Kamakshya Singh Deo v. Modula India — 1982 DIGILAW 341 (CAL)

JUDGMENT 1. THE points that have been raised in this Full Bench Reference arose out of the judgment and order of Mrs. Khastgir, J. passed on November 16, 1981. 2. SUCH points in substance are, whether the defendant whose defence against delivery of possession has been struck out under section 17 (3) of the West Bengal premises Tenancy Act, 1956 would still have the right to cross-examine the plaintiff's witness on all points inclusive of the points in respect whereof such defence has been struck out. The further point is whether, under such circumstances, the defendant a tenant would still have the right to call his own evidence on all points. Mr. Ghosh, however, appearing on behalf of the tenant respondent did not press the point because the learned advocate was of the view that since such a plea in defence was taken away, there could be no sense in calling his own witness on such point. To my mind, Mr. Ghosh has tightly submitted so because there could be no two opinions about it after the defence against delivery of possession is struck out. In the absence of any Issue to that effect the evidence of such witnesses would be of no avail. The learned Judge made the reference at a time when the suit reached the state of cross-examining the plaintiff in the suit for recovery of possession in which the defence against delivery of possession was directed to be struck out under sub-section (3) of Section 17 of west Bengal Premises Tenancy Act, 1956. At that stage the learned advocate appearing on behalf of the defendant contended that leave should be given to cross-examine the plaintiff on all points as set out in the written statement. The learned advocate further asked for leave to examine the defendant and to give evidence. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the defendant and to give evidence. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the plaintiff on all the points taken in the written statement nor could he examine himself on the points as set out in the written statement. 3. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the plaintiff on all the points taken in the written statement nor could he examine himself on the points as set out in the written statement. 3. THE question to be answered by the full Bench has not been formulated by the learned Judge and, accordingly, in the fitness of things the observation of the learned Judge in making the reference may conveniently be set out as follows. 4. THE learned Judge observed: "All that section 17 (3) of the West bengal Premises Tenancy Act does is to deprive the tenant of his defence against delivery of possession under the act. But it cannot and should not be read as a penalty exceeding the boundaries of the Act and taking away the tenant's relief against forfeiture under the Transfer of Property Act. " The Full Bench Judgment reported in AIR 1977 Cal. page 110 held that the defendant could not cross-examine on all points. Similar view had been expressed in the Division Bench Judgment reported in 73 CWN page 365 where it had been held that the defendant tenant whose defence against delivery of possession is struck out under section 17 sub section (3) of the Act, what is struck out is his special defence under section 13 sub-section (1 ). He has the right to contest the suit as part of his right and this part of his right is not only to cross-examine the plaintiff's witness but also to examine his own witnesses on points outside the scope of section 13 of the Act. But the tenant has no right to cross-examine the plaintiff's witness on all points. However the division Bench of this High Court presided over by Mr. Justice M. M. Dutt and Mr. Justice Sharma in the case reported in AIR 1979 Cal. page 332 held that when the defence of the defendant is struck out under the provision of section 17 sub-section (3) of the Act, the defendant will be entitled to cross-examine the plaintiff's witness on all points. He would be entitled to adduce evidence in support of his defence as to service of the notice to quit and of the suit. In other words, the defendant will be entitled to participate in proceedings and make his submission against the plaintiffs case for delivery of possession Mr. He would be entitled to adduce evidence in support of his defence as to service of the notice to quit and of the suit. In other words, the defendant will be entitled to participate in proceedings and make his submission against the plaintiffs case for delivery of possession Mr. Justice A. P. Bhattacharjee in the case reported in 82 C. W. N. page 248 held that :- "A tenant defendant whose, defence against delivery of possession has been struck out under section 17 (3) of the West Bengal Premises tenancy Act, 1956, is still permitted to contend before the Court and take the defence oh points 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 point or examine his own witnesses on any point whatsoever. The Defendant 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 view of the interpretation given by the Division Bench in the case reported in AIR 1979 Cal. page 332 of the Full Bench judgment reported in AIR 1977 page 110 and view of the observation of the Division Bench in the case reported in air 1977 Cal. page 332 to the effect that "it is true that the Supreme court did not express any opinion on the question. But it is apparent that the Supreme Court was inclined to hold that the defendant was entitled to cross-examine the witnesses of the Supreme Court (AIR 1977 S. C. 1436) do not support the observation and in the Full Bench case referred to above namely when the defence of the defendant had been struck out he would not be permitted to cross-examine the plaintiff's witnesses when they give evidence" "I feel that it is my duty to refer this matter to the learned Chief Justice for necessary consideration whether the matter should be considered by a larger bench of this High Court. Under this circumstances I make the necessary reference. " 5. Under this circumstances I make the necessary reference. " 5. IT would appear from the aforesaid that the learned Judge was finding it difficult to deride this case in view of the observation of the said Full Bench decision in the case of Gurudas Biswas vs. Cham Panm Seal and ors, A. I. R. 1977 cal. 110 as appearing in the judgment of a. K. Dey which had the concurrence of Mitra, C. J. and M. M. Dutt, J. who constituted the said Full Bench. The observation of the said Full Bench, inter alia, was to the effect that when the defendant tenant's defence against delivery of possession has been struck out under section 17 (3) of the Act of 1956 he would lose his right to contest the suit and he would not be entitled to cross-examine the plaintiff's witnesses on all points. The further difficulty which stood in the way of the learned judge, sitting singly in deciding the case was that the said observations of the said Full Bench was held to be obiter by M. M. Dutt, J. sitting in the division Bench with Sharma, J. in the case, of Sm. Day a Moyee Sadhukhan v. Dal Singer Singh, A. I. R. 1979 Cal. 332, on that basis the said Division Bench held that when the defence of the defendant was struck out under section 17 (3), the defendant would be entitled to cross-examine the plaintiff's witnesses on all points. 6. THEN again, in the case of JV. C. Moitra v. Bhupendra Kumar Chatterjee 82 c. W. N. 248, another single Bench of this Court held the view that, under such circumstances, the defendant tenant would not be entitled to take any other plea or cross-examine the plaintiff's, witnesses on any point or examine his own witnesses on any such point whatsoever. It would appear that before the learned Judge of the Court below there were conflicting views on the point The latest pronouncement was the view expressed, by the Division Bench decision in Day a Moyee's case (supra)and the other view expressed earlier by another Division Bench of M. M. Dutt and Talukdar, JJ. in the case of Basudev Ganeriwala and ors. v. M\s Cotton Carpentry Works pvt. Ltd. 73 C. W. N. 365 and the observation in support thereof by the said Full Bench in Gurudas Biswas v. Charu Panna Seal and ors. in the case of Basudev Ganeriwala and ors. v. M\s Cotton Carpentry Works pvt. Ltd. 73 C. W. N. 365 and the observation in support thereof by the said Full Bench in Gurudas Biswas v. Charu Panna Seal and ors. A. I. R. 197t Cal. 110. It is not necessary to go into the facts of this case in detail except to put it in a nut shell as follows:-The suit herein was filed in this court in the original side in 1979, inter aha, for decree directing the defendant to deliver up vacant and peaceful possession of the premises being flat No. 3 on the ground floor of premises No 3e camac Street, Calcutta decree for rs. 40, 950/- as meane profits or damages till July 31, 1979 at the rate of Rs75/-per day from February 1, 1978. The defendant filed its written statement denying the averments in the plaint and the claim made therein. From time to time several interlocutory applications were made in the suit in which orders for payment of different sums were made on the defendant, therewith the defence against delivery of possession was directed to be struck out under section 17 (3) of the West Bengal Premises Tenancy Act, 1956. 