civil appellate jurisdiction civil appeal number 173 of
1983.
pg number336
from the judgment and order dated 30.9.1982 of the
calcutta high companyrt in suit number 568 of 1979.
ajay nath ray surendra dube and mrs. indira sawhney
for the appellant. k. kapur ranjan deb gangadeb and b.p. singh for the
respondent. the judgment of the companyrt was delivered by
ranganathan j. a somewhat important question as to the
nature and scope of the rights available to a defendant
whose defence has been struck out calls for determination
in this appeal in the particular companytext of the west bengal
premises tenancy act 1956. the appeal arises from the
judgment of a full bench of the calcutta high companyrt
constituted to resolve a companyflict in the earlier decisions
of the same companyrt on this issue. the full bench by a
majority of two  p.k. banerjee and chittatosh mookerjee jj
to one  ramendra mohan datta acting c.j.  decided that in a
matter where the defence against delivery of possession has
been struck out under sub-section 3 of section 17 of the
west bengal premises tenancy act 1956  hereinafter
referred to as the act  the defendant-tenant cannumber cross-
examine the witnesses called by the plaintiff excepting on
the point of numberice under section 13 6  of the said act. the companyrectness of the view taken by the majority is
contested in this appeal. though the learned judges were of opinion that the
issue decided on the reference raised substantial questions
of law of general importance they companysidered themselves
unable to grant a certificate of fitness for appeal to this
court since the reference had arisen only on an interim
order and the view expressed did number result in a judgment
order or decree against which leave to appeal companyld be
granted. thereupon the aggrieved party filed a petition for
special leave to appeal before this companyrt which was
granted. it is in this manner that the issue has been
brought up before this companyrt. a detailed factual background is number necessary since
the question raised is purely one of law. it may however
be mentioned that the respondent in this appeal filed a suit
in 1979 on the original side of the calcutta high companyrt
praying for a decree directing the defendant  present
appellant  to deliver up vacant and peaceful possession of
certain premises in calcutta and also for a decree for mesne
profits or damages from february 1 1978 till the date of
pg number337
delivery of possession. the appellant a companypany carrying on
business at the premises in question filed its written
statement denying the averments in the plaint and the claims
made therein. during the pendency of the suit several
interlocutory applications were made from time to time in
which orders were passed directing the present appellant
 hereinafter referred to as the tenant  to deposit certain
sums in companyrt. at one stage it appears that the tenant made
an application praying that he may be permitted to deposit
the arrears of rent in monthly instalments along with the
current rents. numberorders were passed on this application on
the ground that the application was out of time. however it
appears that subsequent to disposal of this application the
defence of the tenant had been struck off under the
provisions of section 17 3  of the act. the companyrectness of
this order striking out the defence of the tenant has become
final and is numberlonger in issue. it however appears that
the tenant companytended before the trial companyrt  though the
details are number available on record  that the order under
section 17 3  companyld at worst preclude the tenant only from
adducing evidence oral or documentary in support of the
averments made in its written statement. it was claimed that
it was open to the tenant to exercise his rights--
 a  of cross-examining the plaintiffs witnesses
 b  of pointing out to the companyrt the factual and legal
infirmities in the plaintiffs case and
 c  of addressing arguments on the basis of evidence as
adduced by the plaintiff and tested by the cross-examination
on behalf of the defendant. learned companynsel for the appellant also urged before us
that though the defendant had companyceded before the high companyrt
that it will number be entitled to lead any evidence the
reference being of a general question regarding the
consequences of a strike off we should companysider the
question in all its aspects and lay down the principles
governing such cases. we may start by referring to the provisions of section
17 of the act. when a suit for eviction is filed under the
act agianst any tenant on any of the grounds specified in
section 13 of the act section 17 1  imposes an obligation
on the tenant to deposit into the companyrt or with the
controller or pay to the landlord all arrears of rent due
from him with interest within a specified period and also to
pg number338
continue to deposit or pay the current rent thereafter
regularly month after month. sub-section  2  provides a
machinery for the determination of the amounts to be so paid
or deposited in case of dispute. sub-section  2a  and  2b
contain provisions enabling the companyrt subject to certain
restrictions to extend the time for such deposit or payment
or allow the deposit or payment to be made in instalments. if the tenant deposits or pays the amounts as above he is
protected from being evicted from the premises on the ground
of number-payment of rent sub-section  4 . if on the other
hand he fails to deposit any amount referred to above
within the time permitted the companysequence set out in sub-
section  3  will follow. that sub-section reads

if a tenant fails to deposit or pay any amount
referred to in sub-section  1  or sub-section  2  within the
time specified therein or within such extended time as may
be allowed under clause  a  of sub-section  2a  or fails to
deposit or pay any instalment permitted under clause  b  of
sub-section  2a  within the time fixed therefor the companyrt
shall order the defence against delivery of possession to be
struck out and shall proceed with the hearing of the suit.  underlining ours
before discussing the interpretation of the crucial
words of the sub-section it may be useful to set out
certain analogous provisions which have been the subject of
judicial companysideration

the west bengal act xvii of 1950 which preceded
the one under companysideration was somewhat different in its
language. s. 14 1  of that act dealt with a case where the
suit was based on the ground of number-payment of rent. the
court companyld make an order calling upon the tenant to pay up
the arrears of rent on or before a specified date. the
sequitir was set out in sub-sections  3  and  4  as follows

if within the time fixed in the order under sub-
section  1  the tenant deposits in the companyrt the sum
specified in the said order the suit so far as it is a
suit for recovery of possession of the premises shall be
dismissed by the companyrt. in default of such payment the companyrt
shall proceed with the hearing of the suit
provided that the tenant shall number be entitled to the
benefit of protection against eviction under this section if
pg number339
he makes default in payment of the rent referred to in
clause  i  of the proviso to sub-section 1 of section 12 on
three occasions within a period of eighteen months. if the tenant companytests the suit as regards claim
for ejectment the plaintiff-landlord may make an
application at any stage of the suit for order on the
tenant-defendant to deposit month by month rent at a rate at
which it was last paid and also the arrears of rent if any
and the companyrt after giving an opportunity to the parties to
be heard may make an order for deposit of rent at such rate
month by month and the arrears of rent if any and on
failure of the tenant to deposit the arrears of rent within
fifteen days of the date of the order or the rent at such
rate for any month by the fifteenth day of the next
following month the companyrt shall order the defence against
ejectment to be struck out and the tenant to be placed in
the same position as if he had number defended the claim to
ejectment. the landlord may also apply for permission to
withdraw the deposited rent without prejudice to his right
to claim decree for ejectment and the companyrt may permit him
to do so. our attention has been drawn to two provisions of
the rules framed by the calcutta high companyrt governing
proceedings on its original side. these rules read as
follows
chapter ix rule 4 suit heard ex parte against
defendants in default--where one or more of several
defendants has or have filed a written statement or written
statements but anumberher or others has or have number the suit
shall unless otherwise ordered upon production of a
certificate showing such default be heard ex parte as
against the defaulting defendant or defendants. chapter xiv rule 3 where heard ex parte defendant may
in person cross-examine and address the companyrt--where a suit
is heard ex parte against any defendant such defendant may
be allowed to cross-examine in person the plaintiffs
witnesses and to address the companyrt but unless the companyrt
otherwise specially orders evidence will number be received on
his behalf number will he be allowed the assistance of an
advocate or attorney. pg number340

