@JUDGMENTTAG-ORDER
Monoranjan Mallick, J.@mdashThis is an appeal agains the judgment and decree passed by the Judge 10th bench, City Civil Court Calcutta in Ejectment Suit No. 237 of 1978. The facts which are necessary for disposing of this appeal may be briefly stated as follows:--
The plaintiff respondent filed the above ejectment suit against the present appellant on the ground of reasonable requirement among other grounds. The present respondent filed an application under S. 17(3) of the West Bengal Premises Tenancy Act for strik- ing out the defence of the defendant appellant on the ground that he did not comply with the provisions of Section 17(1) of the West Bengal Premises Tenancy Act.
2. Even thoght the apellant filed the written objection against said application he did not appear on 1-7-1982 when the said application was taken up for hearing and the learned trial Judge allowed the plaintiff respondent''s application under Sec. 17(3) of the West Bengal Premises Tenancy Act and struck out the defence. Thereafter as the defendant did not appear to contest the suit on 6-8-1982 i.e. the date for peremptory hearing the learned trial Judge on considering the evidence adduced by the plaintiff respondent decreed the plaintiff respondent''s suit for ejectment on the ground of reasonable requirement. The present appellant thereafter filed an application under O. 9, R. 13, of C.P.C. to set aside the ex parte decree and also another application u/s 151, C.P.C. for setting aside the order dated 1-7-1982 striking out the defence against delivery of possession. The learned trial Judge on hearing the application under O. 9, R. 13, C.P.C. registered as a Misc. case allowed the same and set aside the ex parte decree on 16-1-1984 and restored the suit to file for hearing. Then the defendant filed another application u/s 151, C.P.C. praying for condoning the delay in depositing the rent for the month of Falgun 1387 B.S. On 4-4-1984 the learned trial Judge refused to vacate the original order dated 1 -7-1982 striking out the defence ex parte and to condone the delay in depositing the rent for the month of Falgun 1387 B.S. Then the present appellant moved High Court in revision against the said order and the High Court in revision dismissed the said application affirming the order passed by the learned trial Judge refusing to condone the delay on the ground that the learned trial Judge in view of the decision in Provabati Chakrabarty v. Satyendra Nath Chatterjee reported in 1978 (1) Cal LJ page 629 had no jurisdiction to condone the delay in respect of the deposit of rent made with the rent controller. Thereafter, the learned trial Judge took up the hearing of the suit. As the defence against delivery of possession was struck out the learned trial Judge permitted the present appellant only to cross-examine the witnesses adduced by the plaintiff and did not permit the defendant appellant to adduce any evidence in support of his defence.
3. Before the learned trial Judge the plaintiff respondent pressed for ejectment of the defendant appellant only on the ground of reasonable requirement and the learned trial Judge on consideration the accommodation available with the plaitiff and the accommodation required regard being had to the members of the family of the plaintiff respondent accepted the case of the plaintiff respondent that he reasonably required the whole suit premises for his own occupation for himself and members of his family. He, therefore, granted the plaintiff respondent the decree for ejectment. Being aggrieved the defendant appellant has preferred this appeal.
4. Before us the appellant has raised the following four grounds, namely:--
(1) The learned trial Judge committed a great illegality in disposing of the plaintiff respondent''s petition u/s 17(3) of the West Bengal Premises Tenancy Act without calling upon the plaintiff respondent to adduce evidence in support of the said petition and the order is, therefore, on the face of it illegal.
(2) The learned trial Judge at no point of time disposed of the appellant''s application u/s 151, C.P.C. praying for setting aside the ex parte order dated 1-7-1982 striking out the defence and without disposing of said application disposed of the suit on merits and the decree in the circumstances is vitiated.
(3) The appellant had very good ground made out for setting aside such ex parte order dated 1-7-1982 and the ground was the same which was taken for setting aide the ex parte decree and in the circumstances if the learned Trial Judge considered the said application on merits, he would have allowed the said application.
(4) The learned trial Judge did not also take into consideration as to whether the partial eviction of the defendant appellant would have served tile purpose of the present plaintiff respondent''s reasonable requirement regard being had to the accommodation already available and also regard being had to the number of the member of the family of the plaintiff respondent.
