the tenant at the trial after his defence is struck out. At the end of the sub-section what is simply added is "and shall proceed with the hearing of the suit."

Several decisions of the Supreme Court have been cited before us but the same are not exactly on the point which is canvassed before us except as observed herein below. I shall, however, discuss them in detail to show how the Supreme Court has dealt with such similar questions which arose before that court in somewhat different context The said discussions in the said cases are bound to influence our mind to some extent but save and except that, the same do not go to decide the question be fore us and, accordingly, the question should be decided on the basis of the interpretation of the relevant provisions of the 1956 Act and the decided cases touching the point directly.

In the case of K.K. Chari Vs. R.M. Seshadri, the Supreme Court observed that the satisfaction of the court must be there before the parties could invite the court to pass an order for eviction although the manner of such satisfaction might differ in different case. The materials must be there and the court must apply its mind in making the order for eviction of the tenant. In that case the Supreme Court was considering the validity of a compromise decree for eviction of the tenant under Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960).

On behalf of the plaintiff landlord reliance as been placed on the decision in the case of Smt. Bela Das and Others Vs. Samarendra Nath Bose, . That case has been decided on section 11 A of the Bihar Rent. Act. The said provision has been set out in another report in the case of Biswanath Prasad vs. Shanti Devi AIR 1978 Patna Page 10, at p. 12 thereof.

In the said case of Smt. Bela Das & Ors. vs. Samarendra Nath Bose, (Supra) the Supreme Court has made certain observations at page 400 which Should require consideration. That was a case where the plaintiff applied for directing the defendant to pay the arrears current and future rents under the provision of section 11 A of the Bihar Act of 1947. The defendant resisted the same on the contentions that besides the plaintiffs, there were other land lords. An order was made directing the defendant to make the payment. The defendant, however, defaulted in complying with the said order and as a result the defence of the defendant as against ejectment was struck out and the was taken up for ex-parte hearing.

The defendant tried to obstruct but failed. The plaintiff gave evidence and the court being satisfied that the relationship of landlord and tenant existed passed an ex-parte decree, directing eviction. An appeal was preferred but the same was dismissed. There was a second appeal in the High Court at Patna. The single Judge allowed the appeal and remitted the case to trial court for fresh trial on evidence. The plaintiff-appellant then preferred an appeal to the Supreme Court.

The High Court in the second appeal rejected the contentions of the defendant to challenge the legality of the order u/s 11A as also the order striking out his defence as against ejectment but the High Court took the view that there was denial of relationship of landlord and tenant and that the plaintiffs were 16 annas landlord in respect of the said tenancy. Therefore, the order striking out the defence against ejectment of the defendant qua tenant could not prevent him from contesting the suit on the question of title.

The Supreme Court held that the High Court in error in applying the principles of law to the facts of that case. Such a defence that he was not the tenant was pretence. The Supreme Court found that the defendant had admitted that he was the tenant under the plaintiffs. It was not a case of denial of relationship of landlord and tenant between the parties. The purported plea that was raised was Qua Tenant and not dehors it. At page 400 of the report, the Supreme Court observed :

In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as whole. The hearing of the suit ex-parte, was, therefore, legal and valid.

I do not see how this case can be relied on in support of the connection that the Supreme Court held that under such circumstances, the entire defence would be struck out. The Supreme Court did not hold so. The Supreme Court rejected the view taken by the High Court and upheld the order of the Munsif and of the Court hearing the first appeal who struck out not only the defence of the defendant against ejectment but also the defence as regards the denial of the relationship of landlord and tenant. To my mind the Supreme Court used the expression "whole defence" in that sense, which according to the supreme court, was rightly rejected in the facts of that case because the facts revealed that the relationship of landlord and tenant admittedly existed. Accordingly, it must be held that the said Supreme Court decision could not be of any assistance in demitting the case before us.

Moreover, it is not always right to rely on the observation of the Supreme Court which are made in constructing other State Acts and to apply the same to the facts involved herein, particularly when the language of the different Statutes are not in pari materia. To my mind, in any event, that case did not decide anything touching the right of cross-examination or the right of argument after the defence against delivery of possession would be struck out. There the whole defence related to the defence against ejectment and also the defence denying the relationship of landlord and tenant, both taken together. In case of Paradise Industrial Corporation vs. Kiln Plastics Products. AIR 1916 S.C. 369, the case relates to a Bombay Act, the provision whereof, inter alia, is that if the defendant does not comply with the order for deposit of the amount he would not be entitled to appear in or to defend the suit except with the leave of the Court. There the learned Judge of the Small Causes Court in his order used the expression "Defence to be struck out" instead of using the expression which appeared in the said Bombay Act, viz, that "He shall not be entitled to appear in or to defend the suit except with the leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify".

In my opinion, the above observation of the Supreme Court in Paradise Industrial Corporation''s case (supra) requires careful consideration. It would appear there from that the matter came up before the Supreme Court from an order made in application under Article 227 of the constitution, by which the High Court not only set aside the ex-parte decree passed by the Court of Small Causes Court, Bombay in a suit for eviction and rent but also dismissed the suit itself. There also the defendants ware in arrears of rent and, accordingly, a notice to quit was served on the defendants and an application u/s 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for fixation of standard rent was filed. It was thereafter that the High Court, the learned single Judge set aside the decree passed by the Small Causes Court on 6th August, 1969, as also the decree passed by the Appellate Bench and dismissed the suit. The Supreme Court described such a conclusion as extra-ordinary in as much as u/s 11 (4) of the Act the only order that could be passed was an order directing "that if defendant fails to comply with any order made as aforesaid, within such time, as may be allowed by it, he shall not be entitled to appear in or defend the suit except with the leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify". It was observed that the section did not authorise the court to strike off the defence straightway.

In the above context the Supreme Court, in my opinion, observed that striking out of the defence and making an order to that effect that the defendant would not be entitled to appear in or to defend the suit both meant the same thing. In the above context the Supreme Court also observed that the language of section 11(4) of the Bombay Act and that of the provision of Order 11 Rule 21 of the CPC would mean the same thing. What the Supreme Court meant by the above expression would be further clarified if the provision of section 11(4) of the said Bombay Act is considered. There it is, inter alia, provided that if the Court is satisfied that the tenant is withholding the rent on the grounds mentioned the rein the Court may make an order directing the tenant to deposit in Court forthwith such amount of the rent as the Court would consider to be reasonably due the landlord of such amount as the Court might specify, It is further provided in the section that the Court may also direct that if the tenant would fail to comply with any such order the tenant would not be entitled to appear in or to defend the suit except with the leave of the Court which leave may be granted subject to such terms and conditions as the Court might specify. The question before the Supreme Court was whether under such circumstances the learned Judge of the Small Causes Court was justified in using the words "defences to be struck out" without using the words as mentioned in the said provision viz, "he shall not be entitled to appear in or defend the suit except with the leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify".

In that context the. Supreme Court did not find any difference in the words ''defence to be struck out'' and justified the use of the said words in the said order and held that the order was not illegal or without jurisdiction. It was held that such an order squally fell within the ambit of section 11(4) and the Small Causes Court Judge was competent to make the said order. The Supreme Court observed that the Court was justified in directing striking out of the defence and in fixing the suit for ex-parte hearing because the sum directed was not deposited. The Supreme Court took into consideration the fact that the ex-parte decree already passed by the Court was not sought to be set aside It is to be noticed that the observation relating to the similarity of the two expressions was made out in the context as to whether the defendant was entitled to appear and cross-examine the plaintiffs witnesses when his defence was directed to be struck out, but such observation was made, and the same applied in relation to the language used in Sec. 11(4) of the said Bombay Act. The Supreme Court noted that the words "striking out defence" are very commonly used by the lawyers.

In my opinion, such observation should not be applied to the instant case where the point has come up directly for consideration and since such would depend on the interpretation of the words used in Section 17(3) of our Act compared to the repealed enactment of 1950.

Be that as it may, another very significant observation has been made by the Supreme Court in Paradise Industrial Corporation Case (supra) where the Supreme Court incidentally has observed :

Indeed, one may even say that the phrase the defence to be struck off ''or'' ''struck out'' is more advantageous from the point of view of the defendants. Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff''s witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him whereas if it is ordered in accordance with Section 11(4) that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage.

The above observation is no doubt an obiter in the sense that it was not necessary for the Supreme Court to have said so in deciding the said case but even an obiter of the Supreme Court has binding force on the High Courts if the same would clearly lay down a proposition of law. In the context of the said Bombay case such an observation was made and, in my opinion, the provision in section 11(4) of the said Bombay Act is of greater consequence than the provision of Section 17 (3) of our Act in as much as in the Bombay Act under such circumstances the defendant was not entitled to appear in or defend the suit except with the leave of the Court. If the Supreme Court observation could go to that length then I see no reason why such as observation should not be applied in the case before us. Under the Bombay Act there is a total restriction imposed even in the matter of appearance by the defendant without the leave of the Court but in spite thereof the Supreme Court thought that for the purpose of cross-examination of the plaintiff''s witnesses such restriction could not stand in the way. As against that in so far as section 17 (3) is concerned the restriction imposed therein is of a special nature and it is provided that if the defence is struck out the hearing of the suit will proceed.

In view that I have taken as aforesaid I do not think that there is much substance in the contention of Mr. Kapur that the above observation of the Supreme Court relating to the right of the defendant to cross-examine the plaintiff''s witnesses, is neither a ratio decidendi nor an obiter but the same proceeded on the basis of an imaginary proposition which had no basis in the context of the Case before the Supreme Court.

In the case of Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, the Supreme Court dealt directly with a case issuing under Order XI Rule 21 of the Code of Civil Procedure. There the Court made an order to produce the documents the same not having been complied with directed the defence to be struck out. In that case the Supreme Court held on the facts involved therein that the order of the trial Court striking out the defence was liable to be set aside. There the question was raised as to whether the defendant was still entitled to cross-examine the witnesses of the plaintiff but the Supreme Court refrained from expressing any opinion on the question At page 1441 the Supreme Court observed :

It was further contended that the High Court was in error in observing that "in view of the clear language of O. XI. R. 21 the defendant has no right to cross-examine the plaintiff''s witnesses. A perusal of O. XI R. 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant the placed in the same position as if he had not defendant". This indicates that once the defence is struck off under O. XI R. 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, it was held that if the Court proceeds ex-parte against the defendant under O. IX R. (6) the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff''s suit.

Every Judge in dealing with an ex-parte case has to take care that the plaintiff''s case is, at least, prima facie proved. But as we set aside the Order XI R. 21 this contention does not survive for our consideration. We, therefore, refrain from expressing any opinion on the question.

It is true that the question involved herein has not been gone into or answered by the Supreme Court in Bihar Sewing Machine Co''s case (supra) but the interpretation given by the Supreme Court in that case regarding the observation in Sangram Singh''s case ( supra) must be taken note of and applied accordingly if the same would otherwise be applicable. From the passage set out above it would appear that the Supreme Court is of the view that in Sangram Singh''s case it was held that if the court would proceed ex-parte against the defendant under Order IX Rule 6 (a) of the Code, the defendant was and would still be entitled to cross-examine the witnesses examined by the plaintiff.

Mr. Kapur contends that such has not been held in Sangram Singh''s case but the Supreme Court in the above decision has read Sangram Singh'' case in the manner as indicated in the above passage and that being so, the Supreme Court''s own explanation about its own judgment must be read in the light. Accordingly it can legitimately be held that in case where the court would proceed ex-parte against the defendant the defendant would still be entitled to cross-examine the witnesses examined by the plaintiff. The question which requires to be examined is whether under such circumstances, when the defence is directed to be struck out u/s 17 (3) the hearing of the suit to that extent can be said to be proceeding ex-parte as the concluding portion of the said sub-section suggests. If so the defendant could legitimately claim to be entitled to cross-examine the plaintiff''s witnesses on such points also. Mr. Kapoor leading Mr. Ranjan Deb submits that the Division Bench in Daya Moyee''s case (supra) straightway referred to the decisions in the above two Supreme Court cases in Paradise Industrial Corporation''s case (supra) and in Babbar Sewing Machine Company''s case (supra) and come to the conclusion without even considering or analysing the effect of the said decisions or the provisions of section 17 (3) of the principles involved herein that under the circumstances, the defendant had the right to cross-examine the plaintiffs witnesses. Mr. Kapur submits that such a conclusion is not justified particularly when the Supreme Court in Babbar Sewing Machine Company''s case (supra) specifically stated that such a point was not decided therein. In Day a Moyee''s case M. M. Dutt, J. Sitting with Sharma J actually took into consideration the fact that the Supreme Court did not express any opinion on the question but what the learned Judges took note of was that it was "apparent that the Supreme Court was inclined to hold that the defendant was entitled to cross-examine the witnesses of the plaintiffs'' and on that basis took the further view that, in any event, the observation made in the Full Bench in Gurudas Biswas v. Charu Panna Seal (supra) was not supported by the Supreme Court decision. With respect I am also inclined to take the view for the reasons as stated in the said Division Bench case as also the reasons given by me as set out hereinabove and also herein below.