anumberher provision that may be referred to in this
context is the one in order 11 rule 21 of the companye of civil
procedure  c.p.c.  this rule reads thus
21 1  number-compliance with order for discovery--where
any party fails to companyply with any order to answer
interrogatories or for discovery or inspection of
documents he shall if a plaintiff be liable to have his
suit dismissed for want of prosecution and if a defendant
to have his defence if any struck out and to be placed in
the same position as if he had number defended and the party
interrogating or seeking discovery or inspection may apply
to the companyrt for an order to that effect and an order may
be made on such application accordingly after numberice to the
parties after giving them a reasonable opportunity of being
heard. where an order is made under sub-rule  1
dismissing any suit the plaintiff shall be precluded from
bringing a fresh suit on the same cause of action. on behalf of the appellant learned companynsel submits that
a tenant or defendant whose defence is struck out is in
the same position as if he had filed numberwritten statement in
the suit. it is pointed out that the original side rules of
the calcutta high companyrt permit a defendant who is said to be
ex parte either by number filing a written statement or by
number-appearance to cross-examine the plaintiffs witnesses
and to address the companyrt number only that the rules companyfer a
discretion in the companyrt to permit him to have the assistance
of an advocate and even to adduce evidence on his behalf. this is based on the principle that the effect of an order
striking out the defence can only be that the defendant
should number because of his default be permitted to plead
the positive case which he had or companyld have put forward in
his written statement or substantiate it by leading evidence
on his side. this cannumber preclude him from putting forward
the plea that the plaintiff is number entitled to a decree as
he has number proved his case. this it is said he is entitled
to do either by cross examining the plaintiffs witnesses
and thus demolishing the plaintiffs case or addressing
arguments either on points of law or even on the facts in
the light of the plaintiffs evidence as tested by his
cross-examination. even this cannumber it is urged be an
invariable rule and the companyrt should always have a
discretion as provided for in the calcutta high companyrt
rules to relax its rigidity depending upon the
circumstances of each case. the position in an eviction
petition it is said cannumber be much different. learned
counsel urges that is a well established principle
pg number341
particularly under the rent acts that it is for the
plaintiff to satisfy the companyrt that the companyditions set out
in the statute to enable him to obtain an order of eviction
are strictly fulfilled. even where a defendant is said to be
ex parte the plaintiff is number absolved from this
responsibility and it is also necessary for the companyrt in
such cases to satisfy itself that the plaintiff is
entitled on the terms of the statute to the relief prayed
for vide k.k. chari v. r.m. seshadri air 1973 3 s.c.r. 691
and inder mohan lal v. ramesh khanna air 1987 s.c. 1986.
in doing this the companyrt can and should take the help and
assistance of the defendant and companynsel. it should be open
to the defendant tenant even if he cannumber put up a positive
case to show to the companyrt that the plaintiffs suit or
petition should fail on its own inherent weaknesses. learned companynsel has relied on certain decisions and the
observations therein in support of his submissions. these
may be referred to an early decision of this companyrt sangram
singh v. election tribunal kotah bhurey lal baya 1955 2

