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Gurudas Biswas Vs. Charu Panna Seal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberFull Bench Reference No. 1 of 1967 in A.F.O.D. No. 241 of 1960
Judge
Reported inAIR1977Cal110,81CWN188
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13(1), 17(1), 17(3) and 17(6); ;Transfer of Property Act - Section 106; ;Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 4; ;Evidence Act, 1872 - Section 115
AppellantGurudas Biswas
RespondentCharu Panna Seal and ors.
Appellant AdvocateSushil Kumar Biwas and ;Biplab Kumar Mitra, Advs.
Respondent AdvocateSatya Charan Pain, Adv.
Cases ReferredSubodh v. Santosh
Excerpt:
- a.k. de, j.1. charu panna seal started ejectment suit no. 1832 of 1958 on 8-10-1958 in the city civil court for eviction of gurudas biswas from suite no. 1 on the first floor of premises no. 1, jatindra mohan avenue.2. in the plaint she stated that she had terminated the tenancy of gurudas by serving a 'notice to quit' on him on 13-8-1958 asking him to vacate the premises on the expiry of the last day of september, 1958. she further stated an the plaint that gurudas had disentitled himself to protection from eviction having 'defaulted in the payment of rents for the suit premises from december, 1954'.3. gurudas contested the suit filing a written statement. he denied that he was a defaulter in the payment of rents. he also denied receipt of the notice to quit and stated that the notice.....
Judgment:

A.K. De, J.

1. Charu Panna Seal started Ejectment Suit No. 1832 of 1958 on 8-10-1958 in the City Civil Court for eviction of Gurudas Biswas from Suite No. 1 on the first floor of premises No. 1, Jatindra Mohan Avenue.

2. In the plaint she stated that she had terminated the tenancy of Gurudas by serving a 'notice to quit' on him on 13-8-1958 asking him to vacate the premises on the expiry of the last day of September, 1958. She further stated an the plaint that Gurudas had disentitled himself to protection from eviction having 'defaulted in the payment of rents for the suit premises from December, 1954'.

3. Gurudas contested the suit filing a Written Statement. He denied that he was a defaulter in the payment of rents. He also denied receipt of the notice to quit and stated that the notice dated 13-8-1958 was illegal, insufficient and void and had not determined his tenancy under Charu Panna. Gurudas, the defendant, appeared in the suit on 12-3-1959 and on the same day filed a petition praying for 'leave' to deposit rents for the months of January and February, 1959 and the subsequent current rents, month by month. The learned Judge by his order No. 5 dated 12-3-1959 granted it. After the issues were framed in the suit the plaintiff filed on 5-5-1959 a petition under Section 17 (3) of the West Bengal Premises Tenancy Act with the prayer to strike out the defendant's 'defence against delivery of possession'. This petition under Section 17 (3) was taken up for hearing on 22-6-1959 when the learned Judge made the following order:--

'Petition under Section 17 (3) is taken up. Heard lawyers appearing on both sides. As the facts necessary to decide question of default which is one of the issues framed in the suit also are involved in the application under Section 17 (3) of the West Bengal Premises Tenancy Act, it is desirable that both the matters should be heard on the same date and as such, the petition under Section 17 (2) is left for consideration at the trial'.

4. On the same date the defendant filed a petition of objection against the plaintiff's petition under a Section 17 (3). On 14-3-1960 the plaintiff filed a petition for her own examination on commission. The learned Judge by his order No. 19 dated 14-3-1960 allowed that prayer. Her evidence was taken by a Commissioner appointed by the Court. The said Commissioner submitted his report on 16-3-1960. In the meantime, the learned Judge by his Order No. 20 dated 15-3-1960 fixed the suit for positive hearing on 16-3-1960. On that date both the parties came ready and the learned Judge had recorded this order.

'23. 16-3-60. Both parties ready. The plaintiff has tendered the commission evidence. The application under Section 17 (1) (a mistake for Section 17 (3)) W. B. P. R. C. Act, 1956 put UP. The defendant's learned Advocate Sree R. L. Dutta examining after the Challans filed by the defendant submitted that the defendant did not. on the Challans filed, deposit rent on term of Section 17 (1), of the Act upto date and Chat his W. S. can't be saved from being struck off. Then Sree Dutta took leave of the Court and retired. The W. 5, of the defendant is struck off. The plaintiff's evidence on commission submitted for judgment, to 17th March. 1960, as the defendant has withdrawn from the suit.

