Rameswar Kumar vs Biseswar Lall

S.M. Guha, J.—A very short point which calls for decision in this Rule is whether a tenant whose defence against ejectment has been struck out is entitled to dispute the service and validity of the notice of suit u/s 13(6) of the West Bengal Premises Tenancy Act by way of cross-examining the plaintiff landlord''s witnesses or by citing witnesses on his behalf. By the impugned order dated 6.9.79 Shri C. Biswash, learned Additional Munsif Asansol, in title suit no. 125 of 1977 permitted the defendant to adduce evidence on his behalf by way of denial of notice. Mr J. M. De the learned Advocate for the landlord petitioner challenges the order and contends that a tenant whose defence is struck out cannot be permitted to challenge the service and validity of the notice by way of adducing evidence. Mr. De in support of his contention cites the decision in the case of S.B. Trading Co., Ltd., Vs. Olympia Trading Corpn. Ltd. and Another, . This was a case under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act. 1950, The defence against ejectment was struck out u/s 14(4) of the Act. It is held therein that in such a case the defendants will not be entitled to cross-examine the plaintiff''s witnesses on their evidence as to the facts establishing the claim to ejectment and address the court with regard to that claim. This case is not an authority as to the point of service and validity of the notice to quit. Next reference is made to a Bench decision of this Court in the case of D.R. Gellatly Vs. J.R.W. Cannon, . This is also a case under the Act of 1950. In this case it is also held that once defence against ejectment is struck out on the ground mentioned in section 12(1) of the Act but other defences against ejectment as well. Next reference is made to the decision in the case of Satya Narain Vs. Naraindas Dhanuka and Others, . It is held therein that there is no scope for application under Order 9, Rule 13 C. P. C. in a case wherein the defence against ejectment of the tenant has bean struck out. Next my attention is drawn to the Supreme Court decision in the case of Sm Bela Das & Ors. vs. Samarendra Nath Bose, reported in AIR 1978 SC 398. It is held therein that if the landlord tenant relationship exists, on defence being struck out all defences qua tenant stand struck out. The Full Bench decision of the Patna High Court in the case of Mahabir Ram vs. Shiva Shankar Prosad and others, reported in AIR 1968 Pat. 415 is also referred to. ft is held therein that when the defence quo tenant struck out it means that he cannot set up any defence with regard to the said notice u/s 106 of the Transfer of Property Act by cross-examining the witnesses of the landlord. He also cannot adduce his own evidence on the point of non-service of the notice or its invalidity. Last of all reliance is placed on the Full Bench decision of this Court in the case of Gurudas Biswas Vs. Charu Panna Seal and Others, . Two points came up for consideration before the Full Bench :- (1) Whether a defendant whose defence against delivery of possession has been struck out u/s 17 (3) can take the defence of non-existence or invalidity of a notice u/s 13(6) either in the court below or in the court of appeal and (2) whether a defendant who has not appeared in the court below should be permitted to take the defence as to nonexistence or invalidity of notice for the first time in appeal. It is held that where in a suit for ejectment even if defence as to delivery of possession has. been struck out u/s 17(3) the defendant can take the defence of the non-existence or invalidity of the notice u/s 13(6) in the court below and in the court of appeal. The full Court also lays down : "It would be wrong not to permit the tenant to contend and show, if possible, on plaintiff''s evidence and materials as are on record", that the 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 call his own witnesses at the trial, if his defence is struck out. On the babis of this Full Bench decision it is argued by Mr. De that the learned Munsif fell into an error in permitting the opposite party to call his own witness to challenge the notice of suit.

Mr. Satya Narayan Roy the learned Advocate for the opposite party relies on a Single Bench decision in the case of N.C. Moitra Vs. Bhupendra Kumar Chatterjee, . It is held therein that a tenant whose defence has been struck out is still permitted to contend : before the Court and take the defence on '' point of non-service or invalidity of the notice and in doing so the tenant defendant is also permitted to cross-examine plaintiff''s witnesses and challenge other evidence adduced by the plaintiff as to the non-service or invalidity of the notice. Justice A. P. Bhattacharya, in this case observes that defence in any event cannot even examine a witness denying the service of notice or denying facts on the point of invalidity of the notice. As to the Fuli Bench dicision referred to above it is observed by His Lordship that observation which has been made in the Full Bench decision was a passing observation and was not a conclusive finding. Next reference is made by Mr. Roy to a Bench decision of this Court in the case of Sm. Daya Moyee Sadhukhan Vs. Dal Singer Singh, . Mr. Justice M. M. Dutt, who spoke for the Bench was a member constituting the Full Bench. In this case it is held that the last portion of the observation by the Full Bench in the case of Gurudas Biswas (Supra) was obiter and held that even after the defence being struck out the defendant is entitled to cross examine the plaintiff''s witnesses on all points and also be entitled to adduce evidence in support of their defence. It appears that Their Lordship differed from the single Bench decision ot Mr. Justice Bhatta-charya in the case reported in N.C. Moitra Vs. Bhupendra Kumar Chatterjee, . In short, it is the decision of the Division Bench of this Court that a tenant whose defence has been struck out would be entitled not only to cross-examine the landlord''s witnesses but also to adduce his own evidence challenging the service and validity of the notice of suit. Mr. Roy also relies on the decision of the Supreme Court in the case of Paradise Industrial Corpn. Vs. Kiln Plastics Products, . corresponding to 1976(1) SCC 91. Herein it is observed by the Supreme Court that even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff''s witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him.

It appears that that the decision in this case was placed before Their Lordships of the Division Bench in the case of Daya-moyee Sadhukhan (Supra).

Another Division Bench of this Court in the case of Basudeo Ganeriwala and others vs. Mjs. Canton Carpentry Works Pvt. Ltd. & others, reported in 73 CWN 365 also held that a tenant whose defence has been struck out has still the right to contest the suit and as part of this right he has the right not only to cross-examine the plaintiff''s witnesses but also to the examine his own witnesses on points outside the scope of section 13(1) of the Act. Last of all reliance is placed on the decision of Justice Salil Kumar Dutta, in the case of Maharam Ali Vs. Dinanath Prasad Sha, . His Lordship held that while challenging the notice the tenant whose defence has been struck out would be entitled to cross-examine the landlord''s witnesses but according to His lordship the tenant would not be permitted to adduce evidence in support of his own case. In a suit for ejectment the basis for action is the service of notice of suit u/s 13(6) of the Act. A decree cannot be passed in favour of the landlord unless it is proved that notice of the suit had been served on the tenant and the said notice is valid and sufficient. In the absence of such proof there cannot be even an ex parte decree. So, if the defence of a tenant against ejectment is struck out for noncompliance of the provisions undef the West Bengal Premises Tenancy Act such a tenant cannot be debarred from disputing the notice of suit and questioning the validity of the same. In vrew of the decisions referred to above subsequent to the Full Bench decision of this Court reported in Gurudas Biswas Vs. Charu Panna Seal and Others, . I am of the view that the learned Munsif was justified in permitting the tenant-opposite party to cross-examine the witnesses examined on behalf of the landlord petitioner and also to call his own witnesses to disprove the landlord''s case as to notice.

Thus, the Rule stands discharged. There will be no order as to costs.