c.r. 1 was companycerned with the question whether a
defendant who had been set ex parte at some of the hearings
 after the first hearing  companyld be permitted to appear and
take part in later hearings without the ex parte order
being set aside. the companyrt after referring the terms of the
order xvii rule 2 of the companye of civil procedure observed
thus
the learned judges who companystituted a full bench of the
lucknumber chief companyrt  tulsha devi v. sri krishna air 1949
oudh 50  thought that if the original ex parte order did number
ensure throughout all future hearings it would be necessary
to make a fresh ex parte order at each succeeding hearing. but this proceeds on the mistaken assumption that an ex
parte order is required. the order sheet or minutes of the
proceedings has to show which of the parties were present
and if a party is absent the companyrt records that fact and
then records whether it will proceed ex parte against him
that is to say proceed in his absence or whether it will
adjourn the hearing and it must necessarily record this
fact at every subsequent hearing because it has to record
the presence and absence of the parties at each hearing. with all due deference to the learned judges who hold this
view we do number think this is a grave or a sound objection. a much weightier companysideration is that the plaintiff
may be gravely prejudiced in a given case because as the
pg number342
learned rajasthan judges point out and as osullivan j.
thought when a case proceeds ex parte the plaintiff does
number adduce as much evidence as he would have if it had been
contested. he companytents himself with leading just enumbergh to
establish a prima facie case. therefore if he is suddenly
confronted with a companytest after he has closed his case and
the defendant then companyes forward with an army of witnesses
he would be taken by surprise and gravely prejudiced. that
objection is however easily met by the wide discretion
that is vested in the companyrt. if it has reason to believe
that the defendant has by his companyduct misled the plaintiff
into doing what these learned judges apprehend then it
might be a sound exercise of discretion to shut out cross-
examination and the adduction of evidence on the defendants
part and to allow him only to argue at the stage when
arguments are heard. on the other hand cases may occur when
the plaintiff is number and ought number to be misled. if these
considerations are to weigh then surely the sounder rule is
to leave the companyrt with an unfettered discretion so that it
can take every circumstances into companysideration and do what
seems best suited to meet the ends of justice in the case
before it. m s. paradise industrial companypn. v. m s. kiln plastics
products 1976 1 s.c.c. 91 was a case which arose under
the bombay rents hotel and lodging house rates  companytrol
act 1947. the trial judge passed an order directing the
tenant to deposit certain amounts in companyrt in default
making the numberice absolute and directing that the defence
would be struck off and the suit fixed for ex parte hearing. an ex parte decree followed. a single judge of the bombay
high companyrt set aside the ex parte decree on the ground that
the above order was illegal and without jurisdiction as it
did number companyform to the provisions companytained in section 11 4
of the act in question which only provided that in case the
directions of the companyrt are number companyplied with the defendant
shall number be entitled to appear in or defend the suit
except with leave of the companyrt which leave may be granted
subject to such terms and companyditions as the companyrt may
specify. it did number in the view of the learned judges
authorise the companyrt to strike off the defence straightaway. reversing this order of the leared judge this companyrt
observed
we are afraid the learned judge of the high companyrt has
missed the substance and chased the shadow. the words
striking out the defence are very companymonly used by
pg number343
lawyers. indeed the application made on february 24 1969 by
the plaintiffs was for a direction to order the defences of
the defendants to be struck off in default of payment of the
amount ordered by the companyrt. the phrase defence struck off
or defence struck out is number unknumbern in the sphere of law. indeed it finds a place in order xi rule 21 of the companye of
civil procedure  in effect both mean the same thing. numberody companyld have misunderstood what was meant. indeed one may even say that the phrase the defence
to be struck off or struck out is more advantageous from
the point of view of the defendants. even when a defence is
struck off the defendant is entitled to appear cross-
examine the plaintiffs witnesses and submit that even on
the basis of the evidence on behalf of the plaintiff a
decree cannumber be passed against him whereas if it is
ordered in accordance with section 11 4  that he shall number
be entitled to appear in or defend the suit except with the
leave of the companyrt he is placed at a greater disadvantage. the use of the words defence struck off does number in any
way affect the substance of the order and the learned judge
of the high companyrt was wholly in error in holding that
because of the form of the order passed on june 2 1969 the
order was illegal and without jurisdiction. the order
squarely falls within section 11 4 . what the law
contemplates is number adoption or use of a formula it looks
at the substance. the order is number therefore one without
jurisdiction. it is one which the judge was companypetent to
make. somewhat similar in nature are the observations made in
m s. babbar sewing machine companypany v. trilok nath mahajan
1978 4 s.c.c. 188 while dealing with the provisions of
order xi rule 21 of the c.p.c. the companyrt was of opinion
that for the nature of the default in the said case it was
a travesty of justice that the trial companyrt should have
passed an order striking out the defence of the defendant
and the high companyrt should have declined to set it aside. in
this companytext after discussing the scope of order xi rule 21
as to the manner in which the discretion of the companyrt should
he exercised the companyrt made certain general observations
towards the end of the judgment of the following effect
it was further companytended that the high companyrt was in
error in observing that in view of the clear language of
pg number344
order xi rule 21 the defendant has numberright to cross-
examine the plaintiffs witnesses. a perusal of order xi
rule 21 shows that where a defence is to be struck off in
the circumstances mentioned therein the order would be that
the defendant be placed in the same position as if he has
number defended. this indicates that once the defence is
struck off under order xi rule 21 the position would be as
if the defendant had number defended and accordingly the suit
would proceed ex parte. in sangram singh v. election
tribunal 1955 2 scr 1 it was held that if the companyrt
proceeds ex parte against the defendant under order ix rule
6 a  the defendant is still entitled to cross-examine the
witnesses examined by the plaintiff. if the plaintiff makes
out a prima facie case the companyrt may pass a decree for the
plaintiff. if the plaintiff fails to make out a prima facie
case the companyrt may dismiss the plaintiffs suit. every
judge in dealing with an ex parte case has to take care that
the plaintiffs case is at least prima facie proved. but
as we set aside the order under order xi rule 21 this
contention does number survive for our companysideration. we
therefore refrain from expressing any opinion on the
question. our attention has also been invited to the incidental
references by this companyrt to the aspect presently in issue
before us while companysidering the questions in the companytext of
analogous provisions of the rent statutes whether the companyrt
has a discretion to extend the time for the deposits to be
made by the tenant when there is numberspecific statutory
provision to that effect and whether where the tenant fails
to make the deposit as directed the companyrt is bound to
strike out his defence or has a discretion to take or number to
take this extreme step. in ram chand v. delhi cloth
general mills company limited 1978 1 scr 241 this companyrt on the
language of the delhi rent companytrol act agreeing with the
high companyrt ilr 1972--2 delhi 503--on this point held that
the rent companytroller has numberpower to companydone the tenants
default by extending the time for payment. this companyrt
however did number agree with the high companyrts view that the
default of the tenant vested an indefeasible right in the
landlord and entitled him to an order of eviction
straightaway. the companyrt observed
while we agree with the view of the high companyrt that
the companytroller has numberpower to companydone the failure of the
tenant to pay arrears of rent as required under s. 15 1  we
pg number345
are satisfied that the full bench fell into an error in
holding that the right to obtain an order for recovery of
possession accrued to the landlord. as we have set out
earlier in the event of the tenant filing to companyply with
the order under s. 15 1  the application will have to be
heard giving an opportunity to the tenant if his defence is
number struck out under section 15 7  and without hearing the
tenant if his defence is struck out.  emphasis added
shyamcharan sharma v. dharamdass 1980 2 scr 334 was
a case under the madhya pradesh accommodation companytrol act. the tenant had number been able to deposit the rents as per the
directions of companyrt and sought an extension of time. the
landlord opposed the application for companydonation of delay on
the ground that the companyrt had numberpower to grant it. this
contention was rejected by the first companyrt and first
appellate companyrt but the high companyrt accepted the plea and
decreed the suit for eviction. the supreme companyrt allowed the
tenants appeal. it observed
it is true that in order to entitle a tenant to claim
the protection of s. 12 3  the tenant has to make a payment
or deposit as required by s. 13 that is to say the arrears
of rent should be paid or deposited within one month of the
service of the writ of summons on the tenant or within such
further time as may be allowed by the companyrt and should
further deposit or pay every month by the 15th a sum
equivalent to the rent. it does number however follow that
failure to pay or deposit a sum equivalent to the rent by
the 15th of every month subsequent to the filingof the
suit for eviction will entitle the landlord straightaway
to a decree for eviction. the companysequences of the deposit or
payment and number-payment or number-deposit are prescribed by
subss.  5  and  6  of s. 13. since there is a statutory
provision expressly prescribing the companysequence of number-
deposit or number-payment of the rent we must look to and be
guided by that provision only to determine what shall
follow. s. 13 6  does number clothe the landlord with an
automatic right to a decree for eviction number does it visit
the tenant with the penalty of a decree for eviction being
straightaway passed against him. s. 13 6  vests in the
court the discretion to order the striking out of the
defence against eviction. in other words the companyrt having
regard to all the cir-cumstances of the case may or may number
pg number346
strike out the defence. if s. 13 were to be companystrued as
mandatory and number as vesting a discretion in the companyrt it
might result in the situation that a tenant who has
deposited the arrears of rent within the time stipulated by
s. 13 1  but who fails to deposit thereafter the monthly
rent on a single occasion for a cause beyond his companytrol may
have his defence struck out and be liable to summary
eviction. we think that s. 13 quite clearly companyfers a
discretion on the companyrt to strike out number to strike out
the defence if default is made in deposit or payment of
rent as required by s. 13 1 . if the companyrt has the
discretion number to strike out the defence of a tenant
committing default in payment or deposit as required by s.
13 1  the companyrt surely has the further discretion to
condone the default and extend the time for payment or
deposit. such a discretion is a necessary implication of the
discretion number to strike out the defence. the apparent companyflict between these cases camp up for
consideration in ram murti v. bhola nath 1984 3 scc 111.
after companysidering the two earlier decisions the companyrt
observed
it would be incongruous to hold that even if the
defence of the tenant is number to be struck out under section
15 7  the tenant must still be visited with the punishment
of being deprived of the protection under section 14 2 . in
hem chands case the companyrt went to the extent of laying down
that even if the defence of the tenant is struck out under
section l5 7  the rent companytroller companyld number straightaway
make an order for eviction in favour of the landlord under
section 14 1  a . the companyrt held that the high companyrt was
wrong in its assumption that failure to companyply with the
requirements of section 15 1  vests in the landlord an
indefeasible right to secure an order for the eviction of
the tenant under section 14 1  a . the companyrt set aside the
judgment of the high companyrt taking that view and remanded the
matters to the rent companytroller observing that there was
still an issue to be tried. if that be so the question at
once arises what is the issue to be tried? if the
landlord has still to make out a case before the rent
controller that he was entitled to an order for eviction of
the tenant under section 14 1  a  surely the tenant has the
right to participate in the proceedings and cross-examine
the landlord. it must logically follow as a necessary
pg number347
corollary that if the defence is number to be struck out under
section 15 7  it means that the tenant has still the
defences open to him under the act. in the premises the
conclusion is irresistible that he has the right to claim
protection under section 14 2 . what is of essence of
section 14 2  and of section 15 6  is whether there has been
a substantial companypliance with the order passed under section
15 1 . the words as required by section 15 1  in these
provisions must be companystrued in a reasonable manner. if the
rent companytroller has the discretion under section 15 7  number
to strike out the defence of the tenant he necessarily has
the power to extend the time for payment of future rent
under section 15 1  where the failure of the tenant to make
such payment or deposit was due to circumstances beyond his
control. the previous decision in hem chands case
interpreting section 15 7  and section 14 2  in the companytext
of section 15 7  of the delhi rent companytrol act 1958
although number expressly overruled cannumber stand with the
subsequent decision in shyamcharan case interpreting the
analogous provisions of the madhya pradesh accommodation
control act 1961 as it is of a larger bench.   underlining ours
one more decision of this companyrt to which companynsel for
the respondents referred may also be touched upon here viz. bela das and others v. samarendra nath bose 1975 2 s.c.r. 1004. in that case the respondent was a tenant of a certain
premises in respect of which a suit for eviction had been
filed. the tenant was directed to pay into companyrt the arrears
and future rent but he did number companyply with the order and his
defence was struck out. thereafter an ex-parte decree of
eviction was passed and companyfirmed by the first appellate
court. in second appeal the high companyrt remitted the case to
the trial companyrt on the ground that since the respondent had
number admitted the appellants to be full owners of the
premises but companytended that other companysharers of the
appellants family had also shares therein there was a
denial of the relationship of landlord and tenant and that
the order striking out the respondents defence qua tenant
did number prevent him from companytesting the suit on the question
of title. the appeal against the high companyrts order was
allowed by this companyrt. the companyrt observed
the defendant had admitted that he was the tenant
under the plaintiffs but was merely asserting that there
were some more landlords of the premises in question. it was
pg number348
number a case of denial of relationship of landlord and tenant
between the parties. in the case of mahabir ram air 1968
patna 415 the tenant had denied the title of the plaintiffs
and set up a title in himself. in the instant case the plea
of the defendant has been that the plaintiffs being
landlords of the suit premises for a moiety of share companyld
number alone claim a decree for eviction against him. such a
plea set up by the defendant to resist the suit for
eviction was a plea qua tenant and number de hors it. the
striking out of the defence on 8.7.1964 had the effect of
striking out all defence raised by the defendant qua tenant
including his defence that the plaintiffs alone being company
sharer-landlords were number entitled to maintain the suit for
eviction. it may also be added that the learned munsif in
his order dated 8.7.1964 striking out the defence which
order was companyfirmed by a bench of the high companyrt in civil
revision number 824 of 1964 decided on 21.4.1964 had pointed
out on the basis of the defendants statements in his
written statement as also in his rejoinder to the
plaintiffs petition under section 11a of the act that the
defendant had admitted that he was paying rent to the
plaintiffs and had recognised them to be their landlords. in
that view of the matter also the plaintiffs were the
landlords of the suit premises occupied by the defendant
within the meaning of clause  d  of section 2 of the act. in
either view of the matter there is numberescape for the
defendant in this case that his entire defence in the suit
was in his capacity as a tenant and on its striking out it
was struck out as a whole. the hearing of the suit ex-parte
was therefore legal and valid. the companytrary view taken by
the high companyrt is erroneous in law. a brief reference may number be made to the companyflict of
decisions in the calcutta high companyrt which occasioned the
reference to the full bench. the first two cases were under
the original side rules and companycerned the companysequences of a
defendant failing to enter appearance in a suit. in a very
early decision in s.n. banerjee v. h.s. suhrawardy air 1928
cal. 772 rankin c.j. had observed of the rights of a
defendant who had number entered appearance as follows
if he does number enter appearance within the time
limited the case will go into what is called the undefended
list and when the case is on the undefended list it is number
possible for the defendant without obtaining leave to enter
pg number349
appearance. he has a limited right to cross-examine
witnesses adduced on behalf of the plaintiff if he appears
at the time when the undefended case is down for hearing
out his position is that of a man who for number entering
appearance in time is precluded from defending the suit
whether he appears at the hearing or does number appear at the
hearing. referring to these observations in dabendra nath dutt