In my opinion, the Division Bench in Daya Moyee''s case (supra) has made the correct approach and has laid down the principles correctly.

Mr. Ghose submits that the right to cross-examine the opponent''s witness could not have been and as such is not provided m the West Bengal Premises Tenancy Act of 1956. Such rights are laid down under the general law viz, The Code of Civil Procedure, the Evidence Act and the Rules of the Original Side of this court relating to the conduct of the suit at the trial. Therefore, the right to cross-examine the plaintiff''s witnesses cannot be taken away by the provisions made in the West Bengal Premises Tenancy Act, 1956 particularly when the same has not been specifically so taken away. The main purpose of cross-examination to assist the court in arriving at the truth of a fact and in that process it is the court which can always allow the opponent to cross-examine a witness to elicit the truth. The court is the ultimate authority who has to decide on the basis of the evidence on record as to whether the plaintiff has been able to prove his case prima facie and whether the prima facie evidence that a decree could be passed on the basis thereof. I have used the expression ''prima facie case'' and ''prima facie evidence'' because such expressions, I have noticed, have been used by the Supreme Court in the case of Babbar Sewing Machine Co''s case (supra) and also in the Division Bench decision in Daya Moyee''s case. Possibly to my mind, such an expression would signify the minimum evidence that is required to be adduced to enable a court taking an ex-parte undefended matter by way of proof of the case in order that it might be satisfied in passing a decree on the basis thereof. To my mind, the expression "ex-parte" is synonimous with undefended as against defended case and would include a case where in an undefended case the defence has been struck out which would mean that the written statement or a part thereof has been directed to be struck out. Under such circumstances, the defendant can always come up before the court and ask for leave to cross-examine the plaintiff''s witnesses without defending the same. What he wants to do under such circumstances is to show to the court that the plaintiff who is adducing evidence is trying to say something which is not true, taking advantage of the position that the defendant is not defending the action. Thereby he is trying to assist the court in assessing the plaintiffs case in order to arrive at its satisfaction whether or not a decree could be passed in favour of the plaintiff even in the absence of the defendant''s defence. The Rules of the Original Side contemplate such a situation. According to the interpretation given by the Supreme Court decision referred to hereinabove such appears to be the view of the Supreme Court as well. It is not that by such process the defendant would be allowed to make any suggestion to the plaintiffs witnesses on the basis of the defence made out in the written statement which had been directed to be struck out nor can the court under such circumstances rely on such suggestion as was sought to be made by the court below in Day a Moyee''s case. If the court by itself, on its own accord could put any question to the plaintiff''s witnesses in order to elicit the truth, I do not see any reason why it could not allow the defendant to cross-examine the plaintiff''s witnesses particularly when he is better posted with the facts and how the matters might differ under either circumstances.

As already observed section 13(1) of the Act of 1956 restricts the court''s powers to pass an order or decree for the recovery of possession of any premises in favour of the landlord against tenant except on the grounds enumerated there under. One or more of the grounds must be there on the basis thereof the landlord would be entitled to proceed in the ejectment proceeding. Unless one or more of the grounds as enumerated in the section would be established by cogent evidence and the court would be satisfied in regard thereto the court would not have jurisdiction to pass the decree for the recovery of possession against the tenant and in favour of the landlord. These are jurisdictional facts which the plaintiff must prove in order to succeed in the suit for recovery of possession. (See K.K. Chari Vs. R.M. Seshadri, ). The satisfaction of the court is a prerequisite for the order of eviction. In my opinion, the grounds which have been enumerated in section 13(1) are not the defence against delivery of possession although the said expression no doubt directly relate to the same. What the legislature intended was that where the tenant would fail to carry out his obligation to pay rent or the equivalent amount as to be determined, the tenant would forfeit his right to proceed on the basis of his defence which he made out in his written statement and against delivery of possession with the result that the plaintiff under such circumstances would Still have to satisfy the court on cogent evidence and would have to prove the same to the satisfaction of the court and then only he could obtain an order or a decree for recovery of possession, as the case may be, provided of course the other requirements of proof in connection with the suit are also complied with on behalf of the plaintiff. I have already observed that when the defence against delivery of possession is directed to be struck out by the court, what is actually struck out, must be the written statement. Mr. Kapur contends otherwise According to the learned advocate it refers to the entire defense i.e. the right to appear, the right to take any part in the proceeding; the right to cross-examine the plaintiffs witnesses and the right to make his submission before the court or to call his own witnesses. It is contended that the legislature has intended to debar him completely from putting up any sort of defence directly or indirectly on his failure to perform his obligation as provided u/s 17(3). If his defence is specifically stated to be struck out how could he claim to have the right to cross-examine the plaintiff''s witnesses which is a part of his defence and which he has lost. If that would be permitted then there could be no meaning to provide for the striking out of the defence of the defendant qua his right as a tenant. Mr. Ghose on the other hand contends that what has been struck out is his defence against delivery of possession. In spite thereof he could defend the plaintiff''s suit. To that the plaintiff cannot object. The tenant has a right to say that the plaintiff''s case is not true and the witnesses adducing evidence are not speaking the truth. For that purpose he need not rely on his written statement, nor on the documents disclose on his behalf in that connection but could, if possible establish on the basis of the plaintiff''s own evidence by obtaining admission or otherwise, that the court should not be satisfied under the circumstances to rely thereon and to pass a decree for recovery of possession. If he would make suggestion to the plaintiff or his witnesses and if the same would not be established thereby the court necessarily would not rely thereon but all the same, he would not be deprived of this opportunity to cross-examine the witnesses.

I snail not repeat what I have already observed hereinabove except to say that the argument advanced by Mr. Ghose is acceptable to me. Under such circumstances, the cross-examination would have a very limited scope which is to be restricted only against the plaintiff''s case. It cannot be directed to establish his own defence relating to be struck out. To my mind, when the defence against delivery of possession is directed to be struck out the matter goes back to the position when the defendant entered appearance after service of the Writ of Summons on him. It is as if, from that stage onwards, he did not take step in the matter, in other words, the matter proceeded ex-parte. Under such circumstances the recovery of possession could only be obtained by the plaintiff upon satisfactory proof of the ground or grounds enumerated in section 13(1) of the Act subject to the proof of other matters required by law to be proved. Such other matters relate to averments in the plaint in respect whereof the averment in the written statement remain untouched even after the defence against delivery of possession is directed to be struck out and the matter would remain a contested one to that extent. What is emphasised is that when the court directs the defence to be struck out it does not make an order in the air. It makes the order to that effect so as to effect the defendant''s defence in the written statement.

It is sought to be argued that in view of the drastic changes made in the provision of Order VIII Rules 1 and 4 (4) of the Code, by the amendment Act of 1976, the position now is that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability. but the court may, in its discretion, require any such fact to be proved. Under sub-rule (1) of rule 5 of Order VIII "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability". That being the provision, it is contended, that the court, after directing the defence to be struck out u/s 17(3), would have to proceed on the basis of the allegation of fact in the plaint regarding delivery of possession, and the same are to be taken admitted and on that basis in its discretion, would pass the decree. In my opinion, in view of the special provision of section 13(1) of the West Bengal Premises Tenancy Act of 1956 such an argument can hardly be accepted. The requirement as provided in section 13(1) cannot be set at naught by taking recourse to the said provision of the Code.

It is sought to be argued also that if the right of cross-examination in respect of such point is allowed it would create utter confusion and in that garb of cross-examination many things would be sought to be agitated thereby creating confusion in such matters. In my opinion, that is no ground at all for holding that the right of cross-examination should be refused although the same is otherwise justified. The courts are there to deal with the case in a firm hand and it is the duty of the court to stop the cross-examination if the same would be necessary in the facts and circumstances of any case to the extent.

I do not see how this Limited right to cross-examine the plaintiffs witnesses can he taken away from the defendant although the legislature had not specifically so done either by express words or by necessary implication, but on the contrary such a right has been conferred on him even in an undefended suit or where the matter is proceeding ex-parte. If the defendant gets such a right even without filing his written statement I do not see any reason why he should be deprived of such a right when his written statement was filed in the normal course but his defence had been directed to be struck out u/s 17(3). To do so, in my opinion, would lead to illogical and unreasonable consequences.

It has been argued that if such right of cross-examination would be allowed it would amount to taking away the defendant''s right by one hand and to return the same by the other. I think such an argument is fallacious and cannot be accepted. What is sought to be conferred by section 17(4) is to protect the tenant from eviction on the around of non-payment of rent and what is taken away from him is to deprive him of his defence in respect of the protection which is conferred on him under that sub-section as also u/s 13 (1) when the tenant falls to deposit rent in accordance therewith. There is sought reason and good logic behind this which I think is consistent with the provision of the said special statute. The penalty is not that he would he debarred from appearing anymore in the suit if he would fail to deposit the rent as provided there under. The penalty as the language would suggest has a Limited scope to the extent as explained above In short he would he put back to the same position where he had reached before filing his written statement It is nothing more and nothing less.

Lastly, I should refer to another Full Bench decision of this court in the case of Sudhir Chandra Ghosh and Others Vs. Sachindra Nath Ghosh, In that case Amitava Dutta J. concurring with the decisions of the other two learned Judges (P. K. Banerjee and Moitra JJ.) at page 281 observed.

The court cannot limit the said period to three years proceeding the date of the suit. Such confinement of the period will also be not justified as the determination of the amount payable is made at the instance of the tenant seeking protection in terms of section 17 and not on the application of the landlord The procedure is not a source or foundation of the landlord''s right to recover the arrears. It gives the tenant option to avail of the conditional protection. If he chooses not to avail of it and his defence against delivery of possession is struck out as a consequence he can still contest the suit by cross-examining the plaintiff''s witnesses on all points and making submissions on the merits of the plaintiff''s case before the court. It has been so held in the case of Dayamoyee Sadhukan v. Dal Singer Singh (1980) 1 Cal. H.N. 498-A.I.R. 1979 Cal. 372.

The above observations were made by the learned Judge while sitting in the Full Bench and discussing directly with the point in issue before the said Full Bench and in no uncertain terms supported the view I have taken and approved of the decision of the Division Bench in Dayamoyee''s case (supra). I do not know why the said view of Amitava Dutta J, would not be considered as the view taken by the said Full Bench. Moreover, the above pronouncement of the Full Bench is later in point of time and the later pronouncement (even assuming the same to be not obiter) and in accordance with the rules or construction of judicial precedents.

In that view of the matter, my answer to the points referred to the Full Bench would be that the defendant whose defence against delivery of possession has been struck out u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 does not lose his right to cross-examine the plaintiff''s witnesses in respect whereof such defence has been struck out; but such a defendant has no right to call his own witnesses on the points in respect whereof his defence has been directed to be struck out.

I answer the reference accordingly. There will be no order as to costs. The matter be sent back to the trial court to proceed with it an accordance with law.

Banerjee, J.—This reference has been made by the Hon''ble single Judge under Chanter V Rules 2 and 3 of the Original Side Rules. The Hon''ble single Judge has not framed the question in his judgment. The question which calls for decision is whether in a suit for eviction coming under the West Bengal Premises Tenancy Act, 1956 and when an orders. 17(3) of the West Bengal Premises Tenancy Act is made "striking out the defence of the tenant against delivery of possession", the defendant has any right to cross-examine the witnesses of the plaintiff.