5. At about the time of the hearing an affidavit has been filed on behalf of the appellant in which it has been stated that the son of the widowed sister of the plaintiff respondent after marriage has shifted to some other place and the plaintiff respondent does not, therefore, have any need for accommodating such son of the widowed sister.
6. An affidavit-in-Opposition has been filed by the plaintiff respondent in which the above fact has been admitted and it has been contended that as there is great paucity in accommodation of the plaintiff respondent the son of the plaintiffs widowed sister after marriage had to shift elsewhere as the plaintiff could not provide a separate room for him to live with his wife after marriage.
7. The appeal has been contested by the plaintiff respondent.
8. The first point for decision in this appeal is whether the order passed by the learned trial Judge striking out the defence on 1-7-1982 is illegal on the ground that the plaintiff respondent did not adduce any evidence in support of the petition.
9. Mr. Sudhish Dasgupta appearing on behalf of the appellant has submitted that it was incumbent upon the plaintiff to prove his case for striking out the defence by adducing evidence, even if the defendant appellant did not contest the said petition and when no evidence was adduced by the plaintiff in support of the petition then the order on the face of it is illegal.
10. This contention has been seriously refuted by the plaintiff respondent. It is contested that u/s 17(3) does not contemplate disposing of such application on taking evidence, that the language of such (said) Section 17 clearly shows that as soon as the Court is satisfied that the tenant has failed to deposit or pay any amount referred to in sub-section (I) or sub-section (2) of Section 17 of the West Bengal Premises Tenancy Act, 1956 within the time specified or within the extended time as may be allowed by the Court or fails to deposit or pay any instalment permitted by the Court within the time, the Court shall order the defence against delivery of possession to be struck out. My attention has been drawn to the order passed by the learned trial Judge in which the learned trial Judge on considering the said application which was not contested by the defendant on the date of the hearing was satisfied that there was no challan showing regular depoist of current or arrear rent. Therefore, according to the Respondent the learned trial Judge had sufficient material before him to pass the impugned order and it cannot be set aside on the ground that before disposing of such application the plaintiff respondent did not adduce any evidence in support of the said petition.
11. On carefully perusing sub-section (3) of Section 17 of West Bengal Premises Tenancy Act 1956 we are of the view that there is nothing to indicate that before disposing of such application the learned trial Judge has to call upon the plaintiff to adduce evidence in support of the said petition.
12. There may, however, be cases where the defendant contests the case of the plaintiff and no order can be passed without taking evidence to be allowed (sic) by the parties the learned trial Judge may call upon the parties to adduce evidence in support of their respective case. But when in a case like this, namely where the defendant did not come forward to contest the application and the learned trial Judge on perusing the record also found that there was no challan for deposit for either current rent or arrears rent then he was justified in passing the order striking out the defence because on the scrutiny of the record the learned trial Judge had sufficient material to come to the finding that the plaintiff defendant appellant did not comply with the provisions of Section 17(1) of West Bengal Premises Tenancy Act.
13. It is true that in the written objection filed by the defendant, the defendant contested the claim of the plaintiff but no challan was produced in Court in support of the petition. Therefore, there was sufficient justification for the learned Trial Judge on 1-7-1982 to pass the order striking out the defence and we are unable to hold that the said order is liable to he set aside only on the ground that the plaintiff did not produce any evidence in support of his case. Therefore, the first contention of the appellant fails.
