The striking out of the defence against delivery of possession under section 17 (3) of the West Bengal Premises Tenancy Act, 1956, does not bar the tenant from contesting the suit on points outside the scope of section 13 (1) of the Act, including the right to cross-examine the plaintiff's witnesses and to examine their own witnesses on such points.

1. OPPOSITE party No. 1, messrs. Canton Carpentry Works Private Limited instituted Title Suit No. 81 of 1957 in the Ninth Court of the Subordinate Judge at alipore for ejectment of the petitioners and opposite parties Nos. 2, 3 and 4 from premises no. 16, Radhanath Chowdhury Road formerly known as 16, Tangra Road, comprising about 10 Bighas 8 cottahs 12 chattacks of land with a two storied building thereon, on the ground that the Opposite Party No. 1 reasonably required the premises for building and rebuilding and for its own use and occupation. The petitioners appeared in the suit after service of summons on them and filed written statement subsequently, opposite party No. 1 filed an application under section 17 (3)of the West Bengal Premises Tenancy act, 1955, for striking out the petitioner's defence against delivery of possession on the allegation that the petitioners failed to make the deposits as required under sec. 17 (1) of the Act. The learned Subordinate Judge heard this application and made an order under section 17 (3) striking out the petitioners' defence against delivery of possession. When the suit was taken up for peremptory hearing and witnesses on behalf of opposite party No. 1 were being examined, an application was filed on behalf of the petitioners praying for permission to cross-examine those witnesses "on all points". The learned Subordinate Judge on hearing the parties rejected this prayer and made the following order : "I cannot permit the petitioners to cross-examine the plaintiff's witnesses on all the points. The petitioners would be permitted to contest the suit and to cross-examine the plaintiff's witnesses only on the ground of service of notice or its validity or on other defences, if there be any outside the Act or to show that they have been able to qualify themselves for reliefs under section 114 of the Transfer of Property Act."

2. THE petitioners have obtained this Rule against this order of the learned Subordinate Judge. Mr. Ganguly, who appears for the petitioners before us argues that the effect of an order striking out the defence against delivery of possession under section 17 (3)of the West Bengal Premises Tenancy act is that the defendants, here in this case the petitioners, will be debarred from examining their own witnesses but they will have the right to crossexamine the plaintiff's witnesses "on all points." He relies on the decision of P. B. Mukharji, J. in (1) Deo Chand singh v. Shah Mohammad, reported in 69 CWN 399 and submits that it is open to the tenant defendant even though his defence against delivery of possession has been struck out to cross-examine and break the plaintiffs witnesses in order to show to the court that the evidence that is being produced by the plaintiff is unacceptable and should be rejected.

Before we examine this argument of Mr. Ganguly, we should consider the earlier decisions of this court on the question as to the rights which the tenant-defendant continues to have even after his defence against delivery of possession has been struck out under section 14 (4) of the Rent Control Act, 1950 or section 17 (3) of the Premises tenancy Act, 1956. Sarkar, J. as he then was, held in (2) S. B. Trading company Limited v. Olympia Trading corporation Limited and another, reported in AIR 1952 Calcutta 685 that a tenant whose defence against delivery of possession has been struck out had no right to cross-examine the plaintiff's witnesses. That was a suit under the Rent Control Act of 1950. The defence of the defendant was struck out under section 14 (4) of the Act. When the Suit was taken up for ex-parte hearing, the defendant sought for permission to cross-examine in person the plaintiff's witnesses and to address the court on the basis of Rule 3, Chapter xiv of the Rules of the Original Side of this Court. But as we have said sarkar, J. who was hearing the suit, refused such permission holding that the defendant had no such right. It appears however, t