Mr. Dipankar Ghosh appearing for the tenant contended that in view of the decision reported in Debendra Nath Dutt Vs. Sm. Satyabala Dasi and Others, presided over by Mr. Justice P. B. Mukharji the defendant Is entitled to adduce evidence and cross- examine the plaintiff''s witnesses even though the defendant cannot lead evidence Mr. Ghosh further contended that, even if the defendant has not entered appearance, the defendant has right to cross-examine the plaintiff''s witnesses and to make submission before the Court. It is argued that even when the written statement has not been filed, the right to cross-examine the plaintiff''s witnesses by the defendant exists. Even though it is argued, the suit is heard ex parte, still the defendant has right to cross-examine the witnesses and has also right to place the case before the Court and make submission on law as also on the evidence adduced by the plaintiff. According to Mr. Ghosh the effect of striking out of the defence is tantamount to putting the person in the same position as he would have been if he did not file written statement at all. According to him the word "ex parte" really means, there is no written statement but the defendant has still tight to cross-examine the witnesses.

Mr. Ranjan Deb appearing for the plaintiff, however, contended that where the tenant is governed under the West Bengal Premises Tenancy Act he is not entitled to cross-examine the plaintiff''s witnesses when the defence against delivery of possession has been struck out. He argued that under S. 17(3) of the Act, when defence against delivery of possession has been struck out, the defendant has no right to cross-examine the plaintiff''s witnesses in a suit for eviction otherwise the words "striking out of the defence" will be of no consequence to the defendant, inasmuch as, the defendant will have every right to cross-examine the plaintiff''s witnesses and make submission on law and fact. Mr. Deb contended that the filing of the written statement is a defence of the defendant and that defence is based on the written statement itself. If the defence against delivery of possession is struck out, the defendant cannot be allowed to cross-examine the witnesses who adduce evidence on behalf of the plaintiff.

Mr. Kapur appearing as a leader to Mr. Deb took over and argued more or less under the same strain as Mr. Deb has done on behalf of the plaintiff landlord. It is argued by Mr. Kapur that when the defence against delivery of possession is struck out his entire defence against the delivery of possession goes. The word "defence" must be given natural meaning and will include and all the defence that the defendant might have to resist the plea of the plaintiff for eviction.

Mr. Ghosh and Mr. Kapur relied upon the expression ''striking out of the defence'', under O. 11 R. 21 of the CPC by which the defence against delivery of possession has been struck out in support of their contentions.

In the case reported in Debendra Nath Dutt Vs. Sm. Satyabala Dasi and Others, Mr. Justice P. B. Mukharji was considering the Calcutta High Court Rules (Original Side ) in particular Chapters 8 and 9 and the expression "entered appearance" under the Original Side Rules. His Lordship held in paragraph 15 that under the Original Side Rules "there is no rule which prevents the party from appearing when a suit is called on for hearing even though he has not "entered appearance". The words "enter appearance" are technical words used in the Rules of the Original Side, they must not be given any meaning save that the Rules attribute Further down in the said paragraph. His Lordship held that "Chapter 8 R. 6 of our Rules provides that if such appearance is not entered "the suit is liable to be heard ex parte", while Chapter 9 R. 2 of our Rules provides that no written statement will be allowed to be filed if no appearance has been entered. Thus there are two consequences of not entering appearance under the Rules. One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed. In that context, P.B. Mukherji, J. held as follows:

I am not inclined to impose more punishment than those two so explicitly stated by the Rules. Therefore I am of the opinion that a party subject to these handicaps imposed by the Rules can still appear under the CPC when the suit is called on for hearing from the undefended list, not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiff''s case on evidence that the Court will not pass any decree in the plaintiff''s favour but also to make such arguments and submission on law and on such evidence as the plaintiff may have brought to the Court. There are, in my opinion, valuable rights under the Court which are not taking away by any Rules of the Original Side.

In a case reported in Satya Narain Vs. Naraindas Dhanuka and Others, the Division Bench of this Court while considering the effect of the West Bengal Premises Rent Control (Temporary Provisions) Act in particular S. 14(4) of the Act held in the following terms :

Where the tenant''s defence to the suit for ejectment was struck of under S. 14(4) and therefore at the date of hearing there was no occasion for him to appear and he would not also have been entitled to appear and the suit was decreed ex parte.

In the said case their Lordships were considering the scope of an application under O. 9 R. 13 of the CPC and held that "in an event, there could have been no sufficient cause, as contemplated and as such no application under O. 9 R. 13 of the Code for the setting aside of the ''ex parte'' decree would have lain to the learned trial Judge" and that an application under O. 9 R. 13 is not maintainable when defence against delivery of possession has been struck out under S. 14(4) of the 1950 Rent Act.

The case reported in AIR 1955 Cal. 685 (S. B. Trading Co. v. O. T. Corporation) is also a case which arises out of an ejectment suit where the defence against delivery of possession was struck out under S. 14(4) of the 1950 Act. In the said case Mr. Justice Sarkar (as he then was) Interpreting rule 3 of Chapter XIV of the Rules of the Original Side of this Court held inter alia, that,-

S. 14(4) of the Rent Act provides that upon default in paying the rent in terms of an order for payment thereof made under it, the court shall order the defence against the 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. It seems to me that if I allow the defendants in this case to cross-examine the plaintiff''s witnesses on their evidence as to the facts establishing the claim to ejectment and to address the Court with regard to that claim, I am really allowing the defendants to defend the claim against ejectment. Section 14(4) says that this the defendants cannot do.

His Lordship further held that in such case the defendants are not entitled to cross-examine the plaintiff''s witnesses and address the Court on that part of this case which is concerned with their ejectment.

The case reported in D.R. Gellatly Vs. J.R.W. Cannon, is also a judgment of the Division Bench of this Court presided over by Mr. Justice Chakravarti (C.J.). This case was under S. 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act. His Lordship held, inter alia, that-

the language of S. 14(4) is in no way qualified. The policy of the section or, indeed the whole Act seems to be that the Legislature is not minded to protect a tenant who will not even pay the monthly rent regularly. 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. I do not find any justification in the language of S. 14(4) to limit the defence against ejectment contemplated by It to defence against ejectment only on the ground mentioned in S. 12(1)(i) of the Act.

On the basis of this case, it has been argued, by Mr. Ghosh that the Division Bench judgment reported in D.R. Gellatly Vs. J.R.W. Cannon, held that though they may not have protection under the Rent Act, still the tenant will be relegated to his position under the general law i.e., Transfer of Property Act. In my opinion, this argument cannot be given effect to. The whole effect of the judgment of the Division Bench reported in S.B. Trading Co., Ltd., Vs. Olympia Trading Corpn. Ltd. and Another, , D.R. Gellatly Vs. J.R.W. Cannon, as also Satya Narain Vs. Naraindas Dhanuka and Others, is that when the defence against delivery of possession under S. 14(4) of the Act has been struck out his defence against eviction is struck out as if he has not entered his defence at all.

The case reported in Ajit Kumar Sen Gupta Vs. Baijnath Somani and Others, is also a case decided by Mr. Justice Renupada Mukherjee. It has been held that where such a suit is contested, the tenant puts forth a defence against the ground or grounds alleged in the plaint. Sub-section (3) of S. 17 lays down that a tenant who incurs the penalty contained in that sub-section shall not be permitted to press his defence against delivery of possession which has been struck out. The Hon''ble single Judge however, held that this has no reference to the service of notice or to its validity. It may be that the service of a notice to quit is condition precedent to the institution of a suit for ejectment under S. 13(6) of the Act but it cannot be said by any stretch of imagination that the notice has any connection, direct or remote, with the several grounds of ejectment enumerated in clauses (a) to (I) of sub-s. (I) of S. 13 of the Act. That being the position it will be permissible for a tenant whose defence against delivery of possession has been struck out to contest the suit of the plaintiff landlord on the ground that the notice to quit has not been served upon him, or that the notice is not legal or sufficient.

The case reported in Maharam Ali Vs. Dinanath Prasad Sha, is a judgment of the Hon''ble single Judge. The Hon''bie single Judge was considering the effect of defence against eviction vis a vis S. 13 of the said Act. In paragraph 9 it has been held, inter alia, that -

merely because that defence is struck out, it will not automatically imply or mean that the relevant grounds have been established as required under S. 13(1), The landlord has to establish by evidence all or any of the grounds for ejectment apart from the evidence that might have been produced by him at the hearing of his application under S. 17(3). Such evidence would be subject to cross-examination by the tenant though he will not be permitted to adduce evidence in support of his own case after striking out of his defence against recovery of possession.

The case reported in Subodh Chandra Singha Vs. Santosh Kumar Srimani, , on which reliance was placed by Mr. Ghosh, is a Division Bench judgment presided over by Mr. justice P. N. Mookherjee. It has been held that even if the tenant''s defence are struck out under S. 17(3) of the Act, S. 13(6) imposes a bar to the filing of a suit by the landlord without service of an appropriate notice; and the tenant is entitled to challenge the validity of the notice to quit in an appeal from the ex parte ejectment decree. At pages 187 to 188, Mr. Justice Mookherjee held that-

the mere striking out of the tenant''s defence, - be it the general defence under the law or only the special defence, if any, under the above Act, - would not, therefore, affect this position and improve the plaintiff''s lot and its only effect will be that the tenant, whose defence has been struck out, will be placed merely in the position of one, who has not defended the suit and the suit would proceed ex parte. In other words, the result will be that the suit will be heard ex parte. Even at this ex parte hearing, however, the plaintiff will have to prove that he has complied with all the requirements, which would entitle him to maintain the suit. The position, in regard to the notice under S. 13(6), in this respect, is, In no way, different from the position in regard to a notice to quit and it is, certainly, well and firmly established that, even in an appeal from an ex parte decree for ejectment, the tenant is entitled to challenge the validity and sufficiency of the notice to quit.

The case reported in 73 CWN 365 (B. Ganeriwala v. Canton Carpentry) is a judgment by the Division Bench presided over by Mr. Justice R. N. Dutt. It has been held in the Said case, inter alia, that when a tenant''s defence against delivery of possession has been struck out under S. 17(3) of the 1956 Act, he cannot retain the right to cross-examine the plaintiffs witnesses on all points. The Hon''bie Judge repelled the argument of the learned Advocate for the appellant and held that "even when the defence against delivery of possession is struck out, the tenant is only prevented from examining his own witnesses." In the said case it has been held that when the defence against delivery of possession is struck out under S. 17(3) of 1956 Act, what is struck out is his special defence under S. 13(1) of the 1956 Act.

To my mind to allow the defendant to cross-examine the plaintiff''s witnesses after the order is made under S. 17(3) of the Act will in effect make S. 17(3) nugatory for all practical purpose. Reliance has been placed by Mr. Ghosh on two judgments of the Supreme Court reported in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, and Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, in support of his contention regarding his right to cross-examine the witnesses. Their Lordships of the Supreme Court were considering whether on the date of adjourned hearing of an election petition after the first hearing was ex parte, the defendant could cross-examine the witnesses on the date of adjourned hearing. The Supreme Court held, inter alia, that after the ex parte hearing on the first hearing date, the defendant had a right to appear on the date of adjourned hearing, it could not be held that due to his non-appearance on the first hearing he could not be allowed to appear at all if he did not show good cause. All that it means is that he cannot be relegated to the position he would have occupied if he had appeared. In the said judgment Their Lordships held at page 432 as follows :

Now R. 2 only applies when one or both of the parties do not appear ''on the day fixed'' for the adjourned hearing. In that event, the Court is thrown back to O. 9 with the additional power to make "such order as it thinks fit". When it goes back to O. 9 it finds that it is again empowered to proceed ''ex parte'' on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed ''ex parte'' is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to O. 9, R. 6.

The said judgment according to me was not under O. 11 R. 21 at all. It will appear from the facts of this case that Their Lordships of the Supreme Court were considering O. 9, R. 6(1)(a), R. 7, O. 17, R. 2 of the CPC and no reference has been made to O. 11, R. 21 of the Code of Civil Procedure. The Supreme Court in the subsequent judgment reported in Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, was considering the effect of non-compliance with the order under O. 11, R. 21. Their Lordships held that the order of striking out the defence of the defendant was wholly unjustified on the facts and circumstances of the case and in paragraphs 24 and 25 Their Lordships stated as follows :

The principle governing the court''s exercise of its discretion under O. XI, R. 21, as already stated, is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a willful attempt to disregard the order of the court that the trial of the suit is arrested. Applying this test, it is quite clear that there was no wilful default on this part of the defendant of the court''s order under O. XI, R. 18(2) for the production of documents for inspection and consequently, the order passed by the trial court on 23rd May, 1967, striking out the defence of the defendant must be vacated, and the trial must proceed afresh from the stage where the defendant was not permitted to participate.