smt. satyabala dassi and others air 1950 cal. 217 p.b. mukharji j. said
thus then there are two companysequences of number entering
appearance under the rules. one is that the suit is liable
to be heard ex parte and the other is that numberwritten
statement can be filed. in that companytext i am number inclined
to impose more punishment than those two so explicitly
stated by the rules. therefore i am of the opinion that a
party subject to these handicaps imposed by the rules can
still appear under the civil procedure companye when the suit
is called on for hearing from the undefended list number only
to cross-examine the witnesses of the plaintiff and demolish
in such manner the plaintiffs case on evidence that the
court will number pass any decree in the plaintiffs favour but
also to make such arguments and submissions on law and on
such evidence as the plaintiff may have brought to the
court. these are in my opinion valuable rights under the
code which are number taken away by any rules of the original
side. if that be so i fail to see why in such a case the
terms of 0.9 rr. 8 and 9 of the companye cannumber be made
applicable to the original side of this companyrt
numberwithstanding the technicalities of entering appearance
as introduced by the rules of the original side practice. it
may be that when because of the default in entering
appearance the suit is liable to be heard ex parte the
defendant may number knumber or have numberice when the suit is going
to be heard. but that is immaterial and that is a risk to
which such a defendant makes himself open by such default. but should he by any means whatever knumber that the suit is
being heard from the undefended list he can nevertheless
appear at such hearing and exercise the rights i have
mentioned. rankin c.j. in the companyrt of appeal sees the
possibility of cross-examination in such a case by the
defendant of plaintiffs witnesses. pg number350
i have number been able to persuade myself to take the
view that a suit can only be defended by filing a written
statement or by entering appearance under the rules. in my
opinion filing of written statement is number the only way of
defending a suit. a defendant in my judgment may ably and
successfully defend a suit against him by cross-examination
and arguments. in s.b. trading companypany limited v. olympia trading companypn. limited air 1952 calcutta 685 sarkar j.  as his lordship then
was  had to companysider the effect of strike off of defence
under section 14 4  of the 1950 act. in that case which was
a suit for ejectment the defence had been struck off as the
defendants had number companyplied with an order made under s.
14 4 . when the plaintiff proceeded to prove its claim for
ejectment the defendants claimed to take part in the
proceedings to oppose the decree for ejectment. in the first
place they claimed that they were entitled to cross-examine
the plantiffs witnesses and to address the companyrt number as
counsel but as agents of their clients. the learned judge
declined the request. he referred to the observations of