14. The second contention of the appellant is that the learned Trial Judge did not dispose of the appellant''s application u/s 151, C.P.C. praying for setting aside ex parte order dated 1-7-1982 striking out the defence. It is contended that the defendant appellant alleged in the said petition that the defendant''s lawyer did not post the dates of such hearing in his diary and did not, therefore, communicate the same to the defendant appellant and that is why he could not contest the said application. It is also submitted that the self-same ground was taken by the defendant appellant in his application under 0.9, R. 13, C.P.C. for setting aside the ex parte decree and the learned Trial Judge on being satisfied about the bona fide of the defendant appellant''s case set aside the ex parte decree. It is, therefore, contended if learned Trial Judge considered the defendant''s application u/s 151, C.P.C. on merits, then he should have set aside the said order and given the opportunity to the defendant to contest the plaintiffs claim and would have shown two challans to prove that he had complied with the provision of Section 17(1) of the West Bengal Premises Tenancy Act. Mr Das-gupta has drawn my attention to the lower Court record and submitted that all the challans for the deposits of rent with the rent controller month by month have been filed before the learned Trial Judge and that in supplementary paper book the appellant has indicated in pages 25 to 28 as regards the details of the deposit of rent month by month in the office of the rent controller and the same would show that such deposit of rent except for the month of Falgun 1387 B.S. was made in time and that is why the defendant appellant filed an application on 16-1-1984 for condoning the delay in depositing such rent which was, however, dismissed by the learned Trial Judge and the said order has been affirmed by the High Court in revision. But he points out that regard being had to the decision of the Supreme Court in
15. On behalf of the plaintiff respondent it is, however, urged that by the order dated 4-4-1984 the learned Trial Judge has disposed of the said application u/s 151, C.P.C. by affirming such order and refusing to vacate that order, that the order dated 4-4-1984 clearly shows that he has first affirmed the order dated 1-7-1982 refusing to vacate it and the second part of the order shows that he has refused to condone the delay. It is, therefore, submitted that the defendant appellant''s application u/s 151, C.P.C. has thus been disposed of and the appellant has preferred a revision petition under S. 115, C.P.C. against the same in High Court and S. Bhattacharya, J. has refused to interfere with that order and the defendant appellant has, therefore, appeared to have accepted the said position and did not at any subsequent stage pressed for reopening the matter and the learned Trial Judge has, therefore, taken up the suit on merits and the defendant appellant has cross-examined the plaintiff witnesses and as his defence against the delivery of possession has been struck out did not lead any evidence and he accepted that position and consequnetly it is not open to the appellant to take the plea before this Court that the application u/s 151, C.P.C. for setting aside the ex parte order dated 1 -7-1982 has not been disposed of by the learned Trial Judge.
16. On perusing the order dated 4-4-1984 we find that the learned Trial Judge was considering on that date the application filed by the defendant appellant on 16-1-1984 for condoning the delay in deposit of rent for one month only. It is true that while disposing of such application the learned Trial Judge has refused to vacate the order dated 1-7-1982 and has consequently refused to condone the delay in-depositing the rent for Falgun 1387 B.S. The copy of the order of S. Bhatta-charya, J. clearly shows that before the learned Judge the present appellant took up the position that the application under S. 151, C.P.C. had not been disposed of by the learned Trial Judge as yet. S. Bhattacharya, J. did not have, however, wish to issue any direction upon the learned Judge to dispose of the application on the ground that no such prayer was made in the revision petition to that effect and the revision was directed against the order of the learned Judge refusing to condone the delay in making the deposit of rent for the month of Falgun 1387 B.S. As the prayer for condonation was for delayed deposit with the rent controller, the learned Judge has rejected the revision petition on the ground that in view of the decision in Provabati Chakrabarty v. Satyendra Nath Chatterjee and others reported in 1978 (1) Cal LJ 629 had no such jurisdiction to condone such delay.
17. It is, therefore, clear that the revision petition was disposed of on the supposition that the earlier application u/s 151, C.P.C. for setting aside the ex parte order striking out the defence remained undisposed of. It is however, true that no serious attempt was made by the defendant appellant to press before the learned Trial Judge to dispose of the application u/s 151, C.P.C. filed sometime in 1982. The learned Trial Judge by order dated 4-4-1984 appears to have confirmed that order but this order clearly shows that he was under the impression that against such order dated 1-7-1982 the defendant did not move High Court, nor did he file any application for review of the "order, nor was he able to produce challan of deposit of rent.
