Debasish Kar Gupta, J.@mdashThis appeal is directed against the judgment and decree dated August 24, 2012 passed in C.S. No. 568 of 1979. The above suit was decreed on contests with costs against the defendant/appellant. The plaintiff/respondent got a decree for recovery of possession against the appellant by evicting him from the suit premises with a direction upon the appellant to deliver khas possession of the suit premises. The respondent also got a decree for recovery of Rs. 40,950/- against the appellant as damages. The decree of mesne profits was passed in favour of the respondent from the date of institution of the suit till the date of delivery of khas possession of the suit premises in his favour, the quantum of which was directed to be determined in a separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure. The facts of the case are as under:
The respondent was the owner of the suit premises. At the request made by the appellant by a communication dated December 28, 1977, the respondent allowed the appellant to occupy the Flat No. 3 lying and situated, on the ground floor of the suit premises till January 31, 1978 on payment of Rs. 1,000/- towards rent. In the communication under reference not only the request was made to allow the appellant to occupy the Flat under reference till January 31, 1978, there was an undertaking to vacate the above Flat on February 1, 1978. After getting the possession of the Flat under reference, the appellant did not deliver the vacant possession of the same on the basis of his undertaking dated December 28, 1977.
The appellant forwarded four cheques of Rs. 1,000/- each to the respondent towards rent for the months of March, 1978 to June, 1978. The respondent did not encash those cheques. Again the appellant sent Rs. 1,000/- as rent to the respondent in or about September/October, 1978 towards the rent for one month and the respondent refused to accept the same.
2. Since the appellant did not deliver the vacant possession of the Flat under reference in the suit premises, the respondent filed the suit out of which this appeal arises.
3. The defence against the delivery of possession had been struck out under the provisions of Section 17(3) of the West Bengal Premises Tenancy Act, 1956 and as a result of which, the appellant was not permitted to adduce any evidence on behalf of his own.
4. Availing the opportunity of cross-examination of the witnesses of the respondent, attempt was made by the appellant to show that the tenancy was not for a month from January 1, 1978 to January 31, 1978, but for a period of more than one month for which his eviction was not permissible save and except under any of the grounds in accordance with the provisions of Section 13(1) of the West Bengal Premises Tenancy Act, 1956. An argument was advanced on behalf of the appellant before the learned Single Judge that the communication dated December 28, 1977 was not to be construed as a notice to quit, the appellant was a tenant in view of his continuation of possession of the Flat under reference in the suit premises. No notice to quit was served upon him.
5. It was also the case of the appellant that in absence of notice to quit and inaction on the part of the respondent for a long time, the presumption was in favour of waiver of the right of the respondent to continue with the possession of the Flat under reference in the suit premises after January 31, 1978.
6. The appellant also raised the question of lack of jurisdiction of the learned Single Judge to try and determine the suit in view of the valuation of the suit. Argument was also advanced before the learned Single Judge that due to non-obtaining of any leave under Order 2 Rule 4 of the Code of Civil Procedure, the claim of damages in the suit was not permissible. Making a distinction between damages and mesne profits, it was argued before the learned Single Judge that the respondent was entitled to either rent or damages.
7. Considering the fact of dismissal of an appeal by Judgment dated July 29, 2009 in APOT No. 309 of 2008 as also the dismissal of the special leave petition arising out of the above judgment, the learned Single Judge came to the conclusion that the above question was not left open for determination by the learned trial Court at the time of disposal of the suit.
8. After hearing the parties, the learned Single Judge came to the conclusion that the letter of undertaking dated December 28, 1977 clearly laid down that the appellant would vacate the Flat under reference in the suit premises on February 1, 1978. According to the learned Single Judge, no notice to quit under the provisions of Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was required to be served in view of striking out of defence since the P.W. 1 had stated in unequivocal terms that the tenancy was created for one month starting from January, 1978 to the end of that month. According to the learned Single Judge, the valuation of the suit as shown by the respondent in the suit could well be accepted for the purpose of the jurisdiction of the Court since no suggestion contradicting valuation was given in cross-examination.
9. It is submitted by the learned Counsel appearing on behalf of the appellant that the question of jurisdiction of the learned trial Court was left open by a Division Bench of this Court in view of the judgment dated July 29, 2009 delivered in APOT No. 309 of 2008. It is further argued on behalf of the appellant that the case of the respondent should not have been considered in the light of the provisions of Section 13(1)(j) and the suit was not maintainable since no notice had been served upon the appellant under the provisions of Section 13(6) of the West Bengal Premises Tenancy Act, 1956.