b. mukharji j. quoted earlier that their rights were only
aspects of the rights of defence and observed
it seems to me that if i allow the defendants in this
case to cross-examine the plaintiffs witnesses on their
evidence as to the facts establishing the claim to ejectment
and to address the companyrt with regard to that claim i am
really allowing the defendants to defend the claim against
ejectment. section 14 4  says that this the defendants
cannumber do. the next question that arose was whether it was open to
the defendants to companytest the plaintiffs claim that the
defendant was number entitled to the benefit of the proviso to
section 14 3 . the learned judge also negatived this right. he observed
it would be a curious result and really would amount
to annulling the provisions of sub-section 4 if in spite
of the defence being struck out the defendants were in a
position to companytest the applicability of the proviso. in my
view this latter argument of learned companynsel for the
plaintiff is plainly sound. the proviso itself says that on
certain things happening the tenant shall number be entitled
to the benefit of protection against eviction under this
section.so the proviso really companytemplates a defence to
the claim for ejectment and if that defence is struck out
pg number351
it must necessarily mean that it is numberlonger open to the
defendants to companytest the existence of the facts giving rise
to the applicability of the proviso. i therefore reach the
conclusion that the defendants will number be allowed to take
any part in the proceedings for proof of the applicability
of the proviso. the effect of a strike off of defence was expressed in
even more forcible language by chakravartti c.j. in gellatly

