Back
HIGH COURT OF CALCUTTA
SANKAR PRASAD MITRA, M. M. DUTT, AMAL KRISHNA DE
GURUDAS BISWAS - Appellant
Versus
SIBASANKAR SEAL - Respondent
Ejectment Suit 1832 Of 1958
Decided On : July 17, 1974
PREMISES TENANCY ACT - SECTION 17(3) - STRIKING OUT OF DEFENCE - EFFECT - NOTICE OF SUIT UNDER SECTION 13(6) - VALIDITY - WAIVER - EX PARTE DECREE - REQUIREMENTS.
Fact of the Case:
Gurudas Biswas, the defendant, was sued for eviction from a rented premise by Charu Panna Seal, the plaintiff. The plaintiff claimed that she had terminated the tenancy by serving a notice to quit and that the defendant had defaulted in the payment of rents. The defendant contested the suit, denying the receipt of the notice to quit and the default in rent payment. The plaintiff filed a petition under section 17(3) of the West Bengal Premises Tenancy Act, 1956, to strike out the defendant's defence against delivery of possession. The court granted the petition, and the defendant's defence was struck out. The plaintiff then filed an ex parte petition for judgment, and the court decreed the suit in her favor.
Finding of the Court:
The court held that the striking out of the defendant's defence under section 17(3) of the Act did not preclude him from challenging the validity of the notice of suit under section 13(6) of the Act. The court further held that the defendant's voluntary retirement from the suit after the striking out of his defence did not amount to a waiver of his right to object to the validity of the notice of suit. The court also held that the trial court erred in passing an ex parte decree for eviction without making a finding that the defendant was a defaulter in the payment of rent.
Issues: 1. Whether the striking out of the defendant's defence under section 17(3) of the Act precluded him from challenging the validity of the notice of suit under section 13(6) of the Act? 2. Whether the defendant's voluntary retirement from the suit after the striking out of his defence amounted to a waiver of his right to object to the validity of the notice of suit? 3. Whether the trial court erred in passing an ex parte decree for eviction without making a finding that the defendant was a defaulter in the payment of rent?
Ratio Decidendi: 1. The court held that the striking out of the defendant's defence under section 17(3) of the Act did not preclude him from challenging the validity of the notice of suit under section 13(6) of the Act because: * Section 17(3) of the Act only strikes out the defence against delivery of possession, which is the defence on the grounds specified in section 13(1) of the Act. * The validity of the notice of suit under section 13(6) of the Act is not a defence on any of the grounds specified in section 13(1) of the Act. * Therefore, the striking out of the defendant's defence under section 17(3) of the Act did not preclude him from challenging the validity of the notice of suit under section 13(6) of the Act. 2. The court held that the defendant's voluntary retirement from the suit after the striking out of his defence did not amount to a waiver of his right to object to the validity of the notice of suit because: * Waiver is the intentional relinquishment of a known right. * The defendant did not have knowledge of his right to object to the validity of the notice of suit at the time of his retirement from the suit. * Therefore, the defendant's voluntary retirement from the suit did not amount to a waiver of his right to object to the validity of the notice of suit. 3. The court held that the trial court erred in passing an ex parte decree for eviction without making a finding that the defendant was a defaulter in the payment of rent because: * Under Order 20 Rule 4 of the Civil Procedure Code, the court is required to decide whether the suit is defended or not and, if the suit is defended, whether the plaintiff has proved his case. * The court cannot relieve itself of the necessity of complying with Order 20 Rule 4 even if it strikes out the tenant's defence against delivery of possession or the written statement. * Therefore, the trial court erred in passing an ex parte decree for eviction without making a finding that the defendant was a defaulter in the payment of rent.
Final Decision: The court answered the questions referred to it as follows: 1. Yes, the defendant can take the defence 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. The defendant should be permitted to take the defence as to the non-existence or invalidity of a notice of ejectment for the first time in appeal.
( 2 ) IN the plaint she stated that she had terminated the tenancy of Gurudas by serving a "notice to quit" on him on 13. 8. 58 asking him to vacate the premises on the expiry of the last day of September, 1958. She further stated in the plaint that Gurudas had disentitled himself to protection from eviction having "defaulted in the payment of rents for the suit premises from December, 1954".
( 3 ) GURUDAS contested the suit filing a written statement. He denied that he was a defaulter in the payment of rents. He also denied receipt of the notice to quit and stated that the notice dated 13. 8. 58 was illegal, insufficient and void and had not determined his tenancy under Charu Panna. Gurudas, the defendant, appeared in the suit on 12. 3. 59 and on the same day 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 by his order No. 5 dated 12. 3. 59 granted it. After the issues were framed in the suit the plaintiff filed on 5. 5. 59 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". This petition under section 17 (3) was taken up for hearing on 22. 6. 59 when the learned Judge made the following order: -"petition under section 17 (3) is taken up. Heard lawyers appearing on both sides. As the facts necessary to decide question of default which is one of the issues framed in the suit also are involved in the application under section 17 (3) of the West Bengal Premises Tenancy Act, it is desirable that both the matters should be heard on the same date and as such, the petition under section 17 (3) is left for consideration at the trial".
( 4 ) ON the same date the defendant filed a petition of objection against the plaintiff's petition under section 17 (3 ). On 14. 3. 60 the plaintiff filed a petition for her own examination on commission. The learned Judge by his order No. 19 dated 14. 3. 60 allowed that prayer. Her evidence was taken by a Commissioner appointed by the Court. The said Commissioner submitted his report on 16. 3. 60. In the meantime, the learned Judge by his Order No. 20 dated 15. 3. 60 fixed the suit for positive hearing on 16. 3. 60. On that date both the parties came ready and the learned Judge had recorded this order. "23. 16. 3. 60. Both parties ready. The plaintiff has tendered the commission evidence. The application under section 17 (1) [a mistake for section 17 (3)] W. B. P. R. C. Act, 1956, put up. The defendant's learned Advocate Shri R. L. Dutta examining after the Challans filed by the defendant submitted that the defendant did not, on the Challans filed, deposit rent on term of section 17 (1), of the Act up to date and that his W. S. can't be saved from being struck off. Then Shri Dutta took leave of the Court and retired. The W. S. of the defendant is struck off. The plaintiff's evidence on commission submitted for judgment to 17th March, 1960, as the defendant has withdrawn from the suit. S. Bagchi, judge. "
( 5 ) ON 17. 3. 60 the learned Judge decreed the suit ex parte for eviction of the defendant Gurudas by his orde No. 25 dated 17. 3. 60. The defendant filed First Appeal No. 242 of 1960 in this Court against the said judgment and ex parte decree.
( 6 ) IN the first appeal the defendant-appellant appeared to have argued that the plaintiff was not entitled to a decree in the suit as no notice of suit had been given under section 13 (6) and that such notice, if any given, was invalid; that the evidence, on which the learned Judge had decreed the suit ex parte, was not sufficient to prove the validity of the notice of ejectment, meaning the notice to quit under section 106
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