18. Even though, the learned Judge was justified in observing that the defendant was not able to produce challan, showing the deposit of rent because up to that date no such challan was deposited by the defendant before the learned Trial Judge, and all those challans have been filed subsequently, but the learned Trial Judge was not correct in observing that no petition for review of the order was filed becuase the application u/s 151, C.P.C. was already on record praying for setting aside the ex parte order striking out the defence. Therefore, the lerned Trial Judge without disposing of such old application filed in 1982 appeared to have affirmed that order on the ground that there was no question of vacating the order after the lapse of more than one and a half years.
19. We are, therefore, of the view that the learned Trial Judge did not apply his mind properly in affirming the order dated 1-7-1982 by the order dated 4-4-1984. When the application filed in 1982 for setting aside the ex parte order striking out the defence was still pending the learned Trial Judge while disposing of a subsequent application filed on 16-1-1984 could not have affirmed that order when such application was for condoning the delay for depositing the rent for Falgun 1387 B.S. He refused to condone that delay and that has been affirmed by the High Court in revision. That part of the order has reached a finality no doubt but the defendant''s original application u/s 151, C.P.C. praying for setting aside the ex parte order striking out the defence had not been taken up on merits at a time before the suit was fixed for final hearing and without disposing of such application, the learned Trial Judge has disposed of the main suit. If he disposed of such application and set aside the ex parte order and the application u/s 17(3) of the West Bengal Premises Act on merits in the light of the challans which have already been filed by the defendant appellant before the learned Trial Judge then the learned Trial Judge would have still the jurisdiction to decide, in view of the Supreme Courtdecision in B.P. Khemka''s case, as to whether he would strike out the defence or-not or would condone the delayed deposit for the month of Falgun 387 B.S. Even if he rejected the petition dated 6-1-1984 to condone the delay in depositing the rent for Falgun 1387 B.S. yet it was still open to him in view of the
20. In that view of the matter we are satisfied that the decree passed by the learned Trial Judge without disposing of the defendant appellant''s application under S. 17(3) has resulted in great miscarriage of justice and the decree is liable to be set aside and the suti is required to be sent back for remand on fresh hearing.
21. Before us the defendant appellant has raised the question of partial eviction and Mr. Dasgupta has urged that his client is agreeable of such partial eviction.
22. When we are sending this matter on remand before the learned Trial Judge it will be open for the learned Trial Judge to consider the question of partial eviction.
23. We are, however, satisfied that the defendant did not produce the challans in Court even when the learned Judge considered his subsequent application dated 16-1-1984 and made delay in filing the challans in Court. He also did not take any appropriate steps to press before the learned Trial Judge to dispose of his application u/s 151, C.P.C. filed in 1982 before the learned Trial Judge disposed of the suit on merits. In the result the appeal will be allowed subject to terms. If the defendant appellant pays to the plaintiff respondent''s advocate-on-record Rupees five hundred as costs and Rs. 750/- being the half of the paper book costs incurred by the respondent within one month from this date, appeal will be allowed, failing which the appeal shall stand dismissed. On complying this order the appeal will be allowed and the judgment and decree shall be set aside and the suit will be sent back on remand.
24. On appeal being allowed, the learned Trial Judge shall, within one from the date of receipt of the record by him, dispose of the defendant appellant''s application u/s 151, C.P.C. for setting aside the ex parte order for striking out the defence and for that purpose may take evidence, if necessary. If, however, he refuses to allow the said application or if allowing such application again struck out the defence he will again decide the suit on merits considering the defendant appellant''s plea for partial eviction without, however, taking any furher evidence but taking into consideration the subsequent event as made out by the defendant appellant before this Court that the son of the widowed sister is now residing elsewhere and there is no present requirement for him.
25. If, however, he rejects the application of striking out the defence, then he shall give first the plaintiff opportunities to adduce further evidence and then the defendant to adduce evidence in support of his defence and shall consider the evidence already on record and such further additional evidence as may be adduced by the parties and shall dispose of the suit on merits in accordance with law. While considering the plaintiff respondent''s plea for eviction for reasonable requirement, he shall consider as to whether the partial eviction of the defendant would satisfy the need of the plaintiff respondent or not. The suit shall in any case has to be disposed of within three months from the date of receipt of the record. No formal decree be made.
Manabendra Nath Roy, J.
26. I agree.
27. Order accordingly.