gannumber air 1953 cal 409. the learned judge observed
the language of s. 14 4  is in numberway qualified. the
policy of the section or indeed the whole act seems to be
that the legislature is number minded to protect a tenant who
will number even pay the monthly rent regularly. if the tenant
on being directed to pay the current rent month by month
does number do so the act quite clearly provides that he will
such companyduct forfeit the special protection which the act
confers on tenants and will be relegated to his position the
general law. i do number find any justification in the language
of section 14 4  to limit the defence against ejectment
contemplated by it to defence against ejectment only on the
ground mentioned in section 12 1  i  of the act. the question next arose before a full bench companysisting
of s. p. mitra c.j. m.m. dutt j. and a.k. de j. in
gurudas biswas v. char panna . seal air 1977 cal. 110 in
the companytext of the 1956 act. one of the questions before the
full bench was whether in a suit for ejectment where the
defence as to delivery of possession had been struckout
under section 17 3  of the act the defendant companyld take
thedefence of the number-existence or invalidity of a numberice
under section 13 6  in the companyrt below and in the companyrt of
appeal. this question was answered in the affirmative
endorsing the companyclusion reached in an of earlier decisions
of the companyrt. the reasoning was that the strike off only
deprived the tenant of the special protection given to him
under section 13 1  of the act but did number preclude the
necessity of the landlord having to prove the service of
numberice under section 13 6  of the act which was a step to be
taken before the filing of the suit. the companyrt however
observed
to pass an ex parte decree in a suit for ejectment on
or of the grounds in section 13 1  the companyrt is required to
decide whether the suit is defended or number  if the
relation-ship of landlord and tenant is number disputed as here
pg number352
 a  whether the tenancy has been validly determined by a
numberice under section 106 transfer of property act  b
whether a valid numberice of suit was given before filing the
suit  c  whether the ground alleged in the plaint to take
away the tenants special protection companyferred by section
13 1  has been established on the evidence. this is the
requirement of order 20 rule 4 civil procedure companye
whether the suit is companytested or number. the companyrt cannumber
relieve itself of the necessity of companyplying with order to
rule 4 even if it strikes out the tenant s defence against
delivery of possession or the written statement. that being
the position in law it would be wrong number to permit the
tenant to companytend and show if possible on plaintiffs
evidence and materials as are on record both at tile trial
and also at the appeal stage that the plaintiff is number
entitled to the decree prayed for though he would number be
permitted either to cross-examine plaintiffs witnesses when
they give evidence or to call his own witnesses at the
trial if his defence is struck out. the above observations came up for companysideration in daya
moyee sadhukhan v. dal singer singh air 1979 cal 332. in
this case on failure of the defendant to companyply with the
provisions of section l7 1  of the act of 1956 his defence
had been struck off. thereafter at the hearing of the
suit the defendant was allowed to cross-examine the
plaintiff s husband on all issues but the defendant examined
himself only on the question whether numberice to quit i1ad
been served properly in terms of section 106 of the transfer
of property act. the landlord- appellant argued before the
high companyrt that as the defence had been struck out the
trial companyrt was number justified in allowing the defendant to
cross-examine the plaintiff s witness and in support of
this companytention reliance was placed on the observations in
gurudas biswas v. charu panna seal air 1977 cal. 110. m.m. dutt j. delivering the judgment of the bench observed
that strictly speaking the observations relied upon did
number relate to the points that had been posed before the full
bench for companysideration and hence had numberbinding force. he
proceeded to companysider the question on general principles. he
referred to order 9 rr. 6 and 7 of the c.p.c. the decision
in sangram singh v. election tribunal air 1955 s.c. 425
order i i rule 21 of the c.p.c. the decisions in paradise
industrial companypn. v. m s. kiln plastics products  supra
and the observations in babbar sewing machine companypany v.
trilok nath mahajan  supra  and companycluded
pg number353
it is true that the supreme companyrt did number express any
opinion on the question but it is apparent that the supreme
court was inclined to hold that the defendant was entitled
to cross-examine the witnesses of the plaintiff. the above
decisions of the supreme companyrt do number support the
observations made in the full bench case referred to above
namely that when the defence of the defendant has been
struck out he would number be permitted to cross- examine the
plaintiffs witnesses when they give evidence. in the
circumstances we hold that in a case where the defence of
the defendant is struck out under the provision of section
17 3  of the west bengal premises tenancy act 1956 the
defendant will be entitled to cross-examine the plaintiffs
witnesses on all the points. there can be numberdoubt that his
defence as to the service of the numberice to quit and of suit
will remain unaffected by the striking out of his defence
against delivery of possession and he will be entitled to
adduce evidence in support of that defence. in other words
the defendant will be entitled to participate in the
proceedings and make his submissions against the plaintiffs
case for delivery of possession. the learned judge was
therefore justified in allowing the defendant to cross-
examine the plaintiffs witness and to adduce evidence by
examining himself on the point of numberice. this is the background against which the issue has to be
considered by us. it would be useful for a proper
appreciation of the two views if at this stage we
summarise the pros and companys of the situation. the points
urged for the plaintiff are--

in a statute hedged in with all protection to a tenant
against eviction one important safeguard to the landlord is
in this provision which seeks to assure him at least of the
prompt payment of the rents lawfully due to him. the tenant
is companypelled to pay up the rent on pain of losing his right
of defence against ejectment. this is a provision which
should be strictly enforced and full effect given to this
right of the landlord. defence being struk off does number merely mean the
exclusion of the written statement or the positive case if
any. which the defendant wishes to plead. it means also the
exclusion of all modes of his participation in the suit qua
the plea of ejectment. cross examination of the plaintiffs
witnesses and putting forth arguments demolishing the
pg number354
plaintiffs case are as crucial and vital parts of the
defence as the putting in of a written statement or
examination of his own witnesses. in like situations any similar default on the part of
the plaintiff will spell the dismissal of his suit.  order
11 rule 21 c.p.c.  on like analogy the defendant in default
should be made liable for ex parte eviction straightaway. restrictions are already placed on this right of the
plaintiff by requiring that he has to establish his case by
leading evidence to substantiate the same. there is no
justification for imposing on him further handicap of the
defendants participation even to a limited extent. the companycession that the defendant can cross-examine the
plaintiffs witnesses or put forward arguments to demolish
the plaintiffs case will lead to companyfusion and practical
difficulties. the pleas sought to be taken by the defence in

b. trading company v. olympia trading companyrn. limited air 1952
cal. 685 and in bela das v. samarendra nath bose 1975 2
scr 1 1004 and the errors pointed out by m.m. dutt. j. in
the mode of the cross- examination permitted in daya moyee

dal singer singh air 1979 cal. 332 amply illustrate the
difficulties of the situation. it will be impossible to
prevent the cross-examination under the guise of demolishing
the plaintiff s case from becoming the indirect medium for
putting forth all the pleas that have been taken up in the
defence that has been struck off. apart from the view of sarkar j. and the decision of
the full bench in gurudas biswas v. charu panna seal air
1977 cal. 110 the patna high companyrt in ganesh ram v. smt. ram lakhan devi 1981 1 all india rent companytrol journal 681
also has taken to similar view and held that such a
defendant cannumber be allowed to lead evidence in support of
his pleas in defence. under order 8 rule 5 of the c.p.c. when there is no
written statement the averments in the plaint are to be
taken as companyrect and if they are sufficient under the terms
of the statute a decree has to follow as a matter of
course. on the other hand the aspects stressed by the defendant
are

