P.N. Mookerjee, J.@mdashThis appeal is by the defendant and it arises out of a suit for ejectment. The suit was instituted on February 13, 1957, and it is, obviously, governed by the West Bengal Premises Tenancy Act, 1956. The ground, taken under the said Act, was that the tenant was guilty of unlawful subletting and, accordingly, was disentitled to protection under the protective provision of the said statute. The learned trial Judge accepted the plaintiff''s case and made a decree in her favour.
2. Before us, two questions have arisen. One is with regard to the legality, sufficiency and validity of the notice of ejectment for purposes of Section 13(6) of the above Act; the other is whether the alleged sub-tenancy has been proved in the instant case and whether it has been proved to have come into existence after the coming into operation of the above statute.
3. In the view, we are taking it will not be necessary to go into the first question, namely, the question of notice, as, in our view, on the second question, the answer must be in favour of the appellant and against the respondent. For finding the alleged sub-tenancy, the learned trial Judge relied strongly upon the evidence of the alleged sub-tenant and also upon Ext. 5, which was stated to have contained an admission of the defendant tenant in writing showing that the alleged sub-tenancy came into existence in August 1956, that is, after the coming into operation of the above statute. It is not disputed that, in order to be an offending sub-tenancy under the above statute, it must be a post-Act sub-tenancy.
4. In our view, however, on the evidence, as it stands, and in the circumstances of this case, the deposition of the alleged sub-tenant does not inspire confidence nor are we satisfied that Ext. 5, upon which reliance was placed by the learned trial Judge for purposes of corroboration and, in fact, for establishing the plaintiff''s case that the alleged, sub-tenancy came into existence after the coming into force of the above statute, was properly admitted into evidence or was admissible into evidence. It does not appear from the records that this document, which was produced at the time of deposition by the alleged sub-tenant as a witness on behalf of the plaintiff landlady, was ever called for from him or that he was ever asked to produce this document. In the circumstances, as a matter of law, this document should not have been allowed to be put into evidence.
5. Mr. Chatterjee, who argued the case with some amount of thoroughness in favour of his client, the respondent placed before us a decision of this Court, reported in (1) Baikuntha Nath Chakravarti and others v. Umanath Chakravarti and others, 88 IC 498, in support of his contention that, so far as documents to be produced by witnesses, they need not be called for from them and there can be no objection in law, if such documents are produced by the witnesses at the time of their deposition without being called for from them.
6. It is true that the head-note lends some support to the above contention, but, as we read the judgment, the said head-note appears to be misleading. As a matter of fact, it is recorded in the judgment of Cuming, J. that the documents in question there were actually called for from the witnesses. The point, therefore, which arises before us, did not arise in the said case. It is true that there are some observations in the judgment of Greaves, J., which may tend to support Mr. Chatterjee''s above contention, but those observations, if they were meant to be so read, would, in our opinion,- and we say too with respect,-go beyond the law & would not be in consonance with the settled practice on the point. They were also, as we have already sufficiently indicated, in the nature of obiter dicta in that particular case, as the point, which arose for consideration there, was whether, where documents have been called for from witnesses, they could be produced by the witnesses at the time of their deposition or had to be filed in court before hand. To that question, obviously, the correct answer was given by the learned Judges, namely, that, so far as documents of witnesses are concerned, law does not require them to be filed in court beforehand but they could be produced by the witnesses at the time of their deposition. But the case is certainly not an authority for the view that, in the case of such documents, they need not be called for from the witnesses. As a matter of fact, as we have already said, the documents in question were actually called for from the particular witnesses in the said case. We would, accordingly, hold that the said decision, cited by Mr. Chatterjee, is distinguishable and does not support his extreme contention and we overrule the same.
7. Once that position is accepted, the learned trial Judge''s judgment cannot stand, as, in our view, the said judgment is primarily based upon the said Ext. 5. We would, accordingly, hold that, in the instant case, it has not been proved that the alleged offending sub-tenancy was really one, which would contravene the statute as its creation after the coming into force of the above statute, or, in other words, that it was a post-Act sub-tenancy, has not been proved. The ground, therefore, on which protection was sought to be refused to the defendant under the above Act, would not stand. That being so, the defendant would be protected under the law and the decree for ejectment, passed against him, would have to be set aside. In this view, we do not deem it necessary to consider the other question, namely, the question of notice or to express any opinion on the scope, effect and consequence or implication of the Full Bench decision of this Court reported in (2)
There will be no order for costs, either in this Court or in the court below.
M.M. Dutt, J.
I agree.