It was further contended that the High Court was in error in observing that "in view of the clear language of O. XI, R. 21 the defendant has no right to cross-examine the plaintiff''s witnesses. A perusal of O. XI, R. 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant'' be placed In the same position as if he has not defended''. This indicates that once the defence is struck off under O. XI R. 21 the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte. In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, it was held that if the court proceeds ex parte against the defendant under O. XI, R. 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make prima facie case, the court may dismiss the plaintiff''s suit. Every Judge dealing with an ex parte case has to take care that the plaintiff''s case is, at least, prima facie proved. But, as we set aside the order under O. XI, R. 21, this contention does not survive for our consideration. We, therefore, refrain from expressing any opinion on the question.

In the case the Supreme Court has specifically made it clear that the Supreme Court has not expressed opinion regarding the effect on the question of non-compliance of O. XI, R. 21 of the C. P. C. The Full Bench decision reported in Gurudas Biswas Vs. Charu Panna Seal and Others, answered two points, namely, (1) whether a defendant whose defence against delivery of possession has been struct out under S. 17(3) can take the defence of the non-existence of or invalidity of a notice under S. 13(6) of the Act 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 defence as to the non-existence or invalidity of the notice to quit for the first time in appeal. The Full Bench speaking through Mr. Justice A. K. De held as follows:

That being the position in law, 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, both at the trial and also at the appeal stage, that the plaintiff is not entitled to the decree prayed for, though he would not be permitted either to cross-examine plaintiff''s witnesses, when they give evidence, or to call his own witnesses at the trial, if his defence is struck out.

It was further held that he, however, can take the point as to the non existence or invalidity of the notice under S. 13(6) of the Act and can cross-examine the plaintiffs witnesses on that point. In the Surya Properties case reported in Abdul Samad Bepari Vs. Manasha Charan Bakshi, , the Full Bench of this Court held that in order to maintain a suit for ejectment under the West Bengal Premises Tenancy Act, a notice under S. 106 of the Transfer of Property Act by determining the tenancy as also a notice under S. 13(6) of the Act namely, the notices of suit are to be given. These two notices may be a combined notice. The Supreme Court in the case reported in V. Dhanapal Chettiar Vs. Yesodai Ammal, held, inter alia, that in a proceeding under the Tenancy Act unless the Rent Act provides specific notice, no notice determining the tenancy under S. 106 of the Transfer of Property Act is necessary. It has also been held that in Bombay Act, as also in the West Bengal Act. a notice of suit is necessary under S. 13(6) of the Act. Before the said judgment. the Full Bench of this Court in a case reported in Gurudas Biswas Vs. Charu Panna Seal and Others, held that the notice of suit under S. 13(6) of the Act must be given and the defendant even when his defence against delivery of possession was struck out could cross-examine the witnesses for the plaintiff regarding the notice of suit. In the case reported in Sm. Daya Moyee Sadhukhan Vs. Dal Singer Singh, their Lordships of the Division Bench however hold that where the defence agains the delivery of possession has been struck out the defendant will be entitled to adduce, evidence. It was stated that the defendant will be entitled to participate in the proceeding and cross-examine the plaintiff''s witnesses and to adduce evidence by examining himself on the point of notice.

Coming to the provision of S. 17 of the West Bengal Premises Tenancy Act and the amendment made to the different sections of the Act, it appears to me that after the defence against delivery of possession has been struck out at volition of the defendant tenant to get the protection of the benefit given to the tenant to deposit rent under S. 17 is taken away, such defendant-tenant cannot be allowed to cross-examine the witnesses of the plaintiff excepting on the ground of notice under S. 13 (6) of the West Bengal Premises Tenancy Act. It will appear from the object and reason which led to the amendment of S. 17 was always inserted in order to protect the defaulting tenant and five another chance to get rid of the decree from eviction on violation of the provision of Ss. 17 (1) and 17(1) of the Act. It will appear that S. 17 (1) was amended by the West Bengal Premise Tenancy (Amendment) Act XXVII of 1959. Again amendment was made in 1965 by Act XXIX of 1965 Section 17 (2A) was inserted by Act XXX of 1969 Section 17(3) was amended again by Act XXX of 1969 Section 17A was inserted by Act XXX of 1969 Section 17B was also added. Sections 17C and 17D were also inserted by different amendment by Which power is given to the Court to set aside the decree already passed if the possession of such property has not not been taken. It is clear from the object and reason of the amendments that the Legislature wanted to give the power to the tenant who is defaulter in payment of rent to apply for setting aside the decree already passed if the possession has not been taken on payment of such due not paid under S. 17(1) or 17(2) of the Act. From the object and reason it appears that 1967 Act by which S. 17(1) was added and which was further amended by Act XXXIV of 1969 provides for protection of the tenant against the eviction and the condition under which the tenant shall be entitled to get the benefit of protection. The object and reason of 1956 Act by which S. 17 was amended allows the plaintiff to deposit rent with the Rent Controller during the pendency of the suit and to apply for setting aside the decree in certain cases. Act XXXIX of 1969 also provides for protection of the defaulting tenant whose possession has not been taken. It will appear from the object and reason by which the Ordinance was promulgated'' in 1967 which was subsequently enacted by Act XXIX of 1967 provides that the Court had discretion whether to strike out the defence against ejectment or not even in case of failure to deposit or to pay arrears due in time and the tenant had an opportunity for once only to avoid ejectment on the ground of default in payment of rent irrespective of the period of default by making deposit or payment of all arrears due. On any subsequent occasion however the default in payment of rent for 4 months within a period of 12 months debarred him from getting any relief. This Ordinance also give power to the Court to set aside the order in pending the suit and decrees passed before the commencement of the Act and not executed, in cases where the defence of the tenant was struck out : if the tenant deposited whatever amount due on account of rent from him within the time by the Court. All those rent Legislations make it clear that the intention of the legislature was that the defendant who has not paid rent in accordance with Ss. 17(1), (2) and 17(2A) of the Act between the period limited thereby his defence is struck out under S. 17 (3) or in the other words the protection given to the tenant under S. 17 is only given to those tenants who acted in accordance with Ss. 17 (1), 17(2) and 17(2A) of the protection against eviction. It is quite clear, in my opinion, that S. 13 also gives protection from eviction of the tenant but in order to defend the eviction of tenancy, he must comply with the provision of Ss. 17(1), 17(2) and 17(2A) as the case may be. It is the tenant who can get the benefit of the protection by his own volition. It is not necessary for the tenant or for the landlord to apply. If only the tenant has not deposited rent under S. 17 (1) or 17(2) or 17(2A) of the Act. the landlord has right to apply under S. 17(3).

It is clear from the wording of S. 13 of the Act that the landlord cannot get a degree or order for recovery of possession notwithstanding anything to the contrary in any other law unless the landlord makes out a case as contained in S. 13(1) (a) to (1) of the Act. In my opinion, therefore once the tenant has not deposited by his own volition the amount calculated as contained in s. 17 (1) of the Act and/or the order made under Ss. 17(2) or 17(2A) of the Act it is open to the landlord to file an application under S. 17 (3) of the Act and once the order is made under such section the defendant-tenant cannot. cross-examine the plaintiff''s witnesses or make any submission whatsoever against the delivery of possession. I am of the opinion in view of the Special Bench decision reported in Gurudas Biswas Vs. Charu Panna Seal and Others, that the notice under S. 13 (6) of the Act being the condition precedent for filing the suit it is open to the tenant to contend that the notice is not valid and the validity and sufficiency of the notice can be agitated even at that stage if the defence against delivery of possession is struck out.

I am therefore of the view that the case reported in Sm. Daya Moyee Sadhukhan Vs. Dal Singer Singh, was not rightly decided and hold that in a case when the defence against delivery of possession is struck out under S. 17(3) of the West Bengal Premises. Tenancy Act the defendant cannot cross-examine the plaintiff''s witnesses at all except on the ground of notice as decided by the Full Bench Decision reported in Gurudas Biswas Vs. Charu Panna Seal and Others, .

1. therefore answer to the question before us accordingly. Mookerjee, J. Kamakshya Singh Deo, the plaintiff above-named, has instituted the instant suit against Modula India, the defendant, for a decree directing the said defendant to deliver up vacant and peaceful possession of Flat No. 3 of the ground flour of premises NO. 3E, Camac Street. Calcutta and for recovery of further mesne profits at the rate of Rs. 75/- per diem till the recovery of possession. The defendant had filed a written statement contesting the said suit but its defence against delivery of possession had been struck out by an order of the trial court passed under S. 17(3) of the West Bengal Premises Tenancy Act. 1906. When the suit came up for final hearing before Khastagir, J., the defendant wanted to cross-examine the plaintiff''s witnesses on all points and not merely on the question of the notice under S. 13(6) of the West Bengal Premises Tenancy Act, 1956. In support of its said prayer the defendant relied upon the decision of Murari Mohan Dutta and R. K. Sharma, JJ. in Sm. Daya Moyee Sadhukhan Vs. Dal Singer Singh, . Khastagir, J. after referring to several other reported decisions including the Full Bench decision in Gurudas Biswas Vs. Charu Panna Seal and Others, , made a report under Chapter VI Rule 2 of the Rules of the High Court at Calcutta. Original Side so that the learned Chief Justice might constitute a larger Bench for hearing the Question whether after its "defence against delivery of possession." struck out by an order under S. 17(3) of the West Bengal Premises Tenancy Act. 1956 the defendant tenant is entitled to cross-examine the plaintiff''s witnesses on all points. Thereupon, the learned Chief Justice has been pleased to constitute this Bench for hearing the said matter.

In order to answer the present Reference, we would have to consider the scope and effect of an order passed under S. 17(3) of the West Bengal Premises Tenancy Act. 1956. In other words. what is the meaning of the expression defence against delivery of possession is

At the outset, we record that before us the defendant tenant did not challenge the correctness of the order under S. 17(3) of the said Act of 1956 striking out its defence against delivery of possession. Therefore, we proceed to examine the question whether the defendant has still any right to cross examine on all points the plaintiff''s witnesses. Mr. Dipankar Ghosh, learned advocate for the defendant-tenant, has submitted that the effect of striking out the defence under S. 17(3) would be that it would be deemed that the defendant has not filed any written statement. According to Mr. Ghosh, after entering appearance the defendant has the following rights :

1) to file his written statement.

2) to cross-examine the plaintiffs witnesses,

3) to adduce oral and documentary evidence, and

4) to make submissions.

The expression "defence" in S. 17(3) of the Premises Tenancy Act 1956. according to Mr. Ghosh means, the defendant''s pleading or his written statement and, therefore, if his defence is struck out. his written statement is taken off the file and the suit becomes ex parte or an undefended one. Mr. Ghosh, has submitted that the defendant''s right to cross-examine the other side''s witnesses or to make submissions do not depend upon his filing a written statement. Therefore, both in case no written statement is filed and in case his written statement is struck out the defendant may at least cross-examine the plaintiff''s witnesses to demolish their evidence adduced on the plaintiff''s side. Mr. Ghosh has submitted that Murari Mohan Dutt and R. K. Sharma, JJ. in Dayamoyee Sadhukhan''s case (supra). has correctly laid down the law on the point.

Mr. Kapur, learned advocate for the plaintiff-landlord, on the other hand has submitted that the expression "defence" in S. 17(3) of the West Bengal Premises Tenancy Act. 1956 has been used in the wider sense and it comprehends a very thing with which a tenant may defend a suit for his eviction. In other words, according to Mr. Kapur, the expression "defence" in S. 17(3) of the Premises Tenancy Act, includes not only the written statement, but also right to cross-examine the plaintiff''s witnesses and to adduce evidence to resist and defeat the plaintiffs claim for delivery or possession of the premises occupied by such a tenant. Mr. Kapur has further submitted that there is no cogent reason for upsetting almost settled view of this Court that alter his defence against delivery of possession is struck out, the ejectment suit in question becomes ex parte and such a defendant tenants no longer entitled to contest the plaintiff''s claim for recovery except on the ground of invalidity of the notice under S. 13(6) of the West Bengal Premises Tenancy Act, 1956 issued by the plaintiff landlord and the service thereof. According to Mr. Kapur, the above points are concluded by the Full Bench decision of this Court in Gurudas Biswas v. Charu Panna Seal (supra). The observations regarding absence of the defendant''s right to cross-examine the plaintiff''s witnesses in paragraph 26 of the judgment or A.K. De, J. in the said Full Bench case of Gurudas Biswas v. Charu Panna Seal (supra ), were not mere obiter but were integral part of the answer by the Full Bench to the points referred. Mr. Kapur has submitted that, therefore the decision to the contrary of M. M. Dutt and R. K. Sharma, JJ., in Sm. Dayamoyee Sadhukhan''s case (supra), was not sustainable. Mr. Kapur also submitted that the Supreme court decisions noted in the said Division Bench decision in Sm. Dayamoyee Sadhukhan''s case (supra) do not support the view taken in the said case.