S. Bagchi

Judge.'

On 17-3-1960 the learned Judge decreed the suit ex parte for eviction of the defendant Gurudas by his order No. 25 dated 17-3-1960. The defendant filed First Appeal No. 242 of 1960 in this Court against the said judgment and ex parte decree.

5. In the first appeal the defendant-appellant appeared to have argued that the plaintiff was not entitled to a decree in the suit as no notice of suit had been given under Section 13 (6) and that such notice, if any given, was invalid; that the evidence, on which the learned Judge had decreed the suit ex parte, was not sufficient to prove the validity of the notice of ejectment meaning the notice to quit under Section 106 of the Transfer of Property Act.

6. Two learned Judges of the Division Bench, hearing the first appeal, were of the view that when the defence against delivery of possession had been struck out under Section 17 (3) the defendant should not be allowed to agitate the ground as to the non-existence or invalidity of a notice under Section 13 (6), either in the Court below or in the Court of Appeal and that he should not be permitted to take the defence as to the non-existence or invalidity of a notice of ejectment for the first time in appeal as he did (not ?) appear in the Court below at the final hearing. Their views, indicated above, did not agree, in their opinion, with the decision of another Division Bench of this Court in the case of Subodh Chandra Singha v. Santosh Kumar Sriman, reported in (1964) 68 Cal WN 184 on those points They had framed two points, quoted below, and had referred the case to the Full Bench for determination as to whether upon the two points, framed by them, the decision in the case of Subodh Chandra Singha v. Santosh Kumar Srimani, (1964) 68 Cal WN 184 has been rightly decided.

7. The two points, framed by them, are :--

(1) In our opinion, where a defence as to delivery of possession has been struck out under Section 17 (3) the defendant can no longer take the defence of the non-existence or invalidity of a notice under Section 13 (6) either in the Court below or in the Court of Appeal.

(2) In our opinion, where a defendant does not appear in the Court below and take the defence as to the non-existence or invalidity of a notice of ejectment he should not be permitted to take the defence for the first time in appeal,

8. Before introduction of Section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and subsequent introduction of Section 13 (1) in the West Bengal Premises Tenancy Act, 1956, on repeal of 1930 Act, a landlord was entitled to a decree for eviction of a tenant on proof that he had validly determined the tenancy of the tenant. By Section 13 of the West Bengal Premises Tenancy Act 1956 the tenants have been given special protection against eviction on grounds, enumerated in Clauses (a) to (k) of Sub-section (1). In Section 13 (6) it has further been laid down that a land-lord, before filing a suit for eviction, is required to give a notice of suit in addition to, or together with, his notice to quit under Section 106 of the Transfer of Property Act to 'ask for' a decree for possession considering 'if the tenant has disentitled himself' to protection against eviction on any or more of the grounds introduced by Section 13 (1).

9. Section 17 (1) of the West Bengal Premises Tenancy Act, 1956, to be hereafter called the Act, is that a tenant, against whom a suit on 'any of the grounds referred to in Section 13' has been instituted will be required to pay or deposit arrear of rents, if any, and to continue depositing or paying current rents, thereafter, within periods specified therein. Consequence of non-compliance with Section 17 (1) is in Section 17 (3) which is that if a tenant fails to deposit or pay any amount 'referred to in Sub-section (1).....' the Court shall order, his defence 'against delivery ofpossession' to be struck out and shall proceed with the hearing of the suit. When we refer to Section 13, we find that the grounds on which 'recovery of possession' may be had are enumerated in its Sub-section (1) and not in any other sub-section. Upon a reading of Sections 17 (1) and 17 (3), with Section 13, particularly its Sub-section (1) we are of opinion that the expression 'defence against delivery of possession' in Section 17 (3) means the defence as may be taken on any or more of the 'grounds' in Section 13 (1). When a defence against delivery of possession is struck out the tenant's de-fence on the grounds in Section 13 (1) is only struck out.

