Banerjee, J.@mdashThe plaintiff appellant instituted a suit for eviction of the defendant respondent from the premises let out to him, on the plea
that the defendant was a defaulter in payment of rent and was not entitled to any protection under the West Bengal Premises Tenancy Act. The suit
was ex parte decreed. Against the ex parte decree the defendant preferred an appeal to the first appellate court. One of the grounds taken in the
appeal was that an application by the defendant for summoning certain witnesses was left undisposed of by the trial court and as such he was not
given adequate opportunity to contest the suit. The first appellate court, although of the opinion that the defendant was guilty of dilatory tactics in
the suit, allowed the appeal and remanded the case for re-hearing, after having had made the defendant to deposit compensatory costs amounting
to Rs. 60/-. After remand, when the case was taken up for hearing, the trial court expressed the opinion that on the pleadings there was no scope
for adducing oral evidence in the suit. Lawyers appearing on either side conceded that to be so and neither side pressed for examination of any
witness. The learned pleader for the defendant merely asked for a little time for argument. Thereupon the court recorded the following order, on
June 29, 1959:-
It appears that on the pleading of the parties there is no scope for any oral evidence in this suit for decision of the issues raised before me. So no
oral evidence is adduced before me. To 6.7.59 for argument.
2. Thereafter, the trial court decreed the suit and passed the following order:-
Ordered that the suit be decreed on contest with costs. The defendant be ejected from the suit premises and he shall vacate possession thereof
within one month from this date in favour of the plaintiff, failing which the plaintiff to get possession through court on execution of this decree. The
plaintiff''s prayer for damages is allowed at the rate of Rs. 951-p.m. since 15.6.57 till the date of recovery of possession. The plaintiff do get 10/ -
as damages tentatively, on which court fees have been paid and would be entitled to further damages on payment of adequate court fees.
3. Against the decree the defendant again took an appeal to the lower appellate court. The lower appellate court again remanded the suit to the
trial court for hearing with the following observations:-
Relying upon these two statements in the plaint and the written statement there remains no scope for any evidence for ascertaining whether the
defdt. was a statutory defaulter or not. But the learned lower court should not have acted so hastily in a case which had to be sent back on remand
on the basis of a ground taken by this defdt. to the effect that he could not get a chance to contest the suit, at the time of previous trial as his
application for citing witness remained undisposed of till the date of peremptory hearing. On that ground alone the Appellate Court had to send
back the suit on remand as the Appellate Court was under impression that the defdt. was denied a chance to contest the suit properly. In the
present case the learned lower court should not have expressed any opinion. Had there been any suggestion from the defdt. regarding want, of
necessity on his part to examine any witness, it would have been proper on the part of the learned lower court to make a note in the order sheet
and to take signature of the learned lawyer of the defdt. No such signature was taken in the order sheet or in the haziras of the witness although
facts and circumstances go to suggest that the learned lawyer of the defdt. submitted to the opinion of the learned lower court or in other words
conceded to the view expressed by the learned lower court. Be that as it may, as there is a plea of payment, and as the rate of rent has been
challenged in the written statement and as there is a plea regarding an agreement between the parties to the effect that any excess payment above
the finally settled rent at the rate of Rs. 70/-would be adjusted finally towards dues of the plaintiff, I consider that it would have been proper on the
part of the learned lower court to give a chance to the defdt. to examine witnesses. Under the circumstance, I have no other alternative, but to send
back the suit on remand again to the learned lower court for rehearing according to law and on the basis of observation made by me in my
judgment above. At the same time, I must say that the attitude adopted by the defdt, is far from satisfactory. If he had any intention to adduce
evidence, then why did he not press for examination of his witness before the learned lower court. I am told by the learned lawyer of the appellant
that he did not press for examinan of his witness before the learned lower court, he was under the impression that judgment or of the defdt. The
should not have entertained such view without any basis and should have acted properly to protect the interests of his client.
Considering all facts and circumstances what I propose to do for the sake of justice is to direct the defdt. to deposit compensatory cost of Rs. 60/-
by 12-1-60.
4. The propriety of the order is being disputed in this appeal, at the instance of the plaintiff.
5. The conduct of a case, namely, examination of witnesses, exhibition of documents, etc., is entirely in the hands ox the parties and their lawyers.
The duty of a court is merely to shut out inadmissible evidence and to prevent abuse of the process of law during hearing. It is no part of the duty
of a court to judge or to suggest beforehand whether the pleadings need or need not be supported by evidence. On the pleadings the following
issues were originally raised:-
(i) Is the suit maintainable in its present form?
(ii) What exactly is the rate of rent?
(iii) Has the alleged notice to quit been served on defdt? If so, is the same legal, valid and sufficient?
(iv) Is the plff. entitled to a decree for khas possession of the suit premises after evicting the defdt. therefrom?
(v) Is the plff. entitled to a decree for mesne profits? If so, how much?
(vi) To what relief, if any, is the plff. entitled?
6. At the re-hearing of the suit after remand issue No. (ii) was recast as hereinbelow set out:-
What is the rate of rent? Irrespective of that, is the defdt. a defaulter so as to lose the protection of W.B.P.T. Act?
7. Since the parties went to trial on definite issues, the election should have been left entirely with the parties whether or not to adduce evidence to
prove or disprove the issues of fact. By an untimely suggestion that it was not necessary to adduce oral evidence, the trial court may have
embarassed the parties and their lawyers and may have dissuaded them from adducing evidence. I view with great disfavour this unfortunate state
of affairs brought about by the trial court.
8. For the reasons aforesaid I do not propose to interfere with the order of remand passed by the court of appeal below and dismiss this appeal.
At the same time I agree with the view expressed by the lower appellate court that the defendant and his lawyer were a good deal to blame in not
adducing oral evidence and in unreasonably succumbing to the suggestion made by the trial court not to examine witnesses. The defendant must,
therefore, compensate the plaintiff for all the troubles thus caused. The cost awarded by the court of appeal below by way of compensation is
wholly inadequate. I, therefore, direct that the defendant must deposit a sum of Rs. 500/- by way of costs suffered by the plaintiff up-to-date. Such
cost must be deposited in the trial court within a period of six weeks from today. Notwithstanding anything hereinbefore contained, in default of
deposit of such cost, within the time hereby allowed, this appeal shall be deemed to have been decreed, the judgment and decree of the lower
appellate court set aside and the decree of the trial court affirmed.
9. I am told that the defendant has already deposited a sum of Rs. 60/-, under the order for costs passed by the lower appellate court. If that is so,
the defendant will be at liberty to deposit the balance, namely, a sum of sum of Rs. 440/-, in satisfaction of the order for payment of costs made by
me.
10. The plaintiff will be at liberty to withdraw and appropriate the costs, if deposited, irrespective of the result of the suit.
11. This appeal is disposed of as hereinbefore stated. There will be no other order as to costs in this appeal. In view of the order passed in the
appeal the alternative application is dismissed without any order as to costs.