The learned advocates appearing for both parties had placed before us the different meanings of the words "to defend" and "defence" given in the several law dictionaries. In its wider meaning the word "defence" connotes, opposition repulse or resistance etc. In its narrower sense the expression "defence" means denial by the defendant of the truth or validity of the plaintiff''s complaint. It is unnecessary to lengthen our judgment by quoting from the said law dictionaries because the meaning of word "defence" ought to be ascertain in the context in which it has been used in sub-s. (1) of S. 17 of the West Bengal Premises Tenancy Act, 1956. Did the Legislature intend that only the written statement, i.e., statement of defence of a defendant would be scored out or rejected by passing of an order under S. 17(3) of the west Bengal Premises Tenancy Act, 1956 ? Alternatively, was it intended that after his defence is struck out, the defendant cannot at all Contest in any manner the grounds on which the plaintiff seeks recovery or possession of the premises let out to him. The sub-s. (4) of S. 14 of the west Bengal Rent Control (Temporary Provision) Act, 1950 for the first time, had provided for striking out "defence against ejectment" in the rapture or the defendant tenant to deposit the arrears or current rent ordered to be deposited. The learned advocates on both side had also placed before us the reported decisions under S. 14(4) of the rent Control Act, 1950. Therefore, before we consider the meaning of the word "defence" in Sub-s. (3) or S. 17 of the west Bengal Premises Tenancy. Act, 1950, we may refer to some of the sale reporrted decisions regarding the efect of steiking out a tenants defence against ejectment in terms of S. 14(4) of the west Bengal Premises Rent Control ( Temporary Provisions ) Act, 1950.

A. K. Sarkar, J. in S.B. Trading Co., Ltd., Vs. Olympia Trading Corpn. Ltd. and Another, , had adopted P. B. Mukharji''s enunciation of the expression "defence" in Debendra Nath Dusta v. Sm. Satuabala Dassi & 54 CWN 110 AIR 1950 Cal. 217, and A. K. Sarkar, J. had rejected the defendant tenant prayer to allow him to take part in the proceedings of the suit even his defence against ejectment had been struck out under S. 14 (4) of West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. According to Sarkar, J. if the defendant were to cross-examine the plaintiff''s witnesses and to address the court with regard to that claim, he would be really allowing the defendants to defend the claim against ejectment.

Chakravartti, C. J., and Sinha, J. in D.R. Gellatly Vs. J.R.W. Cannon, , disposed of a Rule obtained by a defendant tenant against an order under S. 14(4) of the Rent Control Act, 1950 striking out his defence against ejectment. Chakravartti, CJ., who delivered the judgment recognised that when a person is sued as a tenant pleads that he is not a tenant, then till that question is decided against him, there could be no question of proceeding against him as a tenant or applying to him S. 14(4) of the rent Control Act, 1950 or any other provision of the Act. But on facts Chakravartti, C.J., found that the defendant petitioner of the said case was not entitled to deny the relationship of landlord and tenant. Chakravartti, C.J., in D. R. Gellatly v. J. R. W. Canon (supra) observed that he was unable to give effect to the contention that what S. 14(4) contemplated was defence against ejectment on the ground mentitoned in S. 12(1)(1) of the Rent Control Act, 1950 and lid also other defences against ejectment. Chakravartti, C.J., observed that the policy of S. 14 and indeed in the whole Act, seemed to be that the legislature was not minded to protect a tenant who would not even pay his monthly rent regularly. If he did not pay, by his conduct, the tenant forfeited the special protection which the Act conferred on tenants and he would be relegated to his position under the general law. Cnakravartti, CJ., did not, however, amplify what would be the precise position of such a tenant under the general law. Presumably, Chakravartti, CJ., in his observation made in D. R. Gellatly''s case (supra), intended to refer to the legal position that even whey a suit is not contested by the defendant, the plaintiff must prove his case for obtaining a decree in his favour. A. K. Sarkar, J. in S. B. Trading Co. Ltd''s case (supra), expressed the same views when he had observed "though the defence may have been struck out," the plaintiff had yet to prove its case before a decree can be passed in its favour. In particular, the plaintiff landlord in an ejectment suit brought under the Rent Control Act, 1950 was required to prove that the defendant''s tenancy had been terminated in any of the modes mentioned in S. 111 of the Transfer of Property Act.

P. N. Mookerjee and Guha Ray, JJ. in Satya Narain Vs. Naraindas Dhanuka and Others, , held that an application under Order 9 Rule 13 or the Code would not be maintainable at the instance of a defendant tenant whose defence against ejectment had been at ready struct, out under S. 14(4) of the rent Control Act of 1950. The said Division Bench observed, inter alia that as the defendant Petitioner''s whole defence was struck on at the date of the hearing, there would have been no occasion for the petitioner to appear and he would not also be entitled to appear at the said hearing.

It is not necessary to deal at length with the decision of Renupada Mukherjee, j. in Idannessa v. Syed Abaul wadud 65 CWN 170, bacause Renupada Mukherjee, J. himself did not adhere to the said strict view about the effect or an order under S. 14(4) of the Rent Control Act, 1950 when in the case of Ajti Kumar Sen V. Baijnath Somani 65 CWN 1010, he decided that even after his defence is struck out under S. 17(3) of the west Bengal Premises Tenancy Act, 1956, the defendant could still contest the suit on the grounds of insufficiency and non-service of the notice under S. 13(6) of the Premises Tenancy Act, 1956 P. N. Mookherjee, and Guha Ray, JJ. in Satya Narain v. Naraindas Dhanuka (supra), declined to follow the decision in Idannessa Bibi''s case (supra).

Thus, all the three reported decisions in S. B. Trading Co. Ltd''s case (supra), D. R. Gellatly''s case (supra) and in Satya Narayan''s case (supra), uniformly held that the expression "defence against ejectment" in S. 14(4) of the Rent Control Act, 1950 meant the whole or the entire defence of a tenant against his ejectment. After his defence was struck off, he could, not appear and. contest the suit for his eviction. Clearly the basis of all the three aforesaid reported decisions was that the expression "defence" in S. 14(4) of the Rent Control Act, 1950, had been used in its wider meaning, i.e., to contest the plaintiff''s claim by (1) entering appearance, (2) by filing or written statement, (3) cross-examining the plaintiff''s witnesses and (4) making submissions before the court.

In my view, the said expression "defence against ejectment" in S. 14(4). of the Rent Control Act, 1950 did not admit of any other meaning, The opening words of the said sud-s. (4) or S. 14 were-

If the tenant contests the suit as regard claim for ejectment.

The other expression in S. 14(4) of the Rent Control Act of 1950, "defence against ejectment" was, therefore, clearly referable to the grounds on which a tenant could contest the landlords claim for his ejectment. The said legal position was made clearer by the following expression in S. 14(4) -

The tenant to be placed in the same position as it he had not defended the claim to ejectment.

As a result of striking out a tenant''s defence under S. 14(4) of the Rent control Act, 1950, a legal fiction would arise by which he will be in the same positron as it he had not at all appeared and had contested the ejectment suit against him.

The majority judgment delivered by Chakravartti, C.J. in Full Bench case of T.S.R. Sharma v. Nagendra Bala Devi Chaudhurani 57 CWN 1, throws some light in S. 14(4) of the Rent Control Act, 1950 and the effect of passing an order for striking out defence. Chakravartti, C.J., had observed at page 8 of the reports. "It is being questioned that the right of the defendant in a suit to have his defence considered by the court is a substantive right. It is part of the rule of natural justice that a man shall be heard before an order is made against him and is protected by the procedural Codes except that in certain very special cases certain limitations are imposed on it". The S. 14(4) of Rent Control Act, 1950 abridged and curtailed the tenant''s said substantive right to file his defence and to have it considered. Chakaravartti, C.J., also was not inclined to accept the submission made on behalf of the plaintiff landlord that even if the defendant did not file his written statement, he would still require the plaintiff to prove his case and the formal filing of a written statement was, therefore, merely procedural (vide page i otat page 9 of the reports. Chakaravartti, C.J., at page 10 of the reports had observed that it was impossible for a defendant who has a defence, to put the whole case before the court in course of requiring the plaintiff to prove his Case. Chakaravartti, C.J., at page 12 of his Judgment had further observed that S. 14(4) of the Rent Control Act, 1950 did not content any provision for granting letter but on the other hand had, provided for imposition of a liability. Secondly said Sub-s. (4) or S. 14 of the Rent Control Act, 1950 imposed a penalty upon the tenant against whom an ejectment suit on the ground of default in payment of rent had been filed and who did not comply with an order for deposit of arrears and current rents.

P. B. Mukherji, J. in Debendra Nath Dutta v. Sm. Satya Bala Dassi (supra) had dismissed an application by plaintiff for restoration of his suit which had been dismissed for default. P. B. Mukherji, J. treated the plaintiff''s said restoration application as one under Order 9 Rule of the Code and dismissed the said application as barred by limitation under Article 163 of the Limitation Act, 1908. P. B. Mukherji, J.''s observations at page 17b of the report about the defendant''s right to cross-examine the plaintiffs witnesses in an undefended suit were not strictly necessary for the decision in Debendra Nath Dutta v. Satya Balla Dassi (supra). Therefore, the said observations were mere obiter. Secondly, orders passed under S. 14(4) of the Rent Control Act, 1950 or under S. 17(3) of the Premises Tenancy Act, 1956 are penal in nature and take away the substantive rights of defence of tenant. But the Order 9 Rule 6(a) of the Cede does not prescribe any penalty or punishment for defendant who does not appear and the court proceeds ex parte. The defendant is also not prevented from appearing on another date to which the case might be adjourned, (vide Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, ). Lastly, P. B. Mukherji, J. in Debendra Nath Dutta v. Satya Bala Dassi (supra), while making the said observations at page 176 did not expressly mention Chapter XIV Rule 3 of the original Side Rules. Under the said Rule 3 the defendant has no unfettered right to contest a suit which is being heard ex parte against him. Only if the court allows the defendant can cross-examine in person the plaintiff''s witnesses and address the court; but unless the court otherwise specially orders evidence will not be received on his behalf nor will he be allowed the assistance of an advocate or attorney.

The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was repealed and the West bengal Premises Tenancy Act, 1956 had come into force with effect from 1st April 1956 The sub-s. (3) of S. 17 of the said Act of 1956 now reads as follows :

If a tenant fails to deposit or pay any amount referred to in sub-s. (1) or sub-s. (2) within the time specked the rein or within such extended time as may be allowed under clause (a) of sub-s. (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-s. (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

We may now proceed to examine the question whether by inserting the words ''''defence against delivery of possesion" in sub-s. (3) of S. 17 of the West bengal Premises Tenancy Act, 1956 the legislature had intended to retain the same meaning of the word "defence" which, in the context of S. 14(4) of the Rent Control Act or 1950, had been judicially interpreted to mean me entire defence against ejectment. One of the Rules or construction is that where a statute is repeated and is re-enacted and the words used in the repealed statute are re-produced in the new statute, they should be interpreted in the sense which had been Judicially put on them under the repealed Act because the legislature is presumed to be acquainted with the construction which the court had put upon the words and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the courts as correctly reflecting the legislative mind (See Bengal Immunity v. State of Binar, 1955 (2) SCR 605 (624) : AIR 1955 SC 749, P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , Ishan tsuun Chandra v. Safiullah AIR 1923 Cal. 331 (333), Purushottamdas Dalmia Vs. The State of West Bengal, .