10. The decision in (1964) 68 Cal WN 184 had been doubted by the Division Bench, referring to the Gellatly's case in : AIR1953Cal409 to observe that 'sub-section (6) of Section 13 is as much protection to the tenant as Sub-section (1)' because of the 'heading of Section 13'. A similar argument based on Gellatly's case, was made and repelled in the case of Ajit Kumar v. Baij-nath in (1961) 65 Cal WN 1110, Renupada 'Mukherjee, J., observing :

'That decision was made under the Rent Control Act of 1950 and to someextent the Lower Appellate Court has relied upon that decision. I am, how-ever, of opinion that that decision has got no application to a case where a defenceof the tenant against delivery of possession has been struck out under Section 17(3) of the West Bengal Premises Tenancy Act. 1956. The reason is this. Mr. RoyChowdhury rightly pointed that the RentControl Act of 1950 did not make any provision for service of a notice of ejectment upon a tenant prior to the institu-1ion of the suit. The notice was govern-ed by the provisions of Section 106 of the Transfer of Property Act. The West Bengal Premises Tenancy Act of 1956makes a separate provision for service ofnotice upon the tenant before the filingof an ejectment suit.....

Section 17 (3) of the Act does not say that the whole defence of the defendantwill be struck out if he incurs the penaltyof non-payment of arrears of rent or of current rent. It says that the defenceagainst delivery of possession will be struck out. The expression 'defence against delivery of possession' is a relative expression, because the word 'defence', is a counterpart of the word'offence' which in this particular context means the case of the plaintiff. In an ejectment suit under Section 17 of the Act, the plaintiff claims recovery of possession of some particular premises on a ground or grounds referred to in Section 13. Where a suit is contested, the tenant puts forth a defence against the ground or grounds alleged in the plaint. Sub-section (3) of Section 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 should be struck out. 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 a condition precedent to the institution of a suit for ejectment under Section 17 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 (k) of Sub-section (1) of Section 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.'

11. In : AIR1953Cal409 the suit was filed on the ground that the tenant, being a defaulter in payment of rents, was not entitled to any protection under Section 12 (1) (i) as his defence against 'ejectment' had been struck out under Section 14 (4) of 1950 Act. It was held that for non-compliance with the provision of Section 14 (1) his defence against ejectment i. e. his defence so far as the 'special protection' in Section 12 (1) (i) conferred on the tenant, would be unavailable to him. That case did not consider the question that has arisen in the instant case. There was not corresponding provision like Section 13 (6) in Section 12. Whether a defence as to the entertainability of a suit on the ground of absence of notice, enjoined under the 1950 Act. was also a 'special protection' conferred to a tenant by that Act was not considered or decided. That case is of no aid in determination of the questions before us.

12. The conclusion, that we have reached above, is what two Division Bench decisions of this Court, namely in (1964) 68 Cal WN 184 and 73 Cal WN 305 have made on the same question. P. M. Mukherjee, J., speaking for the Court in (1964) 68 Cal WN 184 observed as follows rejecting Mr. Sen's contention.

'Mr. Sen appearing on behalf of the plaintiff respondent while realisms that the impugned notice might be invalid or insufficient for purposes of Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, and this invalidity or insufficiency may lead to the dismissal of his client's suit, as aforesaid sought to argue that the above objection is no longer open to the defendant appellant in this Court. Mr. Sen argued that in the instant case the tenant's defence against delivery of possession was struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. Mr. Sen argues that the objection to the notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 which according to him, is only part of the special defence, provided under the aforesaid Act, must be deemed to have been taken away from the defendant and it is no longer open to him to urge this point in support of this appeal.....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 Section 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 thenotice to quit'.

R. N. Dutt, J., in the other case, speaking for the Court, observed as follows :

'We would rather hold that what is struck out is the defence against delivery of possession under Section 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 Section 17 (3) of the Act is the defenceagainst delivery of possession providedfor under the Act, that is the special protection contained in Section 13 (1) of the Act. The effect of this conclusion is that apart from the question of jurisdiction thelandlord will have to prove the service of notice of suit under Section 13 (6) of the Act of 1956.'

