1974 Supreme(Cal) 194

HIGH COURT OF CALCUTTA
Sankar Prasad Mitra, M. M. Dutt, A. K. De
GURUDAS BISWAS - Appellant
Versus
CHARU PANNA SEAL - Respondent
Full Bench Reference 1  Of  1967 In A. F. O. D. No. 241 Of 1960
Decided On : JULY 17, 1974

The defense against delivery of possession under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, is limited to the grounds specified in Section 13(1) of the Act, and does not include the defense of the non-existence or invalidity of a notice under Section 13(6).

Headnote:

WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 17(3) - SCOPE AND EFFECT - NOTICE OF SUIT UNDER SECTION 13(6) - WHETHER A PART OF SPECIAL PROTECTION CONFERRED ON TENANT - WHETHER WAIVER OF OBJECTION TO NOTICE OF SUIT BY VOLUNTARY RETIREMENT FROM SUIT.

Fact of the Case:

The plaintiff, Charu Panna Seal, filed an Ejectment Suit No. 1832 of 1958 on 8-10-1958 in the City Civil Court for eviction of Gurudas Biswas from Suite No. 1 on the first floor of premises No. 1, Jatindra Mohan Avenue. The defendant, Gurudas Biswas, contested the suit by filing a Written Statement denying the receipt of the notice to quit and stating that the notice dated 13-8-1958 was illegal, insufficient, and void. The defendant appeared in the suit on 12-3-1959 and filed a petition praying for leave to deposit rents for the months of January and February, 1959, and the subsequent current rents, month by month. The learned Judge granted the petition. On 5-5-1959, the plaintiff filed a petition under Section 17(3) of the West Bengal Premises Tenancy Act with the prayer to strike out the defendant's "defence against delivery of possession." The petition was taken up for hearing on 22-6-1959, and the learned Judge made an order leaving the petition under Section 17(2) for consideration at the trial. On the same date, the defendant filed a petition of objection against the plaintiff's petition under Section 17(3). On 14-3-1960, the plaintiff filed a petition for her own examination on commission, which was allowed by the learned Judge. The defendant filed a First Appeal No. 242 of 1960 in the Calcutta High Court against the ex parte judgment and decree. The Division Bench, hearing the first appeal, framed two points for determination by the Full Bench: (1) Whether, where a defense against delivery of possession has been struck out under Section 17(3), the defendant can take the defense of the non-existence or invalidity of a notice under Section 13(6) either in the Court below or in the Court of Appeal; and (2) Whether, where a defendant does not appear in the Court below and take the defense as to the non-existence or invalidity of a notice of ejectment, he should be permitted to take the defense for the first time in appeal.

Finding of the Court:

The Full Bench of the Calcutta High Court held that: (1) Where a defense against delivery of possession has been struck out under Section 17(3), the defendant can no longer take the defense of the non-existence or invalidity of a notice under Section 13(6) either in the Court below or in the Court of Appeal. (2) Where a defendant does not appear in the Court below and take the defense as to the non-existence or invalidity of a notice of ejectment, he should not be permitted to take the defense for the first time in appeal.

Issues: 1. Whether, where a defense against delivery of possession has been struck out under Section 17(3), the defendant can take the defense of the non-existence or invalidity of a notice under Section 13(6) either in the Court below or in the Court of Appeal? 2. Whether, where a defendant does not appear in the Court below and take the defense as to the non-existence or invalidity of a notice of ejectment, he should be permitted to take the defense for the first time in appeal?

Ratio Decidendi: 1. The expression "defense against delivery of possession" in Section 17(3) means the defense as may be taken on any or more of the "grounds" in Section 13(1). When a defense against delivery of possession is struck out, the tenant's defense on the grounds in Section 13(1) is only struck out. 2. Sub-section (6) of Section 13 is not a special "protection" conferred by the 1956 Act to the tenant. It is a restriction on the "filing" of the suit, not on the "eviction of the tenant." 3. Voluntary retirement of the lawyer is only a 'conduct' of the defendant, if any. Waiver is "intentional withdrawal of a known existing right." The judicial pronouncement laying down that a notice is a necessary antecedent step before a trial for eviction was made only on 19-6-1963. The tenant when his lawyer retired on 16-3-1960 had not any knowledge of any such right to object to the filing of ejectment suit for absence of notice under Section 13(6). So his retirement on 16-3-1960 was not waiver of a known right.

Final Decision: The Full Bench answered both the questions in the affirmative, holding that the decision in Subodh Chandra Singha v. Santosh Kumar Srimani, (1964) 68 Cal WN 184, was rightly decided.