The expression "defence against ejectment" used in S. 14(4) of the previous Act and "defence against delivery of possession" used in S. 17(3) of the subsequent Act of 1956 have almost the same meaning. "To eject" means "to evict from property", i. e., "to recover possession". When the plaintiff is granted a decree for recovery of possession or for. ejectment against a defendant, the latter is thereby ordered to deliver possession to the plaintiff decree-holder, i.e. to put the plaintiff in possession (vide Form No. 23 for Decree for Recovery of Land etc. in Appendex ''D'' of the Civil Procedure Code, 1908). But before we can conclude that the effect of striking out the defence under S. 15 (4) of the previous Act of 1950 and under the subsequent Act of 1956 are same, it is necessary to examine some of the other expressions used in the said two sub-sections and to decide whether or not thereby the legislature has intended to alter meaning of the word "defence" in S. 17(3) of the Premises Tenancy Act 1950. In other words, whether in the context of S. 17(3) of the Act of 1956, the expression "defence" connotes, only the written statement and no longer includes the other steps for defending the plaintiff''s claim for delivery of possession i.e., Cross examining of the plaintiffs witnesses, adducing evidence and making submissions before the court. Undoubtedly, there are some points of distinction between S. 14(4) of the Rent Control Art. 1950 and S. 17(3) of the Promises Tenancy Act, 1956.

It may he noticed that while previous sub-s. (4) of S. 14 of the Rent Control Act. 1050 applied to ejectment suits only on the ground of default mentioned in S. 12(1) (i) of the Act of 1050. the sub-ss. (1), (2). (2A) and (3) of S. 17 of the Act of 1956 apply to all suits for ejectment on any one or more of the grounds referred to in S. 13 of the said Act of 1956. The said difference however, is not very material for deciding the effect, of striking out "defence against delivery of possession". In comparing the effect of striking out defence under S. 14(4) of the earlier Act and under S. 17(3) of the subsequent Act, the more pertinent question is whether any mate rial change in the content of the S. 17(3) of the subsequent Act has been made by inserting in S. 17(3) of the Premises Tenancy Act. 1956 the words ".......and shall proceed with the hearing of the suit" in place of "..... and the tenant to be placed in the same position as if he had not defended the claim to ejectment" which appeared in S. 14(4) of the previous Rent Control Act of 1950. It may be, however, noted that in spite of the alterations in the language used, the majority of the reported decisions of this Court have held that once his "defence against delivery of possession" under S. 17(3) of the Premises Tenancy Act. 1056 is struck out, a tenant can only contest the issue regarding the validity of the notice of suit under S. 13 (6) of the Premises Tenancy Act, 1956 and the service thereof. But P. B. Mukherji, J. in Deo Chand Singh''s case, S. K. Dutta, J in Maharam Ali Vs. Dinanath Prasad Sha, and M. M. Dutt and R. K. Sharma, JJ. in Daya Moyee Sadhukhan vs. Dal Singer Sinqh (supra) have spoken in different voices.

Before we individually deal with some of these reported decisions on S. 17 (3) of the West Bengal Premises Tenancy Act. 1956. it is necessary to mention that in respect of provisions in different Rent Control Legislations for eviction of tenants the following legal propositions have been firmly established.

The provisions in the different Rent Control Legislations in respect of suits and proceeding for eviction are no longer considered as measures merely for protection of tenants. The said provisions also abridge or restrict the jurisdiction of Courts and authorities to pass orders or decrees for recovery of premises against the tenants projected under the Rent Control Legislation. The question being one of jurisdiction, the court is now under a duty to satisfy itself as to the truth of the plaintiff landlord''s claim for possession (vide Kaushalya Devi and Others Vs. Shri K.L. Bansal, . Ferozi Lal Jain Vs. Man Mal and Another, ) It has been also all along recognised that even if case of an ex parte hearing the plaintiff is bound to prove his case to the satisfaction of the court and his burden is not lightened because the defendant is absent (see Rai Satyendra Nath Sen Bahadur and Others Vs. Narendra Nath Gupta and Others, ). The plaintiff is bound to adduce evidence and to make out a prima facie case. Reference may be made to Order 29 Rule 4 of the Code which provides that the judgments of the courts other than Small Causes shall contain a concise statement of the case, the points for determination, the decision thereupon and the reasons for such decision. But these provisions do not necessarily imply that even if his defence against delivery of possession is struck out. the defendant tenant would be entitled to contest the suit and thereby to establish his claim for protection against eviction.

Another legal concept also has been firmly established. The questions of validity of notice of suit under S. 13 (6) of the West Bengal Premises Tenancy Act, 1956 and its service upon the defendant are not part of the tenant''s "defence against delivery of possession" which are liable to he struck out under S. 17(3) of the said Act of 1956. Therefore, even after his defence is struck out the tenant is entitled to defend the suit on the ground of invalidity of the notice of suit referred to in S. 13(6) of the said Act (vide Renupade Mukherjee, J.''s decision in Ajit Kumar Sen vs. Baijnath Somani 65 CWN 1110 the decision of P. N. Mookerjee and D. Basu, JJ., in Subodh Chandra Singha Vs. Santosh Kumar Srimani, the decision of R.N. Dutt and N. C. Talukdar, JJ., in Jewell Filter Company Limited Vs. The State of West Bengal and Others, ) and the Full Bench decision in Gurudas Bisvas v. Sibsankar Seal & ors. 1975 (1) CLJ 1 (the same case is also reported is Gurudas Biswas Vs. Charu Panna Seal and Others, ).

The learned Judges who decided the above three cases viz., Ajit Kumar Sen v. Baijnath Somani (supra), Subodh Chandra Singha v. Santosh Kumar Srimani (supra) and Basudeb Ganeriwala v. Canton Carnentry Works Pvt. Ltd. (supra) did not deviate from the view take by the reported decisions regarding the effect of striking out defence under S. 14(4) of the Rent Control Act of 1950. These reported decisions on S. 17(3) of the West Bengal Premises Tenancy Act. 1956 were uniformly of the view that after his defence under S. 17(3) of the said Act is struck out the tenant "shall not be permitted to press his defence against delivery of possession" (vide the decision of Renupade Mukherjee, J. in Ajit Kumar Sen v. Baijnath Somani (supra) P. N. Mookherjee and D. Basu JJ, in Subodh Chandra Singh v. Santosh Kumar Srimani (supra) no doubt did not decide whether the entire defence under the general law or only special defences under the particular Rent Control Legislation is struck out by an order under S. 17(3), but clearly held "The only effect of striking out his defence would be that the tenant whose defence has been struck out would be placed merely in the position of one who has not defended the suit and the suit would proceed ex parte". The learned Judges laid down that after his defence is struck out. the defendant has a right to contest by cross-examining the plaintiff''s witnesses and to examine his own witnesses on points outside the scope of S. 13 (1) of the Act. The petitioner''s prayer in the instant case for permission to cross-examine the plaintiff''s witnesses on all points has therefore been rightly rejected. It is not very relevant whether or not R N. Dutt, J., who delivered the said Division Bench decision in the case of Ganeriwala (supra), had correctly set out the ratio of the decision of P. B. Mukharji, J. in Deo Chand Singh''s case (supra) because a Division Bench in Ganesh Chandra Nandu v. M/s. J. N. Chatterjee & Bros 70 CWN 676 had over-ruled the decision of P. B. Mukherji, J. in Deo Chand Singh''s case (supra), so far as he held that S. 114 of Transfer of Property Act would also apply in case a tenancy was determined not by forfeiture under S. 111(g) but by service of a notice to quit under S. 111(h) read with S. 106 of the Transfer of Property Act. The observations of P. B. Mukharji, J. about the defendant''s right to cross-examine the plaintiff''s witnesses even after his defence is struck out appear to be obiter because the said observations were not necessary for deciding the point raised before the learned Judge as to whether the defendant petitioner was entitled to relief under S. 114 of the. Transfer of Property Act.

In the case of Gurudas Biswas v. Charu Panna Seal (F. A. 242 of 1960) the defence of the defendant tenant had been struck out by the trial court under S. 17 (3) of the West Bengal Premises Tenancy Act, 1956. The defendant had thereafter retired from the suit and the trial court had passed an ex parte ejectment decree. When F. A. 242 of 1960 preferred by the defendant-tenant, came up for hearing before D. N. Sinha, C. J., and Arun Kumar Mukherjee, J., the learned advocate appearing on behalf of the defendant appellant had submitted that notwithstanding that this his client did not appear at the hearing before the trial court he was entitled to urge in appeal the points of alleged defect in the notice of suit. Reliance was placed upon the decision in Ajit Kumar Sen v. Baijnath Somani (supra). The attention of the Division Bench was drawn to the decision of P. N. Mookherjee and D. Basu, JJ. in Subodh Chandra Singha v. Santosh Kumar Srimani (supra). D. N. Sinha C. J. and Arun Kumar Mukherjee, J. were unable to agree with the Division Bench decision in Subodh Chandra Singha v. Santosh Kumar Srimani (supra) so far as the said previous decision had held that point of invalidity of the notice of suit under S. 13 (6) of the Premises Tenancy Act. 1956 was not a part of the defence against delivery of possession and the S. 13(6) of the Rent Control Act. 1950 imposed a bar upon the jurisdiction of the Court. According to P. N. Sinha, C.J., and Arun Kumar Mukherjee. J. the legal position pointed out by Chakravartti, C. J: and D. N. Sinha. J. (as he then was) in the case of D. G. Gellatly v.G.R.W. Ganon (supra), also existed under the West. Bengal Premises Tenancy Act, 1956. If the tenant did. not pay or deposit in terms of S. 17 (1). then his entire defence against delivery of possession both under sub-ss. (1) and (6) of S. 13 of the Act of 1956 was to be struck out. Thus, it may he noticed that there was no difference of opinion on the question whether as a result of striking out the defence under S. 17 (3) of the Premises Tenancy Act, 1936, the tenant''s entire defence against delivery of possession shall be struck out and that he could no longer contest or defend the grounds urged by the plaintiff landlord for recovery of possession, D. N. Sinha, C. J., and Arun Kumar Mukherjee, J. made the aforesaid Pull Bench Reference because they dissented from the views of P. N. Mookerjee, and D. Basu, JJ, that the requirement of notice under S. 13(6) of the West Bengal Premises Tenancy Act, 1956 was not a part of the tenant''s defence against, delivery of possession and that S. 13(6) of the Premises Tenancy Act. 1956 imposed a bar upon the jurisdiction of the court. The referring Judges also did not agree that in spite of his defence having been struck out a defendant could urge for the first time in appeal the said question regarding the notice under S. 13 (6) of the Act of 1956.

The Full Bench in Gurudas Biswas v. Charu Panna Seal (supra) held that the case of Subodh Chandra Singha v. Santosh Kumar Srimani (supra). had been rightly decided on both the Points of Reference. The Full Bench also approved the statements of law made by Renupada Mukherjee, J. in the case of Ajit Kumar Sen v. Baijnath Somani (supra). by P. N. Mookerjee and D. Basu, JJ. in Subodh Chandra Singha v. Santosh Kumar Srimani (supra). by R. N. Dutt and N. C. Talukdar, JJ., in Basudeb Generiwala v. M/s. Canton Carpentry Works Pvt. Ltd. (supra).

The observations in paragraph 27 of the judgment of A. K. De, J. in Full Bench case of Gurudas Biswas v. Charu Panna Seal (supra) were part of the answer by the Full Bench to the second points of reference. A. K. De, J. in the said passage had set out the points which the court is required to decide even after a suit for ejectment under S. 13(1) of the Act of 1956 becomes ex parte : (a) whether the tenancy had been validly determined (b) whether a notice of suit had been given and (c) whether the ground alleged in +he plaint to take away the tenant''s special protection conferred by S. 13(1) had been established on evidence. The learned Judge had also referred to the requirements of Order 20 Rule 4 of the Code and had proceeded to observe "that being the position in law, 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 both at the trial and also at the appellate stage, that the plaintiff 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 tall his own witnesses at the trial if his defence is struck out."

M. M. Dutt and R. K. Sharma. JJ. in Dayamayee Sadhukhan v. Dal Sinyr Singh (supra), have inter alia, held that "in a case where the defence of the defendant is struck out under the provisions of S. 17(3) of the West Bengal Premises Tenancy Act, 1956, the defendant will be still entitled to cross-examine the plaintiff''s witnesses on all points."

