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Maharam Ali Vs. Dinanath Prasad Sha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberAppeal from Appellate Decree No. 993 of 1970
Judge
Reported inAIR1973Cal379,1973CriLJ373,77CWN202
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13 and 17
AppellantMaharam Ali
RespondentDinanath Prasad Sha
Appellant AdvocateMrittunjoy Palit, Adv.
Respondent AdvocateShyamaprosanna Roy Choudhury, Adv.
DispositionAppeal allowed
Cases ReferredIn Ferozilal Jain v. Man Mal
Excerpt:
- .....this suit. the notice was found to be legal, valid and sufficient and duly served. accordingly the suit was decreed. other grounds for eviction, it appears, were not pressed.4. an appeal was preferred against this decision by the tenant and the appeal court was also of the opinion on the question of default that as the order dated january 9. 1968 striking out defence was not disturbed, the same stood. it was further of opinion that the defence was rightly struck out by the learned munsif. the appeal court further found that the tenant was not entitled to any benefit under the west bengal premises tenancy (amendment) act, 1968. the legality of the notice was not challenged. the appeal accordingly was dismissed and the judgment of the learned munsif was affirmed.5. the present appeal is.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal bythe defendant in a suit for recovery of possession of premises held under a tenancy governed by the West Bengal Premises Tenancy Act. 1956. The plaintiff's case is that the suit tenancy was according to calendar month of Hindi Sambal year and the rent was Rs. 13/-per month. The tenant was a defaulter in payment of rent since Baisakh 1372 Fasli year. The plaintiff also made a case of reasonable requirement for his own use and occupation and also for building and rebuilding.

2. By a notice dated 28th January, 1966 the tenancy was determined with the expiry of Hindi Fasli month of Falgoon 1373 (H. S.) and as the defendant did not deliver possession as required, a suit was instituted on 5th April, 1966.

3. The suit was contested by the defendant who filed a written statement denying that he was a defaulter. It was further stated that the rate of the rent was Rs. 10/-and he had been depositing the rent at through. The defendant also challenged the notice which according to him was not legal, valid or sufficient. It appears that on an application filed by the plaintiff under Section 17 (3) of the Act the learned Munsif by an order dated January 9. 1968 struck out the defence against the delivery of possession The suit thereafter was taken up for final hearing when one witness on behalf of the plaintiff was examined and cross-examined and the notice and postal issue and acknowledgment receipts were marked exts. as Exts. 1, 2 and 3 respectively. The learned Munsif by his judgment dated April 27, 1968 decreed the suit. In regard to issue No. 3 whichrelated to the issue of default it was held that as the defence against delivery of possession was struck out this issue needed no further determination in this suit. The notice was found to be legal, valid and sufficient and duly served. Accordingly the suit was decreed. Other grounds for eviction, it appears, were not pressed.

4. An appeal was preferred against this decision by the tenant and the appeal Court was also of the opinion on the question of default that as the order dated January 9. 1968 striking out defence was not disturbed, the same stood. It was further of opinion that the defence was rightly struck out by the learned Munsif. The appeal court further found that the tenant was not entitled to any benefit under the West Bengal Premises Tenancy (Amendment) Act, 1968. The legality of the notice was not challenged. The appeal accordingly was dismissed and the judgment of the learned Munsif was affirmed.

5. The present appeal is against this decision. Mr. Mritunjay Palit learned Advocate appearing for the tenant-appellant has contended that in the judgment of the courts below there is no finding as to whether the defendant was a defaulter in payment of rent. It was contended that in order to pass a decree for recovery of possession it was incumbent on the court to come to a finding about the default and in absence of such finding the judgment under appeal could not be sustained. It would appear from the records of the proceeding that at the final hearing the plaintiff's single witness gave evidence about the default and other matters and the witness was cross-examined. Both the Courts however have relied on the finding arrived at on the application under Section 17 (3) of the Act and did not arrive at any finding on the evidence which was adduced at the time of hearing on the issue of default.

6. Mr. Roy Choudhury, learned Advocate for the plaintiff respondent contends that in view of the order striking out of the defence against ejectment no further point need be established before or decided by the Court except on the notice as required under the general law as also under the provision of Section 13 (6) of the Act. He has referred to the Bench decision in Basudee Ganeriwalla v. Canton Carpentry Works Pvt. Ltd. reported in (1969) 73 Cal WN 365 in which it was observed:

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

7. Mr. Roy Choudhury has also referred to the decision in Subodh Chandra Singh v. Santosh Kumar Srimani (1964) 68 Cal W. N. 184 in which it was held that a suit in which defence of the defendant against delivery of possession had been struck out under Section 17 (3) of the Act of 1956 the plaintiff will have to prove not only the service of the notice under Section 106 of Transfer of Property Act but also the service of notice of suit under Section 13 (6) of the Act of 1956. On these authorities it has been contended by Mr. Roy Choudhury that as the defence made in the written statement has been struck out by order under Section 17 (3) the plaintiff was required only to prove the legality and validity of the notice as also its service and since these have been done and the courts have found the notice to be valid and duly served there is no further impediment in the suit being decreed for recovery of possession. Mr, Roy Choudhury contended further that in view of the finding on the application under Section 17 (3), if the notice is found to be legal and valid, the plaintiff would be entitled to a decree notwithstanding the provision of Section 13 (1) of the Act. Mr. Palit has contended on the other hand that even if the defence against delivery of possession has struck out and the notice is otherwise valid and properly served the plaintiff will have to prove his case affirmatively by legal testimony establishing all or any of the grounds referred to in grounds (a) to (k) of Sub-section (1) of Section 13 of the Act and only when the court is satisfied that all or any of the grounds under that Sub-section have or has been made out, the court wilt pass a decree for recovery of possession.