7. IN an application by the defendant for an order granted leave to the defendant to pay the arrears of rent to the tune of Rs. 15,000/- by monthly installments of Rs. 1000/- along with current rents Mrs. Khastgir, J. delivered a judgment on March. 14, 1980 and there it was argued that the defence under section 17 (3) was liable to be struck out and the plaintiff was entitled to -get an exparte decree. The learned Judge cuter construing the provisions in subsections (2a) and (2b) of section 17 held that the times to make the application expired and, in the facts and circumstances of the case, came to her finding that the defendant was not entitled to any order and made no order therein, 8. THEREAFTER the suit came up before the learned Judge. It appears from this judgment of the learned Judge that after the said application was dismissed by her the defence of the defendant was struck out. Obviously what was meant was that the defence of the defendant against delivery of possession was struck out. THEREAFTER the suit came up before the learned Judge. It appears from this judgment of the learned Judge that after the said application was dismissed by her the defence of the defendant was struck out. Obviously what was meant was that the defence of the defendant against delivery of possession was struck out. It is to be noted and as such recorded that the validity of the order striking out the defence has not been disputed before us at all. In deciding the point involved therein, it is first necessary to go into the question as to what is the scope and intent of the punishment imposed on the defaulting tenant by using the expression "defence against delivery of possession shall be ordered to be struck out". To put in very shortly; what is the meaning of the expression "defence" which is struck out and which is used tin connection there with? Would it include even the right to cross-examine the plaintiff's witnesses on all points 9. THE sub-section reads: "17 (3) If a tenant fails to deposit or pay any amount referred to in subsection (1) or sub-section (2) within the dime specified therein or within such extended time as may be allowed under clause (a) of sub-section (2a), of rails to deposit or any installment permitted under clause (b) of sub-section (2a)within the time fixed therefore, the court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. " 10. IN the case of Debendrd Nath datta v. Satya Bala Dassi, A. I. R. 1950 cal. 217 : 54 C. W. N. 110, 116 it is considered that in a suit the defendant has to enter appearance within certain time. If he fails to enter appearance, two consequences follow one is that the suit is liable to be heard exparte and the other is that the defendant would not be allowed to file his written statement, P. B. Mukherji, J. (as he then was) held that the defendant has the right to cross-examine the plaintiff's witnesses and then to address the court on law and to make submission' on the evidence of the plaintiff's witnesses. The learned Judge followed the decision of Chief Justice Rankin in S. N. Banerjee, vs. Sarwardy, a. I. R. 1928 Cal. 722-32 C. W. N. 10. The learned Judge followed the decision of Chief Justice Rankin in S. N. Banerjee, vs. Sarwardy, a. I. R. 1928 Cal. 722-32 C. W. N. 10. The purpose why the defendant would be allowed to cross examine and to argue is that the defendant thereby may demolish the evidence of the plaintiff which might be unreasonable or untrue. The defendant may also argue that for reasons formulated by him the Court should hold that no decree should be passed in favour of the plaintiff. Applying that principle Mr. Ghose, learned advocate appearing for the tenant defendant argues that an order striking out the defence. . . would put the defendant in the same position where the defendant has not filed the written statement, it does not destroy the defendant's other rights. Mr. Ghosh contends that the defendant's right to cross-examine the plaintiff's witnesses is not dependent on the written statement as such. Even when the suit is heard exparte still the defendant has the right to cross-examine the witnesses and to make submission on law. Mr. Ghose further contends that the effect of striking out defence tantamount to putting the person concerned in the same position where he would have been if he had not filed the written statement at all, and the case was heard exparte. The right to cross-examine in both the cases would remain. That is what is decided by P. B. Mukherjee, J. and to that extent the said decision in Debendra Nath utta vs. Satyabala Dassi, (Supra) is relevant for or our consideration. 11. IT is contended by Mr. Ghose that the expression "defence against delivery of possession to be struck out in section 17 (3) would refer to pleadings and nothing else; otherwise, the language would have been different. The language possibly would have been that "the defendant would not be permitted to appear". The expression used is "the court shall order the defence against delivery of possession to be struck out". It refers to a document. Since the defence has been put forward in the written statement which is a document the same is directed to be struck out or cancelled. In doing so the court does not disentitle the defendant to cross-examine the plaintiff's witnesses on all points. Even though the document goes yet the defendant's right to cross-examine remains. 12. MR. Since the defence has been put forward in the written statement which is a document the same is directed to be struck out or cancelled. In doing so the court does not disentitle the defendant to cross-examine the plaintiff's witnesses on all points. Even though the document goes yet the defendant's right to cross-examine remains. 12. MR. Ghose contends by referring to Debendra vs. Satyabala (Supra)that the right to file a written statement, the right to cross-examine the plaintiff's witnesses and the right to address the court are separate and distinct rights. Such rights are not inter-dependant so that even if the defendant has not filed the written statement, and as a consequence, the suit proceeds exparte, the defendant will still have the right to cross-examine the plaintiff's witnesses and to address the court on points of law as also on the plaintiff's evidence. For this limited purpose Mr. Ghose relied on the said decision. Mr. Ranjan Deb on behalf of the tenant respondent however, disputed the said proposition. According to learned advocate Mr. Deb those are not distinct rights. The entire defence in connection therewith goes and no right remains for cross-examination of the plaintiff's witnesses there could be no point in keeping such right of cross-examination outstanding when his whole defence is struck out. Mr. Ghose then refers to the decision in S. E. Trading Co., v. Olympia trading Corporation, AIR 1952 Cal. 685 which was a case under the 1950 Act. Mr. Deb has strongly relied on it. It says that in an ejectment suit although the primary relief sought is the ejectment there may be other reliefs, like mesne profits, decree for arrears of rent etc. Sarkar, J. (as he then was, later the Chief Justice of the Supreme Court) was of the view that the effect of an order of striking out the defence under section 14 (4) was to preclude the defendant from cross-examining the plaintiff's witnesses. It is submitted by Mr. Ghose that the court has since departed from that view. According to Sarkar, J. if a defence is struck out the right to cross-examine before the court with regard to the prayer for ejectment also goes. It is submitted by Mr. Ghose that the court has since departed from that view. According to Sarkar, J. if a defence is struck out the right to cross-examine before the court with regard to the prayer for ejectment also goes. According to Sarkar, J. the defence is struck out, means that it is taken away along with the written statement meaning thereby that the right to cross examine and to address the court are also gone and the defendant is precluded from defending the suit altogether. It is contended by Mr. Ghose that such a view is an extreme view and should not be followed. 13. MR. Ghose then refers to the decision of Chakraborty C. J. and Sinha j. in the case of D. R. Gallatly v. J. R. W. Gannon A, I. R. 1955 Cal. 409. Mr. Ghose contends that the interpretation given 'toy Chakraborty C. J. to the effect that if the tenant forfeits the special protection he is thrown to the general law. is obviously wrong. If the defence is struck out, all the same, this plaintiff has get to prove his case. That is the statutory requirement. This is a case in which the previous Rent Control Act of 1950 applied. 14. IN the case before us section 13 (1) provides for jurisdictional bar No decree for ejectment can be passed except under the grounds provided therein. Originally the tenants were governed by the Transfer of Property Act which seemed harsh on the tenants and that was why the Rent Acts were enacted in order to confer more rights on the tenants so as to protect them against eviction. Such enactments were made for the benefit of the tenants. Likewise some corresponding rights were given to the landlords but on the whole it is more in favour of the tenants. Now the entire matter is governed by the Rent Acts and there is no field left out. To say that when the defence is struck out the defendant is relegated to the general law would obviously be wrong because that would be tantamount to saying that the recovery of possession thereof would be on the basis of Transfer of property Act alone. If that were so then the provision section 13 (l) would automatically be rendered inactive and nugatory. Chakraborty C. J. by using the said expression viz. If that were so then the provision section 13 (l) would automatically be rendered inactive and nugatory. Chakraborty C. J. by using the said expression viz. 'general' along with the other provisions of the relevant Rent Act, what he meant was that under such circumstances the tenant would lose the special protection conferred by section 12 (1) of the West Bengal Premises Tenancy Rent Control (Temporary Provision) Act (17 of 1950 ). The learned Chief Justice there said: "If the tenant, on being directed to pay the rent month by month, does not do so, the Act quite clearly provides that he will by such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position under the general law". It is to be noted that all that the said section 14 (4) provided is: "If the tenant contends that suit, as regards the claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at the rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within 15 days of the date of the order of the rent at such rate of any month by the 15th day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment ". On the basis of the language used in section 14 (4) the learned Chief Justice gave the above interpretation. The expression "the tenant to be placed in the same position as if he had not defended the claim to ejectment" although is of very wide amplitude yet, to my mind, the special protection of a tenant against eviction conferred by section 12 (1)could not have been taken away by the said sub-section (4 ). The expression "the tenant to be placed in the same position as if he had not defended the claim to ejectment" although is of very wide amplitude yet, to my mind, the special protection of a tenant against eviction conferred by section 12 (1)could not have been taken away by the said sub-section (4 ). Such protection could only be rendered inapplicable to any suit for decree for such recovery of possession if the clauses in the provision could be established by the plaintiff no matter whether the defendant tenant would appear or had not defended the claim to ejectment. If sub-section (4) of section 14 applied that would not by itself take away the protection given to a tenant against eviction under section 12 (1 ). That being the position, under the West bengal Premises Rent Control Act (Temporary Provision) Act, 1950, in my opinion, the above observation of the learned Chief Justice with due respect, cannot be supported. 15. IN the. light of the above decision i shall now discuss the Division Bench judgment in the case of Basudeb Ganeriwala and Ors. v. M\s. Canton Carpentry works Pvt. Ltd., and Ors, 73 C. W. N, 365. in which R. N. Dutt, J.-sitting with Talukdar, J. relied on the above decision in s. B. Trading Company Limited v. Olympia Trading Corporation Limited (Supra)and D. R. Gallatly v. J. R. W. Canon (Supra) both of which were decided under the said 1950 Act. The case before the Division Bench in Basudeb's case (Supra) was under sections 13 and 17 of the West Bengal Premises Tenancy act, 1956 (12 of 1956 ). That was a case which came up from the decision of the learned subordinate judge who did not permit the petitioner tenants to cross-examine the plaintiff's witnesses on all the points under similar circumstances which occurred in the case before Mrs. Khastgir, J. In deciding the said case under section 17 (3) the division Bench relied on the aforesaid decisions which were decided under the 1950 Act. Khastgir, J. In deciding the said case under section 17 (3) the division Bench relied on the aforesaid decisions which were decided under the 1950 Act. The Division Bench in Basudeb ganeriwala's case (Supra) followed and relied on the observation of Chakraborty C. J. Gallatly's case wherein the tenant under such circumstances was to be relegated to is position under the general law; At page 369 the Division Bengh observed :- "We would rather hold that what is struck out is the defence against delivery of possession under section 13 (1) of the Act, The special protection conferred on the tenant under the Premises tenancy Act, 1956 is contained in section 13 (1) of the Act. What is struck out under of possession provided for under the Act, that is the special protection contained in section 13 (1) of the Act. The effect of this conclusion is that even apart from the question of jurisdiction the landlord will have to prove the service of notice of suit under section 13 (6)of the Act of 1956". 16. IN my opinion, the Division bench was not right in its approach in going into the question of defence against delivery of possession being struck out as provided under Section 17 (3)of the Act of 1956. It was proceeding as if it was no longer necessary for the plaintiff to prove the ground or grounds under section 13 (1) of the Act. That will clearly appear from the judgment at page 368 where R. N. Dutt, J. speaking for the Division Bench was discussing another decision of the learned Judge in the case in Satyaban Das y. Mozammal Haq Biswas, an unreported decision of his lordship decided on January 24, 1964. The learned Judge observed: "It was argued before me in the aforesaid second appeal that since the learned Munsiff made a finding that the plaintiff did not reasonably require the premises for his own use and occupation he could not have decreed the suit. The learned Judge observed: "It was argued before me in the aforesaid second appeal that since the learned Munsiff made a finding that the plaintiff did not reasonably require the premises for his own use and occupation he could not have decreed the suit. 1 held there that since the defence against delivery of possession was struck out, the defendant was relegated to his position under the general law and it was not necessary for the Munsif to record a finding about the reasonable requirement of the plaintiff and the finding made was redundant because under the general law namely, under the Transfer of Property Act, the landlord is not required to prove that he reasonably requires the premises for his own use and occupation before he cam get a decree for ejectment". If such an observation as above, has to be supported then, in my opinion, the jurisdictional clause, requiring the satisfaction of the court before passing an order or decree for ejectment would be rendered completely nugatory. R. N. Dutt, J. in the above Division Bench Decision, with due respect, went clearly wrong in his finding that under such circumstances only the notice under" section-13 (6) need be proved and not the ground on the basis whereof recovery of possession has been sought for. 17. THE said Division Bench decision in Basudeb Ganeriwala's case (Supra) could not also be supported in as much as the said Bench, with due respect, failed to appreciate the decision in dea Chand Singh's case, 69 C. W. N. 399 where P. B. Mukherjee, J. discussed the purpose of cross-examination and observe that it was to break the plaintiff's witnesses for the purpose of showing to the court that the evidence that was being produced by the plaintiff was unacceptable and should be rejected. In my opinion, what was set out at page 370 to para 9 was not what was decided by p. N. Mukherjee, J. in the said case. Then again the said Division Bench has also supported the view of P. N. Mukherjee J. in the said case where it was held by the learned Judge that the tenant could get relief under section 114 of the transfer of Property Act even though his defence against delivery of possession had been struck out although the said part of the decision was overruled by another Division Bench decision of this Court. The said Division Bench decision in Basudeb Ganeriwala's case (Supra) was not right in its observation that the tenant might have the right of cross-examination but the same was limited to matters outside the scope of section 13 (1 ). The learned Judges ought to have considered that in, respect of the defence being struck out under section 17 (3) the provision of section 13 (1)would still survive in the statute. Irrespective of whether the tenant would defend the suit or not, the court has got to be satisfied before an order or decree for the recovery of possession could be passed. If that be the position, the court could still protect the tenant because the section still survived in the statute. In other words, the protection provided therein would be survived whether or not the tenant would defend the action. That being so, the very basis of the decision in Basudeb Ganeriwala, 73, C. W. N. 365 is gone and the conclusion which followed therefrom could not at all be sustained. 18. IN my opinion, the expression "defence against delivery of possession" would signify not the whole of the defence but only a part thereof and such part relates to the delivery of possession. That being so, the expression "defence" in the said sub-section must be equated with written statement. Accordingly, what is to be struck out from with the other provisions of the relevant Rent Act, what he meant was that under such circumstances the tenant would lose the special protection conferred by section 12 (1) of the West Bengal Premises Tenancy Rent Control (Temporary Provision) Act (17 of 1950 ). The learned Chief Justice there said: "If the tenant, on being directed to pay the rent month by month, does not do so, the Act quite clearly provides such written statement is the tenant's pleas in defence, in respect of the grounds in the plaint made out by the plaintiff under section 13 (1) of the act of 1956. If the case in the plaint is one relating to reasonable requirement under section 13 (1) (ff), on the basis whereof the defendant's eviction is being sought for, then the facts connected therewith which go to build, the defence of the defendant in the written statement are to be struck out. If the case in the plaint is one relating to reasonable requirement under section 13 (1) (ff), on the basis whereof the defendant's eviction is being sought for, then the facts connected therewith which go to build, the defence of the defendant in the written statement are to be struck out. For example, the pleas of alternative accommodation or proportionate accommodation or that the plaintiff has other suitable accommodation the like would not be available to the tenant. In other words, in respect thereto, he would not be entitled to call his evidence in rebuttal, which he normally would have been entitled to, had his defence against delivery of possession not been struck out by the court. " Take for instance, the case of building and rebuilding under clause (f)on the basis whereof the plaintiff seeks to evict the tenant. In the written statement the defendant might take up the defence that it is not reasonably required by the landlord to build or rebuild or to make substantial additions or alterations or that the substantial additions could be carried out without the premises being vacated and so on under such circumstances, when his defence is struck out under section 17 (3) he cannot lead evidence in rebuttal. To dispute the plaintiff's case on the, basis of such averment in the written1 statement by calling engineers or by himself giving evidence or by calling the neighbours or tenants which he otherwise was entitled to had his defence been struck out to the extent. Similarly, in respect 'of clause (i) the defendant tenant might in his written statement have pleaded an oral agreement in respect of the the claim to ejectment" although is on very wide amplitude yet, to my mind, the special protection of a tenant against eviction conferred by section 12 (1)could not have been taken away by the said sub-section (4 ). Such protection could only be rendered inapplicable to any suit for decree for such recovery of possession if the clauses in the provision could be established by the plaintiff no matter whether the defendant tenant Would payment of the arrears of rent. Such a case in defence would not be substantiated by the tenant at the trial by calling his evidence to establish the same when his defence against delivery of possession has been struck out. Such a case in defence would not be substantiated by the tenant at the trial by calling his evidence to establish the same when his defence against delivery of possession has been struck out. Likewise, in the case where the plaintiff alleges sub-letting and on that basis has framed his suit, the defendant tenant would not be allowed to make his defence in denial of the fact thereof by calling, an independent witness or his neighbours or by ' calling himself to establish that the person concerned occupying was not his sub-tenant but was actually his licensee or guest for a temporary period. 19. ACCORDINGLY, it is quite obvious that the scope of cross-examination is of " a very limited nature. Hardly much can be established by such cross-examination. Even under such circumstances possibility cannot be ruled out on behalf of the defendant, for obtaining admissions from plaintiff's witnesses by such cross-examination and thereby the plaintiff's case for recovery of possession can be successfully demolished. By such cross-examination the veracity of the witnesses called on behalf of the plaintiff might be tested and the case might be correctly decided by court. It is to be noted that even when the defence is ordered to be struck out and the trial proceeds the court suo motu can cross-examine the plaintiff's witnesses to ascertain the correct position if the court so thinks fit. Accordingly, the cross-examination of the opponent's witnesses stands on a separate footing quite distinct from whether the defence is struck out or not. 20. THE expression "and the court shall proceed with the hearing of the suit" is not to be found under the previous act of 1950 under Section 14 (4)thereof. There the expression used under section 14 (4) was "and the tenant to be placed in the same " position as if he had not defended the claim to ejectment". In my opinion, the legislature made a conscious departure from the previous enactment by making the provision in section 17 (3) less rigorous. Section 14 (4) in that context would suggest that under such circumstances the defendant would not be able to defend the claim to ejectment. Under section 17 (3) however, the statute becomes silent regarding the defendant after his defence is struck out except to say that the court shall proceed with the hearing of the suit. Section 14 (4) in that context would suggest that under such circumstances the defendant would not be able to defend the claim to ejectment. Under section 17 (3) however, the statute becomes silent regarding the defendant after his defence is struck out except to say that the court shall proceed with the hearing of the suit. That being the position, in my opinion, it would not be safe to apply the observation made in the decision under the 1950 Act or to rely thereon in deciding the cases under section 17 (3) of the Act of 1956, Mr. Kapur Leading Mr. Deb contends that the Supreme Court has dealt with a similar clause as used in section 14 (4)in the case of Paradise Industrial Corporation v. Kiln Plastics Products. A. I. R. 1976 S. C. 309 and has observed therein that in effect both meant the same thing. In my opinion, the said observation in the said supreme Court decision has no application to the facts of the case before us. Here We are considering and comparing the two statutory provisions in which the expression "defence struck out" appears in both the provisions. But before the Supreme Court the consideration was whether the judge of the small Causes Court went wrong in using the words "defenses to he struck off" instead of the words "he shall not be entitled to appear in or defend the suit except with leave of the court, which leave may be granted subject to such terms and conditions as the court may specify". The Supreme Court held that in effect both meant the same thing. The Supreme Court there looked into the substance of the matter and as such made the observation: viz. "the high Court has missed the substance and chased the shadow". There the Supreme Court was only considering the form of the order that was passed But our consideration is interpretation of the two statutory provisions which, in substance appear to be similar but where a significant departure is made by the legislature in the language thereof. 21. BY deleting the said deeming clause in section 14 (4) in enacting the corresponding provision in 1956 Act the legislature must have purposely made the change and must have intended to make the punishment a little less rigorous than what it stood before under the 1950 Act. 21. BY deleting the said deeming clause in section 14 (4) in enacting the corresponding provision in 1956 Act the legislature must have purposely made the change and must have intended to make the punishment a little less rigorous than what it stood before under the 1950 Act. The legislature must have intended that the punishment should be lessened by allowing the tenant to otherwise participate in the trial of the suit subject of course to the limitation imposed as provided therein. The extent of punishment under sub-section (3) is only to take away the defence and not further than that. Keeping in view the previous provision whereby the punishment imposed was not only to take away the defence but also to debar him from participating in defending the claim for ejectment by using the expression "and the tenant to be placed in the same position as if he had not defended the claim to ejectment" I am of the opinion that the expression "as if he had not defended the claim to ejectment" signified that he could not have defended the claim to ejectment. Under such circumstances, the question of cross-examination of the plaintiff's witnesses could not have arisen in any event. In my opinion, the difference in the language of the two enactments is of substance and cannot be ignored. None of the decided cases have ever considered the scope of sub-section 17 (3) from the above point of view. In my opinion, the decisions based on section 14 (4) of the old Act can not and should not be relied on in deciding the scope of section 17 (3 ). 22. IF the extent of punishment imposed by section 17 (3) is considered without reference to the earlier decision based on the 1950 Act then the meaning of the expression "defence" in section 17 (3) must necessarily be held to refer to the written statement in which various pleas in defence are taken against the various averments in the plaint including those relating to the grounds mentioned in section 13 (1) of the Act of 1956. Accordingly, when section 17 (3)provided for striking out the defence by the court in respect of a particular plea the same must be with reference to the written statement where such plea is taken and where from the issues in connection therewith would be raised. Accordingly, when section 17 (3)provided for striking out the defence by the court in respect of a particular plea the same must be with reference to the written statement where such plea is taken and where from the issues in connection therewith would be raised. If such a plea is taken away the issue settled in connection therewith is necessarily rendered inactive and the same would along with plea, and likewise, all documents discovered and inspected in connection with such plea would also be rendered inactive at the trial. In my opinion, a strict meaning must be given to the language used in sub-section (3) particularly when the legislature has consciously chosen to remain silent and avoided using any expression touching the appearance of the tenant at the trial after his defence is struck out. At the end of the sub-section whet is simply added is "and shall proceed with the hearing of the suit." 23. SEVERAL decisions of the Supreme court have been cited before us but the same are not exactly on the point which is canvassed before us except as observed here in below. I shall, however, discuss them in detail to show how the supreme Court has dealt with such similar questions which arose before that court in somewhat different context the said discussions in the said cases are bound to influence our mind to some extent but save and except that, the same do not go to decide the question before us and, accordingly, the question should be decided on the basis of the interpretation of the relevant provisions of the 1956 Act and the decided cases touching the point directly. 24. IN the case of K. K. Chari v. R. M. Seshadri. A. I. R. 1973 S. C. 1311 the Supreme Court observed that the satisfaction of the court must be there before the parties could invite the court to pass an order for eviction although the manner of such satisfaction might differ in different case. The materials must be there and the court must apply its mind in making the order for eviction of the tenant. In that case the Supreme Court was considering the validity of a compromise decree for eviction of the tenant under Tamil nadu Buildings (Lease and Rent Control) Act (18 of 1960 ). The materials must be there and the court must apply its mind in making the order for eviction of the tenant. In that case the Supreme Court was considering the validity of a compromise decree for eviction of the tenant under Tamil nadu Buildings (Lease and Rent Control) Act (18 of 1960 ). On behalf of the plaintiff landlord relience as been placed on the decision in the case of Sm. Bela Das vs. Sarrwendra Nath Bose. A. I. R. 1975 S. C. 398. That case has been decided on section 11 A of the Bihar Rent Act, The said provision has been set out in another report in the case of Bisvanath Prasad vs. Shanti devi A. I. R 1978 Patna, page 10 at p 12 thereof 25. IN the said case of Smt. Bela Das and Drs. vs. Samaxendra Nath Bose, (Supra) the Supreme Court has made certain observations at page 400 which should require consideration. That was a case where the plaintiff applied for directing the defendant to pay the arrears current and future rents under the provision of section 11 A of the Bihar act; of 1947. The defendant resisted the same on the contentions that besides the plaintiffs, there were other landlords. An order was made directing the defendant to make the payment. The defendant, however, defaulted in complying with the said order and as a result the defence of the defendant as against ejectment was struck out and the suit. was taken up for exparte hearing. 26. THE defendant tried to obstruct but failed. The plaintiff gave evidence and the court being satisfied that the relationship of landlord and tenant existed passed an exparte decree, directing eviction. An appeal was preferred but the same was dismissed. There was a second appeal in the High Court at Patna. The single Judge allowed the appeal and remitted the case to trial court for fresh trial on evidence. The plaintiff-appellant then preferred an appeal to the supreme Court. The High Court in the second appeal rejected the contentions of the defendant to challenge the legality of the order under section 11a as also the order striking out his defence as against ejectment but the High Court took the view that there was denial of relationship of landlord and tenant and that the plaintiffs were 16 annas landlord in of the said tenancy. Therefore, the order striking out the defence against ejectment of the defendant qua tenant could not prevent him from contesting the suit on the question of title 27. THE Supreme Court held that the high Court was in error in applying the principles of law to the facts of that case. Such a defence that he was not the tenant was pretence. The Supreme court found that the defendant had admitted that he was the tenant under the plaintiffs. It was not a case of denial of relationship of landlord and tenant between the parties. The purported pica that was raised was Qua Tenant and not dehors it. At page 400 of the report, the supreme Court observed: "In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a. tenant and on its striking out 10 was struck out as whole. The hearing of the suit exparte, was, therefore, legal and valid. " 28. I do not see how this case can be relied on in support of the connection that the Supreme Court held that tinder such circumstances, the entire defence would be struck out. The Supreme Court did not hold so. The Supreme court rejected the view taken by the high Court and upheld the order of the munsif and of the Court hearing the first appeal who struck out not only the defence of the defendant against ejectment but also the defence as regards the denial of the relationship of laniard and tenant. To my mind, the Supreme Court used the expression "whole defence" in that sense, which according to the supreme court, was rightly rejected in the facts of that case because the facts revealed that the relationship of landlord and tenant admittedly existed. Accordingly, it must be held that the said Supreme Court decision could not be of any assistance in deciding the case before Moreover, it is not always right to rely on the observation of the Supreme court which are made in constructing other State Acts and to apply the same to the facts involved herein, particularly when the language of the different Statutes are not in pari materia. To my mind, in any event, that case did not decide anything touching the right of cross-examination or the right of argument after the defence against delivery of possession would be struck out. There the whole defence related to the defence against ejectment and also the defence denying the relationship of landlord and tenant, both taken together. In case of paradise Industrial Corporation vs. Kiln plastics Products. A. I. R. 1976 S. C. 3c3, the case relates to a Bombay Act, the provision whereof, inter alia, is that if the defendant does not comply with the order for deposit of the amount he would not be entitled to appear in or to defend the suit except with the leave of the Court. There the learned Judge of the Small Causes Court in his order used the expression "defence to be struck out" instead of using the expression which appeared in the said Bombay Act, viz, that "he shall not be entitled to appear in or to defend the suit except with the leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify'' 29. IN my opinion, the above observation of the Supreme Court in Paradise industrial Corporation's case (supra)requires careful consideration. It would appear therefrom that the matter came up before the Supreme Court from an order made in application under Article 227 of the constitution, by which the high Court not only set aside the exparte decree passed by the Court of Small causes Court, Bombay in a suit for eviction and rent but also dismissed the suit. itself. There also the defendants ware in arrears of rent and, accordingly, a notice to quit was served on the defendants and an application under section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for fixation of standard rent was filed. It was thereafter that the High Court, the learned single Judge set aside the decree passed by the Small Causes Court on 6th August, 1969, as also the decree passed by the Appeal late Bench and dismissed the suit. It was thereafter that the High Court, the learned single Judge set aside the decree passed by the Small Causes Court on 6th August, 1969, as also the decree passed by the Appeal late Bench and dismissed the suit. The Supreme Court described such a conclusion as extra-ordinary in as much as under Section 11 (4)of the Act the only order that could be passed was an order directing "that if defendant fails to comply with any order made as aforesaid, within such time, as may be allowed by it, he shall not be entitled to appear in or defend the suit except with the leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify". It was observed that the section did not authorize the court to strike off the defence straightway 30. IN the above context the Supreme court, in my opinion, observed that striking out of the defence and making an order to that effect that the defendant would not be entitled to appear in or to defend the suit both meant the same thing. In the above context the Supreme court also observed that the language of section 11 (4) of the Bombay Act and that of the provision of Order 11 Rule 21 of the Code of Civil Procedure would mean the same, thing. What the Supreme Court meant. by the above expression would be further clarified if the provision of section 11 (4) of the said bombay Act is considered. There it is inter olio, provided that if the Court is satisfied that the tenant is withholding the rent on the grounds mentioned the rein the Court may make an order directing the tenant to deposit in Court forthwith such amount of the rent as the Court would consider to be reasonably due the landlord of such amount as the Court might specify. It is further provided in the Section that the Court may also direct that if the tenant would fail to comply with any such order the tenant would not be entitled to appear in or to defend the suit except with the leave of the Court which leave may be granted subject to such terms and conditions as the Court might specify. The question before the Supreme Court was whether under such circumstances the learned judge of the Small Causes Court was justified in using the words defaces to be struck out" without using the words as mentioned in the said provision, viz, "he shall not be entitled to appear 1 in or defend the suit except with the leave of the Court, which leave may be' granted subject to such terms and conditions as the Court may specify" In that context the Supreme Court did not find any difference in the word? 'defence to be struck out' and justified the use of the said words in the said order and held that the order was not illegal or without jurisdiction. It was held that such an order squally fell within the ambit of section 11 (4) and the Small causes Court Judge was competent to make the said order. The Supreme court observed that the Court was justified in directing striking out of the defence and in fixing the suit for exparte hearing because the sum directed was not deposited. The Supreme Court took into consideration the fact that the exparte decree already passed by the court was not sought to be set aside; It is to be noticed that the observation relating to the similarity of the two expressions was made out In the context as to whether the defendant was entitled to appear and cross-examine the plaintiff's witnesses when his defence Was directed to be struck out, but such observation was made, and the same applied in relation to the language used tin sec. 11 (4) of the said Bombay Act. The supreme Court noted that the words "striking out defence" are very commonly used by the lawyers. 31. IN my opinion, such observation should not be applied to the instant case where the point has come up directly for consideration and since such would depend on the interpretation of the words used in Section 17 (3) of our Act. compared to the repealed enactment of. 1950. 32. BE that as it may, another very significant observation has been made by the Supreme Court in Paradise Industrial Corporation Case (supra) where the supreme Court incidentally has observed: "Indeed one may even say that the phrase the defence to be struck off 'or' 'struck out' is more advantageous from the point of view of the defendants. 1950. 32. BE that as it may, another very significant observation has been made by the Supreme Court in Paradise Industrial Corporation Case (supra) where the supreme Court incidentally has observed: "Indeed one may even say that the phrase the defence to be struck off 'or' 'struck out' is more advantageous from the point of view of the defendants. Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him whereas if it is ordered in accordance with Section 11 (4)that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage" The above observation is no doubt an obiter in the sense that it was not necessary for the Supreme Court to have said so in deciding the said case but even an obiter of the Supreme Court has binding force on the High Courts if the same would clearly lay down a proposition of law. In the context of the said bombay case such an observation was made and, in my opinion, the provision in section 11 (4) of the said Bombay act is of greater consequence than the provision of Section 17 (3) of our Act in as much as in the Bombay Act under such circumstances the defendant was not entitled to appear in or defend the suit except with the leave of the Court. If the Supreme Court observation could go to that length then I see no reason why such as observation should not be applied in the case before us. Under the bombay Act there is a total restriction imposed even in the matter of appearance by the defendant without the leave of the Court but in spite thereof the supreme Court thought that for the purpose of cross-examination of the plaintiff's witnesses such restriction could not stand in the way. As against that in so far as section 17 (3) is concerned the restriction imposed therein is of a special nature and it is provided that if the defence is struck out the hearing of the suit will proceed. 33. As against that in so far as section 17 (3) is concerned the restriction imposed therein is of a special nature and it is provided that if the defence is struck out the hearing of the suit will proceed. 33. IN view that I have taken as aforesaid I do not think that there is much substance in the contention of Mr. Kapur that the above observation of the Supreme Court relating to the right of the defendant to cross-examine the plaintiff's witnesses, is neither a ratio decided nor an obiter but the same proceeded on, the baste of an imaginary proposition which had no basis in the context of the ease before the Supreme Court. 34. IN the case of Babbar Sewing machine Co. v. Triloki Nath Mahajah, a. I. R. 1978 SC. 1436 the Supreme court dealt directly with a case issuing under Order XI Rule 21 of the Code of civil Procedure. There the Court made an order to produce the documents the same not having been complied with directed the defence to be struck out. In that case the Supreme Court held on the facts involved therein that the order of the trial Court striking out the defence was liable to be set aside. There the question was raised as to whether the defendant was still entitled to cross-examine the witnesses of the plaintiff but the Supreme Court refrained from expressing any opinion on the question. At page 1441 the Supreme Court observed : "It was further contended that the high Court was in error in observing that "in view of the clear language of o. XI. R. 21 the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of O. XI R. 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant be placed in the same position as if he. had not defend end". This indicates that once the defence is struck off under O. XI R. 21, the position would be as if the defendant had not defended and accordingly the suit would proceed exparte. had not defend end". This indicates that once the defence is struck off under O. XI R. 21, the position would be as if the defendant had not defended and accordingly the suit would proceed exparte. In Sangrant Singh v. Election Tribunal (1955)2 SCR 1 : ( AIR 1955 SC 425 ) it was held that if the Court proceeds exparte against the defendant under O. IX R. (6)the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff's suit. Every Judge in dealing with an exparte case has to take care that the plaintiff's case is, at least, prima facie proved. But as we set aside the Order XI r. 21 this contention does not survive" for our consideration. We, therefore, retrain from expressing any opinion on the question". It is true that the question involved herein has not been gone into or answered by the Supreme Court in Bihar Sewing Machine Co's case (supra)but the interpretation given by the Supreme Court in that case regarding the observation in Sangram Singh's case (supra) must be taken note of and applied accordingly if the same would otherwise be applicable. Prom the passage as set out above it would appear that the supreme Court is of the view that in sangram Singh's case it was held that if the court would proceed exparte against the defendant under Order IX Rule 6 (a) of the Code, the defendant was and would still be entitled to cross-examine the witnesses examined by the plaintiff. 35. MR. Kapur contends that such has not been held in Sangram Singh's case but the Supreme Court in the above decision has read Sangram Singh's case in the manner as indicated in the above passage and that being so, the supreme Court's own explanation about its own judgment must be read in the light. Accordingly it can legitimately be held that in case where the court would proceed exparte against the defendant the defendant would still be entitled to cross-examine the witnesses examined by the plaintiff. Accordingly it can legitimately be held that in case where the court would proceed exparte against the defendant the defendant would still be entitled to cross-examine the witnesses examined by the plaintiff. The question which requires to be examined is whether under such circumstances, when the defence is directed to be struck out under Section 17 (3) the hearing of the suit" to that extent can be said to be proceeding exparte as the concluding portion of the said sub-section suggests, it so the defendant could legitimately claim to be entitled to cross-examine the plaintiffs witnesses on such points also mr. Kapoor leading Mr. Ranjan Deb submits that the Division Bench in Days moyee's case (supra) straightway referred to the decisions in the above two supreme Court cases in Paradise Industrial Corporation's case (supra) and in babbar Sewing Machine Company's case (supra) and come to the conclusion without even considering or analysing the effect of the said decisions or the provisions of section 17 (3) of the principles involved herein that under the circumstances, the defendant had the right to cross-examine the plaintiff's witnesses. Mr. Kapur submits that such a conclusion is not justified particularly when the Supreme Court in Babbar Sewing Machine Company's case (supra)specifically stated that such a point was not decided therein. In Daya Moyee's case M. M. Dutt, J. sitting with Sharma j actually took into consideration the fact that the Supreme Court did not express any opinion on the question but what the learned Judges took note of was that it was "apparent that the Supreme Court was inclined to hold that the defendant was entitled to cross-examine the witnesses of the plaintiffs' and on that basis took the further view that, in any event, the observation made in the pull Bench in Gurudas Biswas v. Chart Panna Seal (supra) was not supported by the Supreme Court decision. With respect I am also inclined to take the view for the reasons as stated in the said division Bench case as also the reasons given by me as set out hereinabove and also here in below. In my opinion, the Division Bench in Daya Moyee's case (supra) has made the correct approach and has laid down the. Principles correctly. 36. MR. In my opinion, the Division Bench in Daya Moyee's case (supra) has made the correct approach and has laid down the. Principles correctly. 36. MR. Ghose submits that the right to cross examine, the opponent's witness could riot have been and as such is not provided in the West Bengal Premises Tenancy Act of 1956. Such rights are laid down under the general law viz, The Code of Civil Procedure, the evidence Act and the Rules of the original Side of this court relating to the conduct of' the suit at, the trial. Therefore, the right to cross-examine the plaintiff's witnesses cannot be taken away by the provisions made in the West Bengal Premises Tenancy Act, 1956 particularly when the same has not been specifically so taken away. The main purpose of cross-examination to assist the court in arriving at the truth of a fact and in that process it is the court which can always allow the opponent to cross examine a witness to elicit the truth. The court is the ultimate authority who has to decide on the basis of the evidence on record as to whether the plaintiff has been able to prove his case prima facie and whether the prima facie evidence that a decree could be passed on the basis thereof. I have used the expression 'prima facie case' and 'prima facie evidence' because such expressions, I have noticed, have been used by the supreme Court in the case of Babbar sewing Machine Go's case (supra) and also in the Division Bench decision in daya Moyee's case. Possibly to my mind, such an expression would signify the minimum evidence that is required to be adduced to enable a court taking an exparte undefended matter by way of proof of the case in order that it might be satisfied in passing a decree on the basis thereof. To my mind, the expression "exparte" is synonymous with undefended as against defended case and would include a case where in an undefended case the defence has been struck out which would mean that the written statement or a part thereof has been directed to be struck out. Under such circumstances, the defendant can always come up before the court and ask for leave to cross-examine the plaintiffs witnesses without defending the same. Under such circumstances, the defendant can always come up before the court and ask for leave to cross-examine the plaintiffs witnesses without defending the same. What he wants to do under such circumstances is to show to the court that the plaintiff who is adducing evidence is trying to say something which is not true, taking advantage of the position that the defendant is not defending the action. Thereby he is trying to assist the court in assessing the plaintiffs case in order to arrive at its satisfaction whether or not a decree could be passed in favour of the plaintiff even in the absence of the defendant's defence. The rules of the Original Side contemplate, such a situation. According to the interpretation given by the Supreme Court decision referred to hereinabove such appears to be the view of the Supreme court as well. It is not that by such process the defendant would be allowed to make any suggestion to the plaintiff s witnesses on the basis of the defence made out in the written statement which had been directed to be struck out nor can the court under such circumstances rely on such suggestion as was sought to be made by the court below in Day a Moyee's case. If the court by itself, on its. own accord could put any question to the plaintiff's witnesses in order to elicit the truth, I do not see any reason why it could not allow the defendant to cross-examine the plaintiff's witnesses particularly when he is better posted with the facts and how the matters might differ under either circumstances. As already observed section 13 (1)of the Act of 1956 restricts the court's powers to pass an order or decree for the recovery of possession of any premises in favour of the landlord against tenant except on the. grounds enumerated thereunder. One or more of the grounds must be there on the basis there of the landlord would be entitled, to proceed in the ejectment proceeding. Unless one or more of the grounds as enumerated in the section would be established by cogent evidence and the, court would be satisfied in regard thereto the court would not have jurisdiction to pass the decree for the recovery of possession against the tenant and' in favour of the landlord. Unless one or more of the grounds as enumerated in the section would be established by cogent evidence and the, court would be satisfied in regard thereto the court would not have jurisdiction to pass the decree for the recovery of possession against the tenant and' in favour of the landlord. These are jurisdictional facts which the plaintiff must prove in order to succeed in the suit for recovery of possession. (See K. K. Chari v. R. M. seshadri, A. I. R. 1973 S. C. 1311 ). The satisfaction of the court is a prerequisite for the order of eviction. In my opinion, the grounds which have been enumerated in section 13 (1) are not the defence against delivery of possession although the said expression no doubt directly relate to the same, What the legislature intended! was that where the tenant would fail to carry out his obligation to pay rent or the equivalent amount as to be determined, the tenant would forfeit his right to proceed on the basis of his defence which he made out in his written statement and against delivery of possession with the result that the plaintiff under such circumstances would still have: to satisfy the court on cogent evidence and would have to prove the same to take any part in the proceeding; the right to cross-examine the plaintiffs witnesses and the right