I regret that I am unable to agree with the above proposition. M. M. Dutt, J. was himself a member of the Full Bench which had decided the case of Gurudas Biswas v. Charu Panne Seal (supra). The said Full Bench had approved the statements of law made by P. N. Mookherjee and D. Basu, JJ., in Subodh Chandra Singha v. Santosh Kumar Srimani (supra). Renupada Mukherjee J. in Ajit Kumar Sen v. Baijnath Somani (supra). and R. N. Dutt and N. C. Talukdar, JJ., in Basudeb Ganeriwala v. M/s. Canton Carpentry Works (supra),. I have already pointed out that the ratio of these decisions is that after his defence is struck out under S. 17(3) of the Act of 1956. the tenant cannot, contest the plaintiff-landlord''s prayer for delivery of possession, but he can only contest the issue regarding the notice under S. 13(6) of the Act because such a notice is not a part of the defence of the tenant. These reported decisions on S. 17(3) of the West Bengal Premises Tenancy Act, 1956 have held that except on the question of notice of suit under S. 13(6) of the said Act. the tenant''s right to defend is affected in the same manner under S. 14(4) of the earlier Act and under S. 17(3) of the subsequent Act

The Division Bench in Dayamoyee Sadhukan v. Dal Singer Singh (supra), did not even refer to the other repeated decisions on S. 14(4) of the Rent Control Act, 1950 and on S. 17(3) of the Premises Tenancy Act. 1956 and had apparently treated as point of first impression, the question whether after his defence is struck out, a tenant can cross-examine the plaintiff''s witnesses on all points. The three reported decisions of the Supreme Court, in my view, do not also justify the conclusion reached in Dayamayee Sadhukhan v. Dal Sinner Singh (supra), which is contrary to the law settled by several reported decisions of this Court.

It would not be correct to equate the position of a defendant whose defence has been struck out under S. 17(3) of the West Bengal Premises Tenancy Act. 1956 with the position of a defendant who does not appear inspite of duo service of summons and against whom a suit is heard ex parte under Order 9. Rule 6(a) of the Code. I have already mentioned that S. 17(2) of the Premises Tenancy Act. 1956 affects the substantive right of the defendant to contest or defend a suit for recovery of possession and said provision is not merely procedural in nature. I have already pointed out that in case the defendants does not discharge his said liabilities in terms of sub-ss. (1). (2) and (2A) of S. 17 as the case might be. the court imposes penalty by striking out his. defence. But the Supreme Court Sangram. Singh v. The Election Tribunal (supra). Clearly laid down that under the CPC there is no penalty for a refusal or omission on the part of the defendant to appear in response to summons under S. 27 of the Code (vide page 430 of the reports). Upon examination of the different Rules of Order 9 of the Code. Bose, J. in Sangram Singh v. The Election Tribunal (supra), at page 432 observed that if a party does not appear on the date on which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings on the next adjourned date of hearing. Unless he can show good cause, the defendant, however, must accept all that has gone before and he must be content to proceed from the stage from which he comes in. In Sangram Singh v. The Election Tribunal (supra,) the defendant had filed his written statement but on a particular date did not appear. The Election Tribunal had proceeded ex parte. On a subsequent date when the appellant''s counsel had appeared, the Tribunal did no allow his laywer to take part in the proceedings. His application subsequently made for setting aside ex parte proceedings was also rejected. In Sangram Singh v. The Election Tribunal (supra), the Court had no occasion to decide whether a defendant whose written statement had been struck out by a penal order could still cross-examine the witnesses produced by the other party. On the other hand Bose, J. in paragraphs 32 and 33 of his judgment of Sanqram Singh v. The Election Tribunal (supra). had observed that if the defendant did not present a written statement of his defence the Court could insist that he shall, if on being required to do so he failed to comply, the Court might under Order 8 Rule 10 of the Code (as it stood then) pronounce judgment against him or make such order in relation to the suit as it thought fit. Bose, J. further observed that if the defendant did not appear at the first hearing the Court could proceed ex parte which meant that it can proceed without a written statement and. Order 9 Rule 7 made It clear that unless good cause was shown, the defendant could be relegated to the position that he would have occupied if he had appeared. That meant that he could put in a written statement unless he is allowed to do so and if the case is one in which the court considers a written statement should have been put in the consequences entailed by Order 9 Rule 10 must be suffered. Rules 1, 5 and 10 of Order 8 of the Code, have been since amended by CPC (Amendment) Act, 1970. It is now obligatory for the defendant to file a written statement and in case he does not do so, it would be lawful to pronounce judgment on the basis of the facts contained in the plaint.

M. M. Dutt and R. K. Sharma, JJ., in Dayamoyee Sadhukhan v. Dal Singer Singh (supra), themselves recognised that the Supreme Court in Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, . did not finally decide the question whether a defendant whose written statement has been truck out under Order 9 Rule 21 of the Code has any right to cross-examine the plaintiff''s witnesses. The said decision In M/s Babbar Sewing Machine Co. v. Triloknath Mahajan (supra), is not an authority for the proposition that even if his defence is struck out and he is placed in the same position as if he has not defended the defendant can still cross-examine the plaintiff''s witness on all points. Order 11 Rule 21 of the Code deals with non-compliance with an order for answering interrogation or for discovery or inspection of documents whereas S. 17(3) of the West Bengal Premises Tenancy Act, 1956 deprives the substantive right of a tenant to defend m to obtain protection against eviction. I have also not come across any other reported decision which has directly considered the question whether after his defence is struck out under Order 11 Rule 21 of the Code, a defendant could still cross-examine the plaintiff''s witnesses on all points. Harris. C. J. and Banerjee, J. in Mohindra Prasad Vs. Poddar Brothers Ltd., held that when defence under Order 11 Rule 21 of the Cede is struck out, the Master under the Original Side Rules, has power to transfer the suit in the list of undefended suits. We have already mentioned that under Rule 3, Ch. XIV of the Original Side Rules, when a suit is heard ex parte against any defendant, such defendant has not an unfettered right to cross-examine. In the first place, the court may allow him to cross-examine in person the plaintiff''s witnesses and to address the court. Unless the court otherwise specially orders evidence will not be received on his behalf nor will he be allowed the assistance of an advocate or attorney.

The decision of the Supreme Court in Paradise Industrial Corpn. Vs. Kiln Plastics Products, is also not relevant for deciding the question whether even after his defence is struck out under S. 17(3) of the West Bengal Premises Tenancy Act, the defendant could cross-examine the plaintiff''s witnesses on all points. The Supreme Court In M/s. Paradise Industrial Corporation v. M/s. Kiln Plastics Products (supra), had set aside a judgment of the Bombay High Court in its re-visional jurisdiction setting aside an ejectment decree and dismissing the suit itself. A Judge of the Small Cause Court before whom the ejectment suit had been filed had made an order requiring the defendant to pay arrears rent and also interim standard rent in default of which the plaintiffs were given liberty to follow the consequential remedy under S. 11(4) of the Bombay, Rents, Hotel and Lodging House Rates Control Act (1947). The defendant did not deposit the amount in question. The plaintiffs had then prayed to the court for a notice to the defendant to show cause why they should not deposit the aggregate amount of rent in default of deposit the defences of the defendant may be ordered to be struck off. The court had issued a notice and thereafter passed a further order requiring the defendant to deposit Rs. 14507/- within one month and also Rs. 308/- per month. It was further ordered that in default of the deposit the defences of the defendant were to be struck off and the suit should be placed for ex parte order. The defendants failed to deposit and the suit came up for orders. The defendants were also absent on that date and again on adjourned dates. Ultimately on 5th August an ex parte decree for possession for recovery of arrears of rent and costs were passed. Thereafter, the defendant appeared and made an application stating that on proper calculation amount of arrears rent came to Rs. 7065/-and on their prayer the defendants were allowed to deposit the amount without prejudice and notice was ordered to be issued to the plaintiffs. The defendants did not take steps by service of notice on the plaintiff and the notice was ultimately discharged for want of prosecution. The Appellate Bench of the Small Causes Court dismissed the appeal preferred against the ex parte decree. The High Court, as already stated, had allowed the re-visional application of the defendant solely on the ground that the learned Judge of the Small Causes Court in his aforesaid orders had used the words "defences to be struck off" and did not use the words "he shall not be entitled to appear in or defend suit except with the leave of the court which leave may be granted subject to such terms......" appearing in S. 11 of the Bombay Rent Control Act, 1947. Alagiriswami, J. who delivered the judgment of the Supreme Court in M/s Paradise Industrial Corporation v. M/s Kiln Plastics Products Ltd. (supra), did not really decide what would be the precise legal position of a defendant whose defence is struck off or struck out and his observations at page 312 appeared to be tentative in nature. Because in one part of his judgment the learned Judge had observed-"In fact both mean the same thing" and thereafter again observed "Indeed one may even say that the phrase ''defence to be struck off or ''struck out'' is more advantageous from the point of view of the defendants. Even when a defence is struck off, the defendant is entitled to appear, cross-examine the plaintiff''s witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him whereas it is ordered in accordance with S. 11 (4) that he shall not be entitled to appear in or defend the suit except with the leave of the court, he is placed at a greater disadvantage". The learned Judge in M/s. Paradise Industrial Corporation v. Kiln Plastics Products (supra) proceeded to point out that in the said case the order passed by the learned trial judge was not without jurisdiction and in fact no order for striking off the defence had been passed. But the defendant did not appear and, therefore, the suit was heard ex parte. They did not apply for setting aside the ex parte decree but went up in appeal.

It would not be proper to interpret S. 17(3) of the West Bengal Premises Tenancy Act, 1956 in the light of reported decisions on the provisions content in the other Rent Control Legislation for striking out the tenant''s defence or affecting in some manner his right to contest an ejectment suit. In the first place, the wordings of these sections are not identical with those of S. 17(3) of the West Bengal Premises Tenancy Act, 1956. Secondly, it appears that the Supreme Court has not taken an uniform view regarding these provisions in different Rent Control Acts. The Supreme Court in Smt. Bela Das and Others Vs. Samarendra Nath Bose, , approved the Patna High Court Full Bench decision in Mahabir Ram v. Shiva Sankar Prasad AIR 1968 Patna 415 and laid down "... the order of striking out defence had the effect of striking all defence raised by the defendant tenant

In Sh. Hem Chand v. The Delhi Cloth & General Mills Co. Ltd 1977 SC 1986 (at pages 1989-90) with reference to sub-ss. (1) and (7) of S. 15 of the Delhi Rent Control Act, 1958, had inter alia observed that if the defence is struck out, the Rent Controller will proceed with the hearing of the application of the landlord and if the landlord makes out a case allow his application for recovery of possession. Further at page 1938 it was observed that the said application (for eviction) will have to be heard, without hearing the tenant as if his defence is struck out.

I may refer to the two Single Bench decisions on the point. The view of S. K. Dutta, J. in Maharam Ali Vs. Dinanath Prasad Sha, , about the defendant''s right to cross-examine the plaintiff''s witnesses relating to the ground of ejectment under S. 13(1) of the West Bengal Premises Tenancy Act, 1956 were contrary to the Division Bench decision in Basudeb Ganeriwara v. M/s Canton Carpentry Works (supra), to which S. K. Dutta, J. himself referred in his decision, I am also unable to agree with the said view of S. K. Dutta, J. about the extent of the defendant''s right to cross-examine the plaintiff''s witnesses A. P. Bhattacharya, J. in N.C. Moitra Vs. Bhupendra Kumar Chatterjee, , correctly held that after his defence is struck out under S. 17(3) of the Act of 1956, the defendant is not entitled to cross -examine the plaintiff''s witnesses or examine his own witnesses on any point other than that of notice of suit.