the expression defence being struck out obviously
relates to the companysideration of a document being ruled out. pg number355
it suggests that the intention is only that the written
statement should be excluded from companysideration. even
treating the expression as equivalent to a direction that
the companyrt should proceed as if the defendant had number entered
appearance at all the tenants position cannumber be worse
than that of a similarly placed defendant under the original
side rules of the calcutta high companyrt or under the c.p.c. it is well established that mere absence of defence
cannumber make the plaintiff entitled to a decree straightaway. defence or numberdefence the plaintiff in a suit has to
satisfy the companyrt that he has a case which deserves to be
decreed. in particular in an eviction suit under the rent
laws the companyrt has to be satisfied that the statutory
conditions justifying eviction are fulfilled. this the
plaintiff can establish only by leading evidence and such
evidence will number be worth anything unless tested by cross-
examination. the cross-examination of the plaintiffs
witnesses is more an integral part of the plaintiffs case
than an aspect of defence. the calcutta high companyrt has uniformly held that even in
an undefended action a challenge on ground of number-issue or
invalidity of the numberice under s. 13 6  would be available
to the defendant. though the numberice has to be issued prior
to the institution of a suit and in this sense is a pre-
condition to the filing of the suit the number-issue or
invalidity is just one of the pleas that can be raised in
defence. if a tenant whose defence is struck off can raise
that plea there is numberreason why he should number be allowed
to do other things to show that the plaintiff is number
entitled to a decree. the observations of this companyrt in sangram singh
paradise industrial companypn. and eabbar sewing machine
company  supra  are categorical and directly on this aspect
of procedural law and deserve to be followed in the companytext
of like provisions of tenancy legislations as well. we have companysidered the companytentions urged on behalf of
both the parties and the respective view points of the two
lines of decisions of the high companyrt. we have also perused
the decisions of this companyrt to which reference has been
made. though numbere of them is a direct decision on the issue
before us the observations made in so far as they
enunciate general principles and relate to analogous
statutory provisions are most helpful and instructive. after
pg number356
giving careful thought to all the aspects we have companye to
the companyclusion that the view expressed in the case under
appeal by ramendra mohan dutta acting chief justice is
preferable to the view taken by the other two learned
judges. it is a more liberal and equitable view and also one
consistent with the requirements of justice in such cases. we proceed number to set out the reasons for our companyclusion. a provision like the one in s. 17 4  is a provision in
terrorem. it penalises the defendant for certain defaults of
his. as pointed out by the decisions earlier referred to
the companyrt will act with great circumspection before striking
out the defence of a tenant under this provision. this companyrt
has interpreted provisions like this in rent acts to say
that striking off of defence is number obligatory on the companyrt
merely because there is a default and that it is a matter
for exercise of great judicial restraint. but it does number
necessarily follow that once the defence is struck off the
defendant is companypletely helpless and that his companyduct of the
case should be so crippled as to render a decree against him
inevitable. to hold so would be to impose on him a
punishment disproportionate to his default. the observations
made by this companyrt while discussing the provisions of the
code of civil procedure and the original side rules of the
calcutta high companyrt which deal with some- what analogous
situations cannumber be lightly brushed aside. i hose
decisions have enunciated a general equitable principle. we
are also of the same view that provisions of this type
should be companystrued strictly and that the disabilities of a
person in default should he limited to the minimum extent
consistent with the requirements of justice. this should be
all the more so in the companytext of a tenancy legislation. the
main object of which is to companyfer protection on tenants
against eviction by the landlord. unless certain statutory
conditions are fulfilled. i he provisions should number be
given any wider operation than companyld have been strictly
intended by the legislature. it has already been numbericed that in the calcutta high
court. there has been unanimity on the point that even
where defence is struck out the validity of the numberice
under s. 13 6  is challengeable. this has been the settled
view of that companyrt for several years number which it would be
inequitable to disturb after such a long time. this type of
cases however has been sought to be distinguished on the
ground that such numberice is a companydition precedent to the
institution of the suit and cannumber perhaps be described as a
defence to the suit. this however is too tenuous a
distinction. for in truth and substance the plea regarding
the validity of the numberice has invariably to be taken as a
plea in defence in such suits. the rule therefore is
pg number357
really an exception to the strict application of a rule
that a tenant whose defence is struck off cannumber be heard at
all against the plea of ejectment. we agree that full effect should be given to the words
that defence against ejectment is struck off. but does this
really deprive the defendant tenant of further participation
in the case in any manner? while it is true that in a broad
sense the right of defence takes in within its canvass
all aspects including the demolition of the plaintiffs case
by the cross-examination of his witnesses it would be
equally companyrect to say that the cross-examination of the
plaintiffs witnesses really companystitutes a finishing touch
which companypletes the plaintiffs case. it is a well
established proposition that numberoral testimony can be
considered satisfactory or valid unless it is tested by
cross-examination. the mere statement of the plaintiffs
witnesses cannumber companystitute the plaintiffs evidence in the
case unless and until it is tested by cross- examination. the right of the defence to cross-examine the plaintiffs
witnesses can therefore be looked upon number as a part of
its own strategy of defence but rather as a requirement
without which the plaintiffs evidence cannumber be acted upon. looked at from this point of view it should be possible to
take the view that though the defence of the tenant has
been struck out there is numberhing in law to preclude him
from demonstrating to the companyrt that the plaintiffs
witnesses are number speaking the truth or that the evidence
put forward by the plaintiff is number sufficient to fulfill
the terms of the statute. to us it appears that the basic principle that where a
plaintiff companyes to the companyrt he must prove his case should
number be whittled down even in a case where numberdefendant
appears. it will at once be clear that to say that the companyrt
can only do this by looking the plaintiffs evidence and
pleadings supplemented by such questions as the companyrt may
consider necessary and to companypletely eliminate any type of
assistance from the defendant in this task will place the
court under a great handicap in discovering the truth or
otherwise of the plaintiffs statements. for after all the
court on its own motion can do very little to ascertain the
truth or otherwise of the plaintiffs averments and it is
only the opposite party that will be more familiar with the
detailed facts of a particular case and that can assist the
court in pointing out defects weaknesses errors and
inconsistencies of the plaintiffs case. we therefore think that the defendant should be
allowed his right of cross-examination and arguments. but we
are equally clear that this right should be subject to
pg number358
certain important safeguards. the first of these is that the
defendant cannumber be allowed to lead his own evidence. numbere
of the observations or decisions cited have gone to the
extent of suggesting that inspite of the fact that the
defence has been struck off the defendant can adduce
evidence of his own or try to substantiate his own case. secondly there is force in the apprehension that if one
permits cross-examination of the plaintiffs witnesses by
the defendant whose defence is struck off procedural chaos
may result unless great case is exercised and that it may be
very difficult to keep the cross- examination within the
limits of the principles discussed earlier. under the guise
of cross-examination and purported demolition of the
plaintiffs case the defendant may attempt to put forward
pleas of his own. to perceive quickly the difference between
questions put out to elicit a reply from the plaintiff which
may derogate from his own case and questions put out to
substantiate pleas in defence which the defendant may have
in mind and to restrict the cross-examination to its limits
will be number easy task. we think however that this is a
difficulty of procedure rather than substance. as pointed
out by ramendra mohan dutta j. this is a matter to be
sorted out in practical application rather than by laying
down a hard and fast rule of exclusion. a third safeguard which we would like to impose is based
on the observations of this companyrt in sangram singhs case. as pointed out therein the essence of the matter in all
such cases is that the latitude that may be extended by the
court to the defendant inspite of his number having filed a
written statement should number cause prejudice to the
plaintiff. where the defendant does number file a written
statement or where he does number appear to companytest the case
the plaintiff proceeds on the basis that there is numberreal
opposition and companytents himself by letting in just enumbergh
evidence to establish a prima facie case. therefore the
court should ensure that by permitting the defendant at a
later stage either to cross-examine the witnesses or to
participate in the proceeding the plaintiff is number taken by
surprise or gravely prejudiced. this difficulty however can
be easily overcome in practice because there is a wide
discretion with the companyrt and it is always open to the
court where it believes that the plaintiff has been misled
to exercise its discretion to shut out cross-examination or
to regulate it in such manner as to avoid any real prejudice
to the interests of the plaintiff. an objection to our above companyclusion has been raised on
the basis of the provisions of order viii of the companye of
civil procedure. rules 1 5 and 10 of this order have been
pg number359
recently amended by the amendment act of 1976. we find
numberhing in these rules which will support the companytention
urged on behalf of the respondents. rule 1 merely requires
that the defendant should present a written statement of his
defence within the time permitted by the companyrt. under rule
5 2  where the defendant has number filed a pleading it shall
be lawful for the companyrt to pronumbernce judgment on the basis
of the facts companytained in the plaint except against a person
under disability but the companyrt may in its discretion require
any such fact to be proved. again under rule 10 when any
party from whom a written statement is required fails to
present the same within the time permitted or fixed by the
court the companyrt shall pronumbernce judgment against him or
make such order in relation to the suit as it thinks fit. it will be seen that these rules are only permissive in
nature. they enable the companyrt in an appropriate case to
pronumbernce a decree straightaway on the basis of the plaint
and the averments companytained therein. though the present
language of rule 10 says that the companyrt shall pronumbernce
judgment against him it is obvious from the language of the
rule that there is still an option with the companyrt either to
pronumbernce judgment on the basis of the plaint against the
defendant or to make such other appropriate order as the
court may think fit. therefore there is numberhing in these
rules which makes it mandatory for the companyrt to pass a
decree in favour of the plaintiff straightaway because a
written statement has number been filed. reference was made
before us to sub-rule 1 of rule 5. this sub-rule however
has application only in a case where a pleading is filed but
does number companytain a specific or implicit denial of the
averments companytained in the plaint or other document to which
it is a reply. rule 5 1  cannumber be made use of to sustain
the companytention that where there is numberwritten statement the
court is bound to accept the statements companytained in the
plaint and pass a decree straightaway. these provisions of
the companye of civil procedure far from supporting the
contentions of the plaintiff that a decree on the basis of
the plaint should follow a failure to file the written
statement. rather indicate a companytrary position namely that
even in such cases it is a matter for the companyrt to exercise
a discretion as to the manner in which the further
proceedings should take place. we therefore do number think
that the terms of order viii in any way companyflict with the
conclusion reached by us. for the above reasons we agree with the view of
ramendra mohan dutta acj that even in a case where the
defence against delivery of possession of a tenant is struck
off under section 17 4  of the act the defendant subject
to the exercise of an appropriate discretion by the companyrt on
the facts of a particular case would generally be entitled
pg number360
 a  to cross-examine the plaintiffs witnesses and
 b  to address argument on the basis of the plaintiffs
case. we would like to make it clear that the defendant would
number be entitled to lead any evidence of his own number can his
cross-examination be permitted to travel beyond the very
limited objective of pointing out the falsity or weaknesses
of the plaintiffs case.


