The expression "defense against delivery of possession" in section 17 (3) of the West Bengal Premises Tenancy Act, 1956, refers only to the pleadings and not to the right to cross-examine witnesses or to call evidence.

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. 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