The Special Bench in the case of Sudhir Chandra Ghosh v. Sachindra Nath Ghosh 86 CWN 634, was constituted for considering the following two points: (1) whether the amount of arrears to be deposited under sub-ss. (1) and (2) of S. 17 of the West Bengal Premises Tenancy Act, 1955 includes arrears of rent which may have become barred by limitation, and (2) whether the decision in Raghunath Singh v. Patel and & Co. 65 CWN 1093 had been over-ruled by the Supreme Court decision in Khadi Gramyoudog Trusts v. Ramchandra AIR 1972 SC 287. All the three Judges who constituted the Special Bench were unanimous that the case reported in Raghunath Singh v. Patel & Co. (Supra), was wrongly decided and they had approved that view taken by the Division Bench in the case of Central Coalfield Ltd. v. Rabindranath Dutta 1980(1) CLJ 80. While P. K. Banerjee and B. N. Maitra, JJ. were of the opinion that the said decision in Raghunath Singh v. Patel & Co. (supra), has been over-ruled by implication by the Supreme Court decision in Khadi Gram-youdog Trust v. Ramchandra (supra), Amitabha Dutta, J. disagreed and according to him, the case reported in Raghunath Singh v. Patel & Co. (supra), had not been impliedly over-ruled but the said decision was not correct. The extent of the right of cross-examination by a defendant whose defence had been already struck out was not within the scope of the reference of the Special Bench case in Sudhir Chandra Ghosh v. Sachindra Nath Ghosh (supra), Secondly the observation made on the point in paragraph 40 of the judgment of Amitabha Dutta, J. did not necessarily represent also the views of two other learned Judges who constituted the Special Bench. Amitabha Dutta, J. in the said paragraph 40 did not refer to other reported decisions and also to the observations to the contrary in the judgment of A. K. De, J. in the Special Bench case of Gurudas Biswas v. Charu Parma Seal (supra). Presumably, Amitabha Dufta, J. hnd referred to the decision in Dayamoyee Sadhukhan v. Dal Singer Singh (supra), only in support of his view that the tenant is bound to deposit time-barred amount because the determination under S. 17(2) is made at the instance of the tenant seeking protection in terms of S. 17 and not on the application of the landlord. Therefore, the observations of Amitabha Dutta, J. in Sudhir Chandra Ghosh v. Sachindra Nath Ghosh (supra), about the right of cross-examination of the plaintiff''s witnesses on all points by the defendant even after his defence is struck out, to be mere obiter dicta.

In my view, the expression "defence" in S. 17(3) of the West Bengal Premises Tenancy Act, 1956 means the entire defence against delivery of possession and not merely the defendant''s pleading, i.e., his written statement. I have already observed that the legislature must be deemed to be aware of the judicial interpretation of the word "defence" in S. 14(4) of the Rent Control Act of 1950 but retained the same words in S. 17(3) of the Premises Tenancy Act of 1956. The expression "defence" in S. 17(3) of the West Bengal Premises Tenancy Act, 1956, according to the two Division Bench and one Full Bench decision of this Court, has the same meaning. Although from time to time different provisions of the Premises Tenancy Act, 1956 were amended, the words "defence against delivery of possession" have not been altered.

In order to obtain recovery of possession of premises to which the Premises Tenancy Act, 1956 applies the landlord must affirmatively prove any or more of the grounds referred to in S. 13(1) of the said Act. The sub-s. (1) of S. 13 of the West Bengal Premises Tenancy Act, 1956 restricts the right of the landlord to obtain any order or decree for recovery of any premises except on one or more of the grounds to which the said Act applies in clauses (a) to (k) of S. 13(1). The said sub-s. (1) of S. 13 grants protection to tenants against eviction except on any of the said grounds in S. 13(1) of the Act of 1S56 against the landlord''s claim for recovery of possession. i.e. delivery of possession. This right of the tenants to claim such protection against eviction is not an unqualified one. The very Act (i.e. West Bengal Premises Tenancy Act, 1955) which has conferred such special light of protection to tenants has imposed liability upon them to pay or deposit arrear and current rents in accordance with sub-ss. (1), (2) or (2A) as the case might be of S. 17 of the said Act of 1956. Only when the tenant complies the said provisions of sub-ss. (1) (2) or (2A) of S. 17 of the Act, he would be eligible to claim right to defend and to obtain protection against eviction. When he does not comply with sub-ss. (1), (2) or (2A) OF S. 17, as the case may be, a tenant is deprived from defending the landlords claim for delivery of possesion of the premises. The legislature in S. 17(3) of the Act of 1956 have used the expression ''shall proceed with the hearing or the suit" obviously to mean that "although the defendant can no longer contest the grounds on which the plaintiff landlord prays for recovery of possession of the suit premise the plaintiff must prove his case and the court would satisfy itself about the existence of the grounds for ejecting the tenant. At the said hearing the defendant, however, can contest only on grounds which do not constitute his "defence against delivery of possession" i.e. regarding notice under S. 13(6) of the Premises Tenancy Act Considered from another standpoint, the said grounds referred to in S. 13 (1) of the Premises Tenancy Act, 1956 constitute the tenant''s defence against landlord''s prayer for delivery cf possession, the landlord''s suit for his ejectment by contravention of the plaintiff''s evidence and by adducing evidence that grounds for his eviction do not exist.

Even assuming that when an order under S. 17(3) of the Premises Tenancy Act, 1956 is passed, only the defendant''s pleading is struck out, there could be hardly any scope thereafter for the defendant to cross-examine the plaintiff''s witnesses regarding the grounds for his ejectment. I have already referred to the amendment made by the CPC (Amendment) Act, 1976 inter aha to Rules, 1,5 and 10 of Order 8 of the Code. The Order 8 Rule 1 of the Code now enacts that the defendant shall file his written statement. Secondly, after amendment of Rule 5 of Order 8 of the Code, when the defendant does not file his written statement the facts alleged in the plaint shall be deemed to have been not denied and the court in its discretion can take them to be admitted. "Issues" according to Order 14 Rule 1 of the Code arise when a material proposition of fact or law is affirmed by one party and denied by the other. According to Rule 1 (2) of Order 14 of the Code, in case of a defendant material propositions are those which the defendant must allege in order to cons*itu,e his defence therefore when the defendant has not filed any written statement or the same has been struck out, in the eye of law he has not asserted propositions which constitute his defence. When the defendant does not file any written statement, the provisions of sub-rules (1) to (5) of Rule 1 of Order 14 of the Code does not apply. Both examination and cross-examination of witnesses, according to S. 138 of the Evidence Act must relate to relevant facts, but cross-examination need not be confined to facts, to which the witness testifies in his examination-in-chief. I fail to see how the defendant tenant could still be allowed to cross-examine the plaintiff''s witnesses with reference to their statements about existence of the grounds of ejectment made in their examination-in-chief. After the defendant''s statement of defence is struck out the defendant could no longer be considered to have denied the facts testified by the plaintiff''s witnesses. After his written statement is struck out, the defendant in the eye of law makes no defence and he does not deny the material propositions of fact and law affirmed by the plaintiff (vide Order 14 Rule 1 of the Code). Thus, such a defendant tenant would be unable to raise himself issues regarding the grounds asserted by the plaintiff for ejecting him. The Judicial Committee of the Privy Council in AIR 1930 57 (Privy Council) had observed "no amount of evidence can be looked into upon a plea which was never put forward" (See also the Supreme Court decision in Nagubai Ammal and Others Vs. B. Shama Rao and Others, , which pointed out the true scope of this Rule).

I do not find and substance in the contention that a defendant whose defence is struck out under S. 17(3) of the Premises Tenancy Act, 1956 has a limited right of cross-examination to demolish the plaintiffs evidence'' about the grounds of ejectment. "The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with object either to obtain from such witness admissions favourable to his cause or to discredit him" ( vide remarks of Norman, J. in Meer Sujad Ali v. Kashee Nath 6 WR 181, quoted by Sarkar on Evidence, 12th Edn. at page 1277). Once right to cross-examine on behalf of a defendant whose defence has been already struck out is admitted it would be difficult to differentiate between the questions which may be put to weaken or destroy the case of the plaintiff from these questions which may be asked by way of establishing the defendant''s own case by means of his opponent''s witnesses. Thus, in course of cross-examination of the plaintiffs witnesses the defendant is very likely to put question to the plaintiffs witnesses in order to establish his defence against delivery of possession. Once such a limited right of cross-examination is conceded, it would introduce an amount of uncertainty about the admissibility or otherwise of the questions put to plaintiff''s witnesses in course of their cross-examination. We may remind ourselves that this right of cross-examination of a defendant tenant ought to be considered not only in respect of an ejectment suit heard in the Ordinary Original Jurisdiction of this Court but also by the subordinate courts. Therefore, in view of likely dispute about the admissibility and the propriety of question asked in cross-examination of the plaintiff''s witnesses, various applications would arise and there would be also inordinate delay in deciding the ejectment cases.

We may mention that the Division Bench in Dayamoyee Sadhukhan v. Dal Singer Singh (supra), had set aside the judgment and decree of the trial court dismissing the plaintiffs suit because in the opinion of the Division Bench after the defence of the defendant had been struck out, it was not permissible for the trial court to spell out the defence case from suggestions made on his behalf during cross-examination of the plaintiff''s witnesses. The learned Judges of the Division Bench held that It was a well-established principle of law that suggestions unless admitted are not evidence and cannot be relied on. In my view, in case after his defence is struck out, the defendant tenant is still allowed to cross-examine the plaintiff''s witnesses, same would be in effect allowing him to assert his defence against delivery of possession. I have already pointed out that the grounds referred to in sub-section (1) of section 13 of the West Bengal Premises Tenancy Act, 1956 looked at from one stand-point set out the grounds on which the landlord may recover possession of a premises which is subject to the provisions of the said Act. From another stand-point the sub-section (1) of section 13 are for protection of tenants inasmuch as except on the grounds referred to in the said sub-section, the tenants are not liable to be evicted and to deliver possession of the premises in their possession Therefore, in ejectment suit, the cross examination of the plaintiffs witnesses on behalf of the defendants would be for impeaching the plaintiff''s oral evidence regarding the grounds for recovering possession and the service of the notice of suit. In case the defendant successfully demolishes by cross-examining the plaintiff''s witnesses, the court may find that the plaintiff landlord has not made out grounds for recovering possession of the suit premises and that the defendant tenant was still entitled to enjoy protection against eviction. This would be plainly inconsistent with the court''s order striking out the defence of the defendant against delivery of possession.

The learned advocate for the defendant tenant did not seriously urge that after his defence is struck out under S. 17(3), the defendant would be still entitled to adduce evidence. The Division Bench in Dayamoyee Sadhukhan v. Dal Singer Singh (supra), while recognising the right of cross-examination has practically ruled out the admissibility of questions by way of suggestions to plaintiff''s witnesses in course of their cross-examination. Therefore, in case while cross-examining the plaintiff''s witnesses the defendant fails to elicit any admission from the plaintiff''s witnesses, he would have no chance to impeach the accuracy and credibility of the plaintiff''s witnesses by adducing the substantive evidence. This would lead to a very incongruous position in law. In my view, to recognise the right to cross-examine by a tenant whose defence had been already struck out would be in effect to permit him to assert his defence against delivery of possession and without written statement contest the plaintiff''s prayer for delivery of possession, i. e. recovery of possession of the premises. Therefore, the very object of enacting S. 17(3) of the West Bengal Premises Tenancy Act, 1956 would be defeated. Without complying with the provisions of sub-ss. (1), (2), (2A) of S. 17 of the Act, a tenant would be permitted to claim protection against eviction. For the foregoing reasons, I conclude that the expression "defence against delivery of possession'' in S. 17(3) of the Act of 1956 does not mean only the written statement of the defendant tenant in a suit for recovery of possession on any of the grounds set out in sub-section (1) of S. 13 of the West Bengal Premises Tenancy Act. When his defence is struck out he is no longer entitled to establish his claim for benefit of protection against eviction, i. e., landlord''s claim for delivery of the premises in question. After his defence is struck out under S. 17(3) of the Premises Tenancy Act, 1956, the defendant cannot contest the plaintiff''s prayer for recovery of possession on any of the grounds mentioned in S. 13(1) of the Act and, therefore, he cannot cross-examine the plaintiff''s witnesses on the question of the existence of the grounds on which the plaintiff seeks recovery of possession. The defendant tenant may, however, cross-examine the plaintiff''s witnesses on points which do not relate to his defence against delivery of possession a defendant can also adduce evidence on the said points. Even if, the defence of the defendant had been struck out, the plaintiff landlord must prove his case and the court can not make any order or decree for recovery of possession except on one or more of the grounds set out in clauses (a) to (k) of sub-s. (1) of S. 13 of the West Bengal Premises Tenancy Act, 1956. Therefore, the answer to the reference ought to be that after his defence was struck out under S. 17(3) of the Premises Tenancy Act, 1956, the defendant tenant has no longer any right to cross-examine the plaintiff''s witnesses on all points. Decision to the contrary by the Division Bench in Dayamoyee Sadhukhan v. Dal Singer Singh (supra), is not correct. The case be now placed before the learned Single Judge for deciding the suit in accordance with law. There will be no order as to costs.