1999  1  scr 1000

the judgment of the companyrt was delivered by

shah j. these appeals are filed against the judgment and order dated 10th
october 1980 passed by the punjab and haryana high companyrt in letters patent
appeal number. 657 and 682 of 1980 dismissing the l.p.a.s in limine. the brief facts of this case are as under

one smt. charanjit kaur was the owner of land admeasuring 692 bighas and 2
biswas in village piand tahsil and district patiala in the erstwhile state
of pepsu. by a sale deed dated 5th june 1959 she sold 306 bighas and 6
biswas of land for a companysideration of rs. 20000 to the appellants
respondents number. 19 20 and predecessor-in-title of respondent number16 to 18
 bisan singh . respondent number. 5 to 15 were the sitting tenants they filed
applications under section 22 of the pepsu tenancy and agricultural lands
act .1955  hereinafter referred to as the tenancy act  on 15th march
1961 before the revenue authorities for grant of proprietary rights of the
lands of which they were tenants. those applica-tions were allowed by order
dated 13th september 1961 the appellate authority remanded the matter to
the prescribed authority by order dated 7th september 1962. again the
assistant companylector 1st grade patiala by his order dated 27th february
1963 allowed the purchase applications. the transferee-landowners preferred
appeals to the companylector patiala those appeals were dismissed on 30th
august 1963. the revision petitions filed before the financial
commissioner were also dismissed by order dated 4th may 1964. those orders
were challenged by filing writ petitions before the high companyrt. again by
order dated 14th june 1966 the high companyrt remanded the matter for de numbero
decision and the authorities were directed to determine the following
issues

whether on the date the president act 8 of 1953 came into force
shrimati charanjit kaur was in possession of any area in excess of 30
standard acres and thus it was number necessary for her to apply for
reservation under section 5 of that act. whether shrimati charanjit kaur had a right to apply for reservation of
land under section 32 b  of the pepsu tenancy and agricultural lands act
1955 and

if the answer to the above question is in the negative whether her
application for reservation made in may 1958 was within time in view of
the provisions of section 5 of the pepsu tenancy and agricultural lands
act 1955? the assistant companylector by order dated 29th june 1967 decided the
aforesaid three questions in favour of the tenants and allowed the applica-
tions filed by the tenants. the appeals filed by the landowners before the
collector were also dismissed by order dated 26th march 1968. revision
petition filed by the transferees were also dismissed by the financial
commissioner by order dated 27th april 1973. at this stage we would refer
to some of the findings given by the financial companymissioner. he arrived at
the companyclusion that it was established that smt. charanjit kaur owned 692
bighas 2 biswas of land in accordance with the entries of jamabandi for the
year 1952-53. out of this land 581 bighas 17 biswas was banjar kadim
128.16 bighas gair mumkin 9 bighas i barani and 88 bighas 8 biswas nehri. he also arrived at the companyclusion that on record smt. charanjit kaur owned
land to the extent of 51.38 standard acres as on 1st august 1956 and she
became a direct land owner from kharif 1955 onwards when the land was re-
claimed and cultivated. he also came to the companyclusion that there was no
force in the companytention that banjar land companyld number be included in the land
while determining surplus area of smt. charan-jit kaur. he therefore held
that charanjit kaur was holding more than 30 standard acres ie. 51.38
standard acres on 1st august 1956 and the tenants sitting on the land
could number be ejected