Sabyasachi Mukherjee JUDGMENT
S. Ranganathan, J.
1. A somewhat important question as to the nature and scope of the rights available to a defendant whose "defensehas been struck out" calls for determination in this appeal in the particular context of the West Bengal Premises Tenancy Act, 1956. The appeal arises from the judgment of a Full Bench of the Calcutta High Court constituted to resolve a conflict in the earlier decisions of the same court on this issue. The Full Bench, by a majority of two (P.K. Banerjee and Chittatosh Mookerjee, JJ) to one (Ramendra Mohan Datta, Acting C.J.) decided that in a matter where the defence against delivery of possession has been struck out under Sub-section 3 of Section 17 of the West Bengal Premises Tenancy Act, 1956, (hereinafter referred to as the 'Act') the defendant-tenant cannot cross-examine the witnesses called by the plaintiff, excepting on the point of notice under Section 13(6) of the said Act. The correctness of the view taken by the majority is contested in this appeal.
2. Though the learned Judges were of opinion that the issue decided on the reference raised substantial questions of law of general importance, they considered themselves unable to grant a certificate of fitness for appeal to this Court since the reference had arisen only on an interim order and the view expressed did not result in a judgment, order or decree against which leave to appeal could be granted. Thereupon the aggrieved party filed a petition for special leave to appeal before this Court, which was granted. It is in this manner that the issue has been brought up before this Court.
3. A detailed factual background is not necessary since the question raised is purely one of law. It may, however, be mentioned that the respondent in this appeal filed a suit in 1979 on the original side of the Calcutta High Court praying for a decree directing the defendant (present appellant) to deliver up vacant and peaceful possession of certain premises in Calcutta and also for a decree for mesne profits or damages from February 1, 1978 till the date of delivery of possession. The appellant, a company carrying on business at the premises in question, filed its written statement denying the averments in the plaint and the claims made therein. During the pendency of the suit several interlocutory applications were made from time to time in which orders were passed directing the present appellant (hereinafter referred to as the tenant) to deposit certain sums in court. At one stage it appears that the tenant made an application praying that he may be permitted to deposit the arrears of rent in monthly installments along with the current rents. No orders were passed on this application on the ground that the application was out of time. However, it appears that subsequent to disposal of this application, the defence of the tenant had been struck off under the provisions of Section 17(3) of the Act. The correctness of this order striking out the defence of the tenant has become final and is no longer in issue. It, however, appears that the tenant contended before the trial court (though the details are not available on record) that the order under Section 17(3) could, at worst, preclude the tenant only from adducing evidence, oral or documentary, in support of the averments made in its written statement. It was claimed that it was open to the tenant to exercise his ri........