10. The learned Counsel appearing on behalf of the appellant relied upon the decision of
11. Drawing the attention of this Court towards the fact of striking out of the defence of the appellant, it is submitted by the learned Counsel appearing on behalf of the respondent that adducing of evidence under Order 2 Rule 4 of the Code of Civil Procedure was not permissible after striking out of defence under the provisions of Section 17(3) of the Premises Tenancy Act. It is also submitted by him that the scope of cross-examination was limited. No suggestion with regard to valuation of the suit was given to P.W. 1 in course of cross-examination. According to him, the issue of jurisdiction was set at rest in view of the judgment dated July 29, 2009 delivered in APOT No. 309 of 2008. With regard to question of valuation of the suit, it is submitted on behalf of the respondent that recovery of possession and mesne profits are two distinct claims. Drawing the attention of this Court towards the observation of the learned trial Court with regard to question Nos. 129 to 137 placed before the P.W. 1, it is also submitted by him that after taking the possession, the communication dated December 28, 1977 was issued at a later part of the evening and as such, the matter was covered under the provisions of Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956.
12. The learned Counsel appearing for the respondent relied upon the decisions of
13. We have heard the learned Counsel appearing for the respective parties and we have given our thoughtful considerations to the facts and circumstances of this case. It is the settled principles of law that in a case where the defence against the delivery of possession of a defendant is struck off, the tenant would not be entitled to lead any evidence of his own and no cross-examination should be permitted travelling beyond the limited objective of pointing out the falsity of the plaintiffs case.
14. Reference may be made to the decision of Modula India (supra) and the relevant portions of the above decision are set out below:
"For the above reasons, we agree with the view of Ramendra Mohan Datta, ACJ, that, even in a case where the defence against delivery of possession of a tenant is struck, off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled:
(a) to cross-examine the plaintiffs witnesses; and
(b) to address argument on the basis of the plaintiff''s case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff''s case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant''s case either directly or in the form of suggestions put to the plaintiffs witnesses."
15. In view of the above proposition of law, the appellant was entitled to cross-examine the witness of the respondent and to restrict his argument on the basis of the case of the respondent. As a result, we find substance in the submissions made on behalf of the respondent that after striking off the defence of the appellant, it was not permissible to reopen the issue of jurisdiction of the learned trial Court in absence of any suggestion in this regard to the P.W. 1. That apart, in terms of the provisions of Order 2 Rule 2 of the Code of Civil Procedure, all the reliefs which could be claimed in the suit should be prayed for. Order 2 Rule 3 of the Code of Civil Procedure provides for joinder of causes of action. A suit for recovery of possession on the basis of the declaration of one''s title and suit for mesne profits or damage may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profits, there may be another. In view of the provisions of Order 2 Rule 4 of the Code of Civil Procedure, such causes of action could be joined and therefor no leave of the Court was required to be taken. Reference may be made to the decision of Shiv Kumar Sharma (supra) and the relevant portions of the above decision are set out below:
"20. In terms of Order 2 Rule 2 of the Code, all the reliefs which could be claimed in the suit should be prayed for. Order 2 Rule 3 provides for joinder of causes of action. Order 2 Rule 4 is an exception thereto. For joining causes of action in respect of matters covered by Clauses (a), (b) and (c) of Order 2 Rule 4, no leave of the Court is required to be taken. Even without taking leave of the Court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one''s title and/or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order 2 Rule 4 of the Code, however, such causes of action can be Joined and therefor no leave of the Court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit wherefor a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. Damages cannot be granted without payment of court fee. In a case where damages are required to be calculated, a fixed, court fee is to be paid but on the quantum determined by the Court and the balance court fee is to be paid when a final decree is to be prepared."
16. In view of the above settled principles of law, we do not find substance in the submissions made on behalf of the appellant that since the respondent/plaintiff did not obtain any leave under Order 2 Rule 4 of the Code of Civil Procedure, he was not entitled to claim damages as well as mesne profits.
17. In view of the distinguishable facts and circumstances involved in this case, the decision of Jayantilal Ojha & Co. (supra) has no manner of application in this case.
18. With regard to the question of failure of the respondent/plaintiff to serve a notice under Section 13(6) of the Premises Tenancy Act, 1956 upon the appellant/defendant, it appears that after considering the deposition of P.W. 1, the learned trial Court came to a conclusion that letter of undertaking dated December 28, 1977 was proved and the above communication clearly laid down that the defendant would vacate the Flat on February 1, 1978. The defence against the delivery of possession being struck off, and no contrary suggestion was given to the P.W. 1 in course of cross-examination. From the deposition of P.W. 1, it was proved before the learned Trial Court that the tenancy had been created for one month starting from January, 1978 to the end of January, 1978. That apart, it was the deposition of the P.W. 1 that after delivery of possession of the Flat under reference in the suit premises to the appellant/defendant, the respondent/plaintiff received the communication dated December 28, 1977 in the evening.
19. Therefore, we do not find any error in the impugned judgment that the grounds for recovery of possession as laid down in Section 13(1)(j) and (k) of the West Bengal Premises Tenancy Act, 1956 had been proved and in such circumstances, no notice to quit was required to be served upon the appellant/defendant under the provisions of Section 13(6) of the West Bengal Premises Tenancy Act, 1956.
20. In view of the discussions and observations made hereinabove, this appeal is dismissed.
21. There will be, however, no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
Ishan Chandra Das, J.
I agree.