13. The next point for consideration is whether Sub-section (6) of Section 13 is also a special 'protection' conferred by 1956 Act to the tenant. Sub-section. (6) is part of Section 13. The heading of section is 'protection of tenant against eviction'. Heading prefixed to a section cannot restrict the meaning of the section, and, is only useful aid in cases of doubt. If the language of section is clear, heading is not to be taken into consideration. The heading cannot be used to cut down the clear words of the section. Lord Macnaghten speaking for Privy Council in the case of Thakurain Balraj Kunwar v. Rae Jagatpal Singh reported in (1904) 31 Ind App 132 (PC) observed at page 142

'It is well settled that marginal notes to the section of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian Statute any greater authority than the marginal notes in an English-Act of Parliament'.

Sub-section (6) prescribed a step to betaken before filing the suit, 'protection against eviction' relates to a step after the suit is decided against the tenant for his eviction. When a tenant is held evict-able in law, the Court further considers whether he can seek or get protection against 'eviction' on any grounds in Sub-section. (1). Sub-section (6) is not any protection against eviction.

14. In I.-T. Commissioner v. Ahunbhai Umarbhai & Co. reported in : [1950]181ITR472(SC) , para. 19 (middle) Supreme Court quoted with approval the observations in (1904) 31 Ind App 132 (PC).

15. Lord Thankerton in the case of Secretary of State v. Mask & Company reported in AIR 1940 PC 105-109 and Lord Sumner in the case of Abdul Rahim Mohmed v. Municipal Commissioners for City of Bombay reported in ILR 42 Bom 462 = (AIR 1918 PC 20) made similar observations.

16. Mostwell on Interpretation of Statutes -- 11th Edition at page 48 quoting Lord Goddard in Rex. v. Surrey Assessment Commissioner reported in (1948) 1 KB 29 at page 32 writes:

'While the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words in this section, where there cannot be doubt as to the ordinary meaning'.

17. P. N. Mukherjee, J., has held in (1964) 68 Cal WN 184 at page 187. Col. 2 that it refers to 'Jurisdiction' observing as follows :--

'It is, in essence, a point of jurisdiction or, in other words, the Court has no jurisdiction to entertain the suit in the absence of such a notice. It is not, strictly a part of the tenant's defence. It is a part of the 'requirement of the plaintiff to entitle him to maintain the suit.'

18. If we accept the contention that the heading controls the whole of Section 13 in all its sub-sections, consequence that will follow will be that the defence of a tenant, sued for eviction on the ground under Section 13 (I) (f), pleading the bar laid down in Sub-section (3-A), will also be unavailable to him on his 'defence against delivery of possession' being struck out. That is a defence unconnected with 'special protection', imposing restriction upon the landlord in the matter of commencement of his suit for eviction before a 'certain period'. 'Special Protection', conferred by the 1956 Act, is only in Section 13 (1). Any other defence under any other sub-section of Section 13 or in any other section of the Act or in other Act is not 'against delivery of possession'. The words of Section 13 are clear. Meaning of any of its sub-section, is not to be ascertained with reference to the heading of the section.

19. By the notice under Section 106, Transfer of Property Act the landlord gets the right to possess. He has to enforce that right by a suit for recovery of possession. An embargo on his such right by a suit to recovery of possession is that he has to give a notice of suit under Section 13 (6) of 1956 Act, It was argued that by putting that 'embargo' another protection against eviction was given to the tenant. This contention does not appear to us to be sound. This restriction has no connection with 'eviction of the tenant'. It is but a restriction on the 'filing' of the suit. That means that the Court is to consider, on such objection when taken, as to whether it can hear the suit or go into questions relating to special protection and not to consider as to whether 'special protection' is available or will be given or not.

20. The decision in (1964) 68 Cal WN 184 cannot be said to have been reached incorrectly on this ground. Question (1) will be answered in the affirmative.