8. Under the provisions of West Bengal Premises Tenancy Act, 1956 the Court is entitled to pass a decree for recovery of possession on one or more of the grounds mentioned in Section 13 (1), and unless any or more of such grounds are made out and established, the Court is not entitled to pass any decree irrespective of the question whether the suit defended or the defence against delivery of possession is struck out even though the notice to quit and of suit is legal and valid and duly served. In Ferozilal Jain v. Man Mal reported in, : AIR1970SC794 the Supreme Court was considering as to whether the decree under execution was a nullity. It may be that the decree, in question was one passed on compromise and the terms provided that the parties shall be bound by the terms which were to be incorporated in the decree sheet and the decree was passed on that basis. This proceeding was covered by the Delhi and Ajmer Rent Control Act. 1952 and the provisions of Section 13 (1) are in pari materia with those of Section 13 (1) of our Act. The court held:

'From this provision, it is clear that after the Rent Control Act came into force, a decree for recovery of possession can be passed by any court only if that court is satisfied that one or more of the grounds mentioned in Section 13 (1) are established. Without such a satisfaction the court is incompetent to pass decree for possession. In other words the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13 (1) have been proved.'

The court further observed in the above case that at no stage the court was called upon to apply its mind when passing the decree and solely proceeded on the basis of the compromise in awarding the decree and that being so there was hardly any doubt that the court was not competent to pass the impugned decree which was held to be a nullity.

9. In the West Bengal Premises Tenancy Act, 1956 under Section 13 (1) notwithstanding anything to the contrary in any other law, no order or decree for possession at any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the grounds mentioned in clauses (a) to (k) of the Sub-section. Whether a tenant admits any of the' grounds of eviction or by reason of an order under Section 17 (3) his defence against delivery of possession is struck out, the Court's jurisdiction to pass any order or decree for recovery of possession is circumscribed to the grounds of clauses (a) to (k). The Court before exercising its jurisdiction by passing the order or decree for recovery of possession must be satisfied that one or more of such grounds have been established. Merely because the defence is struck out, it will not automatically imply or mean that the relevant grounds have been established as required under Section 13 (1). Findings on application under Section 17 (3) are tentative findings for the purpose of that Sub-section only, like the tentative findings arrived at by Court in passing interlocutory orders under Orders 38, 39 or 40 of the Code of Civil Procedure and such findings cannot be equated with the final findings in a suit. Of course there is no bar in the Court's arriving at a final finding for the purpose of the suit itself in dealing with application under Section 17 (3) when the parties have notice of the proposed step and are afforded opportunity to adduce evidence in support of their respective cases and in rebuttal of the case of the other side. Apart from such cases, the Court must of necessity come to its findings on the grounds for recovery of possession on the evidence adduced before passing a decree or order for possession. Such grounds, though affording a special protection to tenants not otherwise available in general law, are not merely the special defence of a tenant, the withdrawal of which by striking out his defence, willautomatically entitle the landlord to a decree. Section 13 (1) will not give jurisdiction to Court to pass the decree, even though the tenant's defence against ejectment be struck out, unless the grounds within its various clauses are proved to its satisfaction. The landlord therefore on the authority of the above case 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 Section 17 (3). Such evidence again would be subject to cross-examination by the tenant for demolishing the landlord's case relating the grounds of Section 13 (1) as also on notice though the defendant will not be permitted to adduce evidence in support of his own case after striking out his defence against recovery of possession.

10. In this case we are concerned with the application under Section 17 (3) which has been allowed, but it does not, for above reasons mean that the requirement under Section 13 (2) has been satisfied. In the present case the plaintiff has given evidence at the final hearing in support of his case of default and he has been cross-examined by the defendant. As already noted the courts below have not come to any finding on the question of default which under the law is incumbent on the courts to arrive at before the courts have the jurisdiction to pass a decree for recovery of possession,

11. For these reasons this appeal is allowed. The judgments and decrees of the courts below in regard to default are set aside. The case is sent back to the trial court for finding on the question of default on the materials on record. After such finding is made the court will proceed to dispose of the suit in accordance with law. Costs will abide the result.

12. I make it clear that the order passed under Section 17 (3) is not considered by me as it was not necessary. Further on the question of notice and its service the finding already arrived at by the courts below are affirmed.


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