A defendant whose defense against delivery of possession has been struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, is entitled to cross-examine the plaintiff's witnesses and adduce evidence on the point of service of the notice to quit.

( 1 ) THIS appeal is at the instance of the plaintiff and it arises out of a suit for ejectment.

( 2 ) THE case of the plaintiff was that the defendant was a monthly tenant under the plaintiff in respect of the suit premises being premises No. 2/3, Commissariat Road, Calcutta-22, consisting of one big corrugated shed, one pucca room and vacant land measuring 7 cottahs at a rental of Rs. 270/- per month payable according to the English Calendar month. It was alleged that the defendant had illegally constructed 5 rooms with pucca roof and also two tiled-roofed rooms on the vacant land within the suit premises without the knowledge and consent of the plaintiff. The further case of the plaintiff was that the defendant had also demolished some portions of the boundary wall of the suit premises and constructed another room and sublet the same without the consent of the plaintiff, It was alleged that the defendant had constructed one latrine in front of the main gate without the consent of the plaintiff. It was contended that the defendant thus violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The plaintiff determined the tenancy of the defendant by the service of a notice to quit, calling upon him to vacate the suit premises on the expiry of Dec. , 1972, but the defendant did not comply with the terms of the notice. Hence the plaintiff instituted the suit.

( 3 ) THE defendant entered appearance in the suit and filed a written statement. He denied that he had constructed the aforesaid rooms without the consent of the plaintiff as alleged. His case was that the said rooms were constructed by the plaintiff and the defendant had to increase the rent (sic, to pay the increased rent?) from time to time. According to the defendant, the initial rent was Rs. 225/- per month but that was increased to Rs. 270/- per month. He denied that he had broken the boundary wall and constructed a room as alleged. Further, he denied that he had sub-let any room of the suit premises. The service of the notice to quit and the legality 'hereof were also denied by him.

( 4 ) DURING the pendency of the suit, the defendant did not comply with the provisions of Section 17 (1) of the West Bengal Premises Tenancy Act, 1956 and, accordingly, the defence of the defendant against delivery of possession was struck out on May 22, 1970 under Section 17 (3) of the said Act. At the hearing of the suit, the plaintiff examined her husband. The defendant was allowed to cross-examine the plaintiff's husband on all the issues. The defendant also examined himself only on the question of service of the notice to quit.

( 5 ) THE learned Chief Judge, City Civil Court, Calcutta came to the finding that the notice to quit was duly served upon the defendant, and that the same was legal and valid. He, however, held that the plaintiff had failed to produce sufficient and convincing materials to prove that the defendant had raised the constructions in the suit premises in violation of the provisions Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. In that view of the matter, the learned Chief Judge dismissed the suit. Hence this appeal by the plaintiff.

( 6 ) MR. Sachindra Chandra Das Gupta, learned Advocate appearing on behalf of the plaintiff appellant, has strenuously urged before us that as the defence of the defendant against delivery of possession was struck out, the learned Chief Judge was not at all justified in allowing the defendant to cross-examine the plaintiff's witness. It is contended by him that after the defence of a tenant against delivery of possession is struck out under the provision of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, the Court has to proceed ex parte and it has no jurisdiction to allow the tenant to cross-examine the plaintiff's witnesses. In support of his contention, he has placed strong reliance on the decision of the Full Bench of this Co