21. When a suit is decreed ex parte, because of the defendant not appearing or not participating in the trial after appearance, law has given him the right to file an appeal against that ex parte judgment and decree and to show in that appeal that the judgment, on the materials on record, could, and should, not have been passed. He cannot, there-fore be debarred from urging at the hearing of such an appeal his objections to the decree. The question is whether because of his- appearance on the day of trial and 'Voluntary retirement' thereafter from the case he waived his 'right' to object to the entertain ability of the suit on the ground of absence or invalidity of the notice of ejectment. Whether he has waived his 'right' by voluntary retirement? N. H. Bhagwati J., in the case of Basheshar Nath v I.-T. Commissioner reported in : [1959]35ITR190(SC) in para. 53 while dealing with the connotation of 'waiver' observed :

'It has been said that 'waiver' is a troublesome term in law. The generally accepted connotation is that to constitute waiver there must be an intentional re-linquishment of a known right or the voluntary relinqirishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, Estoppel is a rule on evidence. (See Dawson's Bank Ltd. v. Nippon Menkwa Kabushiki Kaisiha, 62 Ind App 100 at p. 108 = (AIR 1935 PC 79 at p. 82)).....and it would, I think, be going too far to hold that every unsuspecting submission to a law, subsequently declared to be invalid, must give rise to a plea of waiver; this would make constitutional rights depend for their vitality on the accident of a timely challenge and render them illusory to a very large extent.'

In the case of The Indian Link Chain . v. The Workmen reported in : (1971)IILLJ581SC it has been held that 'there cannot be any waiver byconduct or by implication of the requirement of a written notice' Voluntary retirement of the lawyer is only a 'conduct' of the defendant, if any.

22. P. N. Mukherjee, J., in (1964) 68 Cal WN 184 at page 186, Col 2 observed :

'Assuming however, that the point was not raised earlier as aforesaid, even then we are of the view that the plea of waiver is utterly inappropriate in a case of this kind. Waiver, as it is well known, is intentional relinquishment of a known right. It is true, that such intention may be inferred from circumstances, but the right in question must be a known right. This, indeed is well established in this Court (Vide -- Dhanukdhari Singh v. Nathima Sahu, (1907) 11 Cal WN 848) and it has only recently been re-affirmed by the Supreme Court in Manak Lal. Advocate v. Dr Prem Chand Singhri, : [1957]1SCR575 . Their Lordships of the Supreme Court have in the case, just cited, categorically laid down that the party, against whom waiver in pleaded, must have known about the relevant facts and of his right, which was said to have been waived. Judged by this test, the plea of waiver in the instant case would be unavailing. The law on the point of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, and particularly, whether it will be a notice to quit or a notice of suit or a combined notice to answer both the above descriptions, was unsettled and was in a state of confusion or in a fluid state until the recent Special Bench decision in F. A. 444 of 1961 (See also F. S.'s Nos. 101 and 102 of 1961), above cited, If the law was unsettled and the position was not clear as to the nature of this particular notice, it will normally, at least, and generally speaking, -- that is, in the absence of very strong circumstances to the contrary -- be utterly inappropriate to uphold a plea of waiver in respect of such a notice. It is significant to note, in this connection, that the plaint, in the instant case, refers to the notice in question only as a notice to quit. There is no reference, in the plaint to this notice as a notice of suit. It is difficult, in the above context, in the circumstances of this case, to sustain a plea of waiver of the disputed notice or of any defect thereof as a notice of suit, even assuming that no specific objection was taken oh theground that it is not a proper notice ofsuit under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956.'

23. Waiver is 'intentional withdrawal of a known existing right'. The judicial pronouncement laying down that a notice is a necessary antecedent step before a trial for eviction was made only on 19-6-1963 when this Court in its Full Bench decision in : AIR1964Cal1 so ruled. The tenant when his lawyer retired on 16-3-1960 had not any knowledge of any such right to object to the filing of ejectment suit for absence of notice under Section 13 (6). So his retirement on 16-3-1960 was not waiver of a known right. The referring Judges when they felt unable to agree with P. N. Mukherjee, J. do not appear to have adverted to his Lordship's observations and had not given any reasons for their disagreement with him.

24. There was no statement in the plaint that two notices, one to quit and the other notice of suit, or one notice, combining both, was given. If the statements in paras. 3 and 4 of the plaint are taken as referring to the two notices, separate or combined, then the defence in paras. 4 and 5 of the written statement is a denial of the same, as to the existence and validity of both. No specific issue was raised as to the notice of suit. There was no waiver of the objection as to absence or invalidity of notice of suit. Objection as to that, in our opinion, was taken in paragraphs 4 and 5 of the written statement. The question is whether the tenant, not waiving his objection as to the notice, in his written statement, can be said to have waived it by 'retirement' from the suit.

25. It was contended that there was 'voluntary retirement' from the suit by the defendant when his lawyer, upon his reading of the defendant's challans, submitted 'the defendant did not', on the challan filed, deposit rent on term of Section 17 (1) of the Act upto date and his written statement cannot be saved from being struck off'. His retirement, with Court's leave, could not have been from the suit. The Court could not have given such 'leave' for his retirement from the suit wholly. For, even after his defence against delivery of possession was struck out, he could show that the notice to quit was not served at all. The allegation in plaintiff's petition under Section 17 (3) was that the 'rents from December, 1954, to date of suit' had not been deposited in 'Court'. It was not his allegation that he had not deposited those in Rent Controller's Office. The point for determination in the application under Section 17 (3) was whether the deposit of rents, allegedly in arrears, by the defendants in Rent Controller's Office, as stated in his objection, filed on 20-6-1959 would be 'good deposit' for the purpose of Section 17 (1) or were not deposit in Court. Defendant's learned Advocate on his view that those were not 'good deposits' under Section 17 (1) asked for Court's leave to retire from the suit. In spite of defendant's clear case in his petition of objection dated 20-6-1959 to plaintiff's petition under Section 17 (3) the Court did not decide whether or not those deposits in Rent Controller's Office were 'good deposits' under Section 17 (1). The entire trial was vitiated by lawyer's mistaken admission on a point of law. In the case of Secretary of State v. Shibaprasad Jana reported in AIR 1919 Cal 972 the decision is that 'an erroneous admission by a lawyer on a point of law is of no effect and does not preclude a party from claiming his legal rights in the appellate Court'. Voluntary retirement following an erroneous admission of the lawyer is no 'waiver' by the defendant. Even if it were so, it would not be waiver as this 'right to object' was not known.

26. TO pass an ex parte decree in a suit for ejectment on one of the grounds in Section 13 (1), the Court is required to decide, whether the suit is defended or not (if the relationship of landlord and tenant is not disputed as here) (a) whether the tenancy has been validly determined by a notice under Section 106, Transfer of Property Act, (b) whether a valid notice of suit was given before filing the suit (c) whether the ground alleged in the plaint to take away the tenant's special protection conferred by Section 13 (1), has been established on the evidence. This is the requirement of Order 20, Rule 4, Civil Procedure Code, whether the suit is contested or not. The Court cannot relieve itself of the necessity of complying with Order 20, Rule 4 even if it strikes out the tenant's defence against delivery of possession or the written statement. 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.

27. There is no finding in the ex parte judgment by the trial Judge that the defendant is a 'defaulter'. As it had not made any such finding, the Court could not pass a decree for eviction. This is the view taken by the Supreme Court in the case of Bahadur Singh v. Muni Subrat Dass in (1969) 2 SCR 432 where it has been held that the decree for delivery of possession to the landlord is a nullity if not made in a suit by the landlord for recovery of possession from the tenant on any of the grounds stated in Section 13 (1) of Delhi & Ajmir Rent Control Act. 1952 and unless the Court was satisfied that such a ground of eviction exists. Reference may also be made to the case of Smt. Kaushalya Devi v. K. L. Bansal in : [1969]2SCR1048 and Ferozilal Jain v. Man Mal in : AIR1970SC794 and K. K. Chari v. R. M. Seshadri in : [1973]3SCR691 . The defendant cannot, therefore, be debarred from showing in the appeal Court absence of such finding.

28. The case of Subodh v. Santosh in (1964) 68 Cal WN 184 has been rightly decided on both the points, framed by the referring appeal Court.

29. We answer the points raised as follows :--

(1) Yes, can take.

(2) Should be permitted.

Sankar Prasad Mitra, C.J.

30. I agree.

M.M. Dutt, J.

31. I agree.


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