to make his submission before the court or to call his own witnesses. It is contended that the legislature has intended to debar him completely from putting up any sort of defence directly or indirectly on his failure to perform his obligation as provided under section 17 (3 ). If his defence is specifically stated to be struck out how could he claim to have the right to cross-examine the plaintiff's witnesses which is a part of his defence and which he has lost. If that would be permitted then there could be no meaning to provide for the striking out of the defence of the defendant qua his right as a tenant, Mr. Ghose on the other hand contends that what has been struck out is his defence against delivery of possession. In spite thereof he could defend the plaintiffs suit. To that the plaintiff cannot object. Ghose on the other hand contends that what has been struck out is his defence against delivery of possession. In spite thereof he could defend the plaintiffs suit. To that the plaintiff cannot object. The tenant has a right to say that the plaintiff's case is not true and the witnesses adducing evidence are not speaking the truth. For that purpose he need not rely on his written statement, nor on the documents disclose on his. behalf in that connection but could, if possible establish on the basis of the plaintiffs own evidence by obtaining admission or otherwise, that the court should not be satisfied under the circumstances to rely thereon and to pass a decree for recovery of possession. If he would make suggestion to the plaintiff or his witnesses and if the same would not be established thereby the court necessarily would not rely thereon but all the same, he would not be deprived of this opportunity to cross-examine the witnesses. 37. I shall not repeat what have already observed here in above except to say that the argument advanced by Mr. Ghose is acceptable to me. Under such circumstances; the cross-examination would have a very limited scope which is to be restricted only against the plaintiffs case. It cannot be directed to establish his own defence relating to be struck out. To my mind, when the defence against delivery of possession is directed to be struck out the matter goes back to the position when the defendant entered appearance after service of the writ of Summons on him. It is as if, from that stage onwards, he did not tike step in the matter, in other words, the matter proceeded exparte. Under such circumstances the recovery of possession could only be obtained by the plaintiff upon satisfactory proof of the ground or grounds enumerated in section 13 (1) of the Act subject to the proof of other matters required by law to be proved. Such other matters relate to averments in the plaint in respect whereof the averment in the written statement remain untouched even after the defence against delivery of possession is directed to Be struck out and the matter would remain a contested one to that extent. What is emphasised is that when the court directs the defence to be struck out it does not make an order in the, air. What is emphasised is that when the court directs the defence to be struck out it does not make an order in the, air. It makes the order to that effect so as to effect the defendant's defence in the written statement. 38. IT is sought to be argued that in view of the drastic changes made in the provision of Order VII Rules 1 and 4 (4) of the Code, by the amendment Act of 1976, the position now is that, where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the court may in its discretion, out, it was not permissible for the trial court to spell out the defence case from suggestions made on his behalf during cross-examination of the plaintiff's witnesses. The learned Judges of the Division Bench held that it was a well-established principle of law that suggestions unless admitted are not evidence and cannot be relied on. In my view, in case after his defence is struck out, the defendant tenant is still allowed to cross-examine the plaintiff's witnesses, same would be in effect allowing him to assert his defence against delivery of possession. I have already pointed out that the grounds referred to in sub-section (1) of section 13 of the West Bengal Premises tenancy Act, 1956 looked at from one stand-point set out the grounds on which the landlord may recover possession of a premises which is subject to the provisions of the said Act. From Another stand-point the sub-section (1) of section 13 are for protection of tenants inasmuch as except on the grounds referred to in the said subsection, the tenants ate not liable to be evicted and to deliver possession of the premises in their possession Therefore, in ejectment suit, the cross examination of the! plaintiffs witnesses on behalf of the defendants would be for impeaching the plaintiff's oral evidence regarding the ground's for recovering possession and the service of the notice of suit. In case the defendant successfully demolishes by cross-examining the plaintiff's witnesses, the court may find that the plaintiff landlord has not made out grounds for recovering possession of the suit premises and that the defendant tenant was still entitled to enjoy protection against eviction. In case the defendant successfully demolishes by cross-examining the plaintiff's witnesses, the court may find that the plaintiff landlord has not made out grounds for recovering possession of the suit premises and that the defendant tenant was still entitled to enjoy protection against eviction. This would be plainly inconsistent with the court's order striking out the defence of the defendant against delivery of possession. 39. The learned advocate for the defendant tenant did not seriously urge that after his defence is struck out under S. 17 (3), the defendant would be still entitled to adduce evidence. The Division Bench in dayamoyee Sadhukhan v. Dal Singer Singh (supra), while recognizing the right of cross-examination has practically ruled out the admissibility of questions by way of suggestions to plaintiff's witnesses in course of their cross-examination. Therefore, in case while cross-examining the plaintiff's witnesses the defendant fails to elicit any admission from the plaintiff's witnesses, he would have no chance to impeach the accuracy and credibility of the plaintiff's witnesses by adducing the substantive evidence. This would lead to a very incongruous position in law. In my view, to recognize the right to cross-examine by a tenant whose defence had been already struck out would be in effect to permit him to assert his defence against delivery of possession and without written statement contest the plaintiff's prayer for delivery of possession, i. e. recovery of possession of the premises. Therefore, the very object of enacting S. 17 (3) of the West Bengal Premises Tenancy Act, 1956 would be defeated. Without complying with the provisions of sub s. (1), (2), (2a) of S. 17 of the Act, a tenant would be permitted to claim protection against eviction, 40. For the foregoing reasons, I conclude that the expansion "defence against delivery of possession' in S. 17 (3) of the Act of 1956 does not mean only the written statement of the defendant tenant in a suit for recovery of possession on any of the grounds set out in sub-section (1) of S. 13 of the West Bengal Premises Tenancy Act. When his defence is struck out he is no longer entitled to establish his claim for benefit of protection against eviction, i. e. landlord's claim for delivery of the premises in question. When his defence is struck out he is no longer entitled to establish his claim for benefit of protection against eviction, i. e. landlord's claim for delivery of the premises in question. After his defence is struck out under S. 17 (3) of the Premises Tenant Act, 1956, the defendant cannot contest the plaintiff's prayer for recovery of possession on any of the grounds mentioned in S. 13 (1) of the Act and, therefore, he cannot cross-examine the plaintiff's witnesses on the question of the existence of the grounds on which the plaintiff seeks recovery of possession. The defendant tenant may, however, cross-examine the plaintiff's witnesses on points which do not relate to his defence against delivery of possession a defendant can also adduce evidence on the said points. Even if, the defence of the defendant had been struck out, the plaintiff landlord must prove his case and the court can not make any order or decree for recovery of possession except on one or more of the grounds set out in clauses (a) to (k) of sub s. (1) of S. 13 of the West Bengal Premises Tenancy Act, 1956. Therefore, the answer to the reference ought to be that after his defence was struck out under S. 17 (3) of the Premises tenancy Act, 1956, the defendant tenant has no longer any right to cross-examine the plaintiff's witnesses on all points. Decision to the contrary by the Division bench in Dayamoyee Sadhokhan v. Dal singer Singh (supra), is not correct, The case be now placed before the learned single Judge for deciding the suit in accordance with law. There will be no order as to costs.