Skip to content


Sm. Daya Moyee Sadhukhan Vs. Dal Singer Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 43 of 1975
Judge
Reported inAIR1979Cal332,83CWN663
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(3); ;Code of Civil Procedure (CPC) , 1908 - Order 9, Rules 6(1) and 7- Order 11, Rule 21
AppellantSm. Daya Moyee Sadhukhan
RespondentDal Singer Singh
Appellant AdvocateSachindra Chandra Das Gupta and ;Kanakendra Bhusan Kanjilal, Advs.
Respondent AdvocateBankim Chandra Datta and ;Swapan Kumar Gorai, Advs.
DispositionAppeal allowed
Cases ReferredIn Sangram Singh v. Election Tribunal
Excerpt:
- .....act. at the hearing of the suit, the plaintiff examined her husband. the defendant was allowed to cross-examine the plaintiff's husband on all the issues. the defendant also examined himself only on the question of service of the notice to quit.5. the learned chief judge, city civil court, calcutta came to the finding that the notice to quit was duly served upon the defendant, and that the same was legal and valid. he, however, held that the plaintiff had failed to produce sufficient and convincing materials to prove that the defendant had raised the constructions in the suit premises in violation of the provisions clauses (m), (o) and (p) of section 108 of the transfer of property act. in that view of the matter, the learned chief judge dismissed the suit. hence this appeal by the.....
Judgment:

M.M. Dutt, J.

1. This appeal is at the instance of the plaintiff and it arises out of a suit for ejectment.

2. The case of the plaintiff was that the defendant was a monthly tenant under the plaintiff in respect of the suit premises being premises No. 2/3, Commissariat Road, Calcutta-22, consisting of one big corrugated shed, one pucca room and vacant land measuring 7 cottahs at a rental of Rs. 270/- per month payable according to the English Calendar month. It was alleged that the defendant had illegally constructed 5 rooms with pucca roof and also two tiled-roofed rooms on the vacant land within the suit premises without the knowledge and consent of the plaintiff. The further case of the plaintiff was that the defendant had also demolished some portions of the boundary wall of the suit premises and constructed another room and sublet the same without the consent of the plaintiff, It was alleged that the defendant had constructed one latrine in front of the main gate without the consent of the plaintiff. It was contended that the defendant thus violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The plaintiff determined the tenancy of the defendant by the service of a notice to quit, calling upon him to vacate the suit premises on the expiry of Dec., 1972, but the defendant did not comply with the terms of the notice. Hence the plaintiff instituted the suit.

3. The defendant entered appearance in the suit and filed a written statement. He denied that he had constructed the aforesaid rooms without the consent of the plaintiff as alleged. His case was that the said rooms were constructed by the plaintiff and the defendant had to increase the rent (sic, to pay the increased rent?) from time to time. According to the defendant, the initial rent was Rs. 225/- per month but that was increased to Rs. 270/- per month. He denied that he had broken the boundary wall and constructed a room as alleged. Further, he denied that he had sub-let any room of the suit premises. The service of the notice to quit and the legality 'hereof were also denied by him.

4. During the pendency of the suit, the defendant did not comply with the provisions of Section 17 (1) of the West Bengal Premises Tenancy Act, 1956 and, accordingly, the defence of the defendant against delivery of possession was struck out on May 22, 1970 under Section 17 (3) of the said Act. At the hearing of the suit, the plaintiff examined her husband. The defendant was allowed to cross-examine the plaintiff's husband on all the issues. The defendant also examined himself only on the question of service of the notice to quit.

5. The learned Chief Judge, City Civil Court, Calcutta came to the finding that the notice to quit was duly served upon the defendant, and that the same was legal and valid. He, however, held that the plaintiff had failed to produce sufficient and convincing materials to prove that the defendant had raised the constructions in the suit premises in violation of the provisions Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. In that view of the matter, the learned Chief Judge dismissed the suit. Hence this appeal by the plaintiff.

6. Mr. Sachindra Chandra Das Gupta, learned Advocate appearing on behalf of the plaintiff appellant, has strenuously urged before us that as the defence of the defendant against delivery of possession was struck out, the learned Chief Judge was not at all justified in allowing the defendant to cross-examine the plaintiff's witness. It is contended by him that after the defence of a tenant against delivery of possession is struck out under the provision of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, the Court has to proceed ex parte and it has no jurisdiction to allow the tenant to cross-examine the plaintiff's witnesses. In support of his contention, he has placed strong reliance on the decision of the Full Bench of this Court in Gurudas Biswas v. Charu Panna Seal, : AIR1977Cal110 . Two points came up for consideration before the Full Bench, namely, (1) whether a defendant whose defence against delivery of possession has been struck out under Section 17 (3) can take the defence of the non-existence of or invalidity of a notice under Section 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 the defence as to the non-existence or invalidity of the notice to quit for the first time in appeal. The Full Bench answered both the above points in the affirmative. A. K. De J. who delivered the judgment of the Full Bench and answered the said two points observed 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.'

The last part of the said observation undoubtedly supports the contention made on behalf of the plaintiff appellant that when the defence of the defendant against delivery of possession is struck out under the provision of Section 17 (3), he will be debarred from giving evidence and also from cross-examining the witnesses of the plaintiff. Mr. Das Gupta submits that the said observation of the Full Bench is binding on us and we have been pressed to set aside the judgment of the learned Chief Judge as he had allowed the defendant to cross-examine the plaintiffs witness and to examine himself in support of his case of non-existence of the notice to quit. The question, therefore, is whether the said observation is binding on us. As stated already, the Full Bench was required to consider whether the defendant whose defence against delivery of possession was struck out could take the defence as to the non-existence or invalidity of the notice under Section 13 (6) either in the trial court or in the appeal court, and whether he could take such defence for the first time in appeal when he did not appear in the trial court. Strictly speaking, the observation that the defendant would not be permitted either to cross-examine the plaintiff's witnesses or to call his own witnesses at the trial does not relate to the points that were required to be answered by the Full Bench. In these circumstances, in our opinion, the said observation is obiter and has no binding force.

7. We may now consider whether the defendant whose defence against delivery of possession has been struck out under Section 17 (3) can cross-examine the plaintiff's witnesses on merits and whether he can adduce evidence on the point of service of the notice to quit. Under Order 9, Rule 6 (1) (a) of the Code of Civil Procedure where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the Court may proceed ex parte. Rule 7 of Order 9 provides that where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance. In Sangram Singh v. Election Tribunal, : [1955]2SCR1 , it has been laid down by the Supreme Court on an interpretation of Rule 6 (1) (a) and Rule 7 of Order 9 that if a defendant appears at an adjourned hearing of the suit and does not show good cause, he cannot be prevented from participating in the proceedings simply because he did not appear at the first or some other hearing, and in case the plaintiff was not misled, then surely he should be allowed to cross-examine the plaintiff's witnesses. Under Order XI, Rule 21 of the Code of Civil Procedure where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly. It is apparent from the provision of Rule 21 that the entire defence of the defendant will be struck out under the circumstances as mentioned in Rule 21 and he will be placed in the same position as if he had not defended the suit. Under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 only the defence against delivery of possession will be struck out. The defence of the defendant relating to the service of the notice will remain alive. In Paradise Industrial Corpn. v. M/s. Kiln Plastics Products, : [1976]2SCR32 , it has been 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. In a recent decision in Babbar Sewing Machine Company v. Trilok Nath Mahajan : [1979]1SCR57 , the Supreme Court observed as follows;

'It was further contended that the High Court was in error in observing that 'in view of the clear language of Order XI, Rule 21' the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of Order XI, Rule 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 Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte. In Sangram Singh v. Election Tribunal : [1955]2SCR1 it was held that if the court proceeds ex parte against the defendant under Order IX, Rule 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 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 under Order XI, Rule 21, this contention does not survive for our consideration. We, therefore, refrain from expressing any opinion on the question.'

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 plaintiff. The above decisions of the Supreme Court do not support the observation made in the Full Bench case referred to above, namely, that when the defence of the defendant has been struck out he would not be permitted to cross-examine the plaintiffs witnesses when they give evidence. In the circumstances, we hold that in a case where the defence of the defendant is struck out under the provision of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, the defendant will be entitled to cross-examine the plaintiff's witnesses on all the points. There can be no doubt that his defence as to the service of the notice to quit and of suit will remain unaffected by the striking out of his defence against delivery of possession and he will be entitled to adduce evidence in support of that defence. In other words, the defendant will be entitled to participate in the proceeding and make his submissions against the plaintiff's case for delivery of possession. The learned Chief Judge was, therefore, justified in allowing the defendant to cross-examine the plaintiff's witness and to adduce evidence by examining himself on the point of notice.

8. Now we may consider the propriety of the finding of the learned Chief Judge that the plaintiff had failed to adduce sufficient evidence in proof of his case that the defendant had constructed 7 rooms, namely, 5 pucca rooms and 2 tiled-roofed rooms in the suit premises, demolished the boundary wall thereof and sub-let one of the rooms, without the knowledge and consent of the plaintiff. In coming to the said finding, the learned Chief Judge in his judgment has summarised the suggestions made by the defendant to the plaintiff's witness during his cross-examination. Thereafter, the learned Chief Judge proceeded to examine the plaintiff's case and the evidence of the plaintiffs witness with reference to the suggestions made by the defendant as summarised by him. It appears that in considering the plaintiff's case, the learned Chief Judge relied on the said suggestions of the defendant taking the same as the defence case and after weighing the same with the evidence adduced by the plaintiff's witness arrived at the said finding against the plaintiff. In our view, the approach made by the learned Chief Judge was erroneous and was not authorised by the provisions of law. The sole object of cross-examination of a witness is to elicit the truth. But the Court is to consider in such circumstances as to whether the plaintiff has been able to prove his case prima facie. As the defence of the defendant against delivery of possession has been struck out, in our opinion, it is not permissible for the Court to spell out the defence case from the suggestions made on behalf of the defendant during the cross-examination of the plaintiff's witnesses and then consider the plaintiff's case as made out in evidence along with the suggestions made on behalf of the defendant. It is well-established principle of law that suggestions, unless admitted, are not evidence and cannot be relied on in negativing the case of a party to whom the suggestions were made during his cross-examination. In the circumstances, in our view, the judgment of the learned Chief Judge is vitiated and cannot, therefore, be sustained. In our opinion, the case should go back for re-consideration. It may, however, be recorded that the finding of the learned Chief Judge as to the service of the combined notice to quit and of suit and its legality has not been challenged before us on behalf of the defendant respondent and, accordingly, the said finding is affirmed.

9. For the reasons aforesaid, the judgment and decree of the learned Chief Judge are set aside and the case is sent back to him with a direction that he should consider the case afresh in the light of the observation made above and on the evidence already on record, after giving the parties an opportunity of making their submissions, subject to this that if it is prayed for by the plaintiff he will issue a commission for local inspection of the suit premises. The finding of the learned Chief Judge that the combined notice to quit and of suit was duly served upon the defendant, and that the same was legal and valid is affirmed.

10. The appeal is allowed, but in view of the facts and circumstances of the case, there will be no order for costs.

Sharma, J.

11. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //