A.P. Bhattacharya, J.@mdashThis Rule was obtained on a revision petition by the petitioner against whom a suit for eviction was filed by the
opposite party on the pleading that the petitioner was a monthly tenant and the suit was one to which the provisions of the West Bengal Premises
Tenancy Act, 1956, apply. The uncontroverted position is that the petitioner''s defence against delivery of possession has been struck out u/s 17(3)
of the Act. A preliminary point was raised before the court below as to how far in such circumstances the petitioner (defendant) was entitled to
contest the suit for ejectment. The learned Court referred to the Full Bench decision of this Court reported in Gurudas Biswas Vs. Charu Panna
Seal and Others, and observed that ""the defendant is permitted to contend and show that the plaintiff is not entitled to the decree on the basis of
plaintiff''s evidence in argument. As his defence is struck out he is not permitted either to cross-examine plaintiff''s witnesses or to call his own
witnesses at the trial."" Against this order the instant Rule has been obtained. Mr. Ganguly in support of the Rule submits that the Full Bench
decision of this Court has not been properly appreciated by the trial court. The contention raised by him is that the Full Bench has decided the
point that where a defence as to delivery of possession had been struck out u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, the
defendant could still take the defence of non service of the notice or notices and invalidity of such notices in the trial court as well as in the court of
appeal. He further adds that the Full Bench did not specifically decide the point as to whether in taking such defence the tenant defendant is
permitted to cross-examine plaintiff''s witnesses on the point of non-service or validity of the notice in question so that this point could be decided
by this Court. He further adds that on a reading of the Full Bench decision as a whole there is no room for doubt that such cross-examination to
the limited extent is permissible. It has, therefore, become necessary to refer to the Full Bench decision and appreciate the point which has been
laid down therein. The Full Bench was obviously considering two points and those two points have been framed in paragraph 7 of the judgment.
They are as follows:
1) In our opinion, where a defence as to delivery of possession has been struck out u/s 17 (3) the defendant can no longer take the defence of the
non-existence or invalidity of the notice u/s 13(6) either in the court below or in the court of appeal.
2) In our opinion, where a defendant does not appear in the suit below and take the defence as to the non-existence or invalidity of the notice of
ejectment he should not be permitted to take the defence for the first time in appeal.
2. The court on a consideration of several decisions of this Court has come to the following conclusion on the above two points :
1) Yes can take it means, therefore, and that is clear from the judgment itself that even when defence against delivery of possession had been
struck out the defendant is entitled to take the defence of nonexistence or invalidity of a notice.
2) This will also appear from the answer to point no. 2 framed by the court which is to the effect that the defendant should be permitted to take the
defence as to non-existence (whereby non service of notice is meant) or invalidity of a notice of ejectment.
3. The burden of the decision as I find is that even when the defence against delivery of possession has been struck out as in this case, the
defendant tenant would be entitled to take his defence in respect of non-service of the notice and invalidity of the notice both in the trial court as
well as in appeal even for the first time though not raised in the trial court. That being the position of law laid down by the Full Bench the next
question will arise whether a tenant defendant is entitled to cross-examine plaintiff''s witnesses on the point of non service or invalidity of the notice
in view of the fact that defence in this respect is permissible to the tenant defendant. There is no escape from the conclusion that he would be
entitled to cross-examine plaintiff''s witnesses on the point of non service of notice and invalidity of the notice and on no other point whatsoever.
This appears to be the inevitable conclusion from what had been laid down by Their Lordships in the Full Bench decision to which I have referred.
Unfortunately in paragraph 26 of the said judgment there is an expression which has not been properly appreciated by the lower court. I will
immediately refer to that observation. His Lordship A. K. De, J. delivering the judgment on behalf of the Full Bench has observed as follows in
paragraph 26 of the said judgment :
That being the position in law it would be wrong not to permit the tenant to contend and show, if possible, on plaintiff''s evidence and materials as
are on record both at the trial and also in the appeal stage that the plaintiff is not entitled to the decree prayed for though he would not be permitted
either to cross-examine plaintiff''s witnesses when they gave evidence or to call his own witnesses at the trial if his defence is struck out.
4. The learned trial court in the impugned order has virtually quoted the last few lines of the judgment of this Court which I have just now quoted.
In my judgment the above observation of the Full Bench should be construed in the following manner. It has been observed that the tenant
defendant is permitted to contend and show on plaintiff''s evidence and on materials as are on record that the plaintiff is not entitled to a decree as
prayed for. If a tenant defendant is permitted to that extent it necessarily follows that the tenant defendant can challenge the plaintiff''s testimony on
the point of non service and invalidity of the notices. The plaintiff''s evidence in this respect can be challenged. That includes a permission to cross-
examine plaintiff''s witnesses on the limited point of non service and invalidity of the notice. The observation of His Lordship is made in respect of
the witnesses of the plaintiff in general who gave evidence at the trial. Such witnesses cannot be cross-examined or cannot be permitted to be
cross-examined by the tenant defendant. But this observation does not preclude the tenant defendant from cross-examining only that part of
plaintiff''s evidence or that part of the evidence of plaintiff''s witnesses which relates to the permissible defence, namely, the non service of notice
and invalidity of the notice. No cross-examination on other points would be permissible. It is again significant to note that observation which has
been made in the Full Bench decision was a passing observation and was not a conclusive finding. That is why it is open to this Court to interpret
the judgment of the Full Bench in the manner I have done. My conclusion accordingly is that a tenant defendant whose defence against delivery of
possession has been struck out u/s 17 (3) of the West Bengal premises Tenancy Act, 1956, is still permitted to contend before the court and take
the defence on the point of non service or invalidity of the notice and in doing so the tenant defendant is also permitted to cross-examine plaintiff''s
witnesses and challenge other evidence adduced by the plaintiff confined to the points, namely, the non service or invalidity of the notices which are
required to be served in accordance with law. The tenant defendant would not be entitled to take any other plea or cross-examine plaintiff''s
witnesses on any other point or examine his own witnessees on any point whatsoever. Defence in any event cannot even examine a witness denying
the service of notice or denying facts on the point of invalidity of the notice. In the result, the Rule is made absolute and the impugned order is set
aside and the learned Munsif is directed to hear the matter in the light of the observations made hereinbefore and in accordance with law.
I make no order as to costs.
Let the records be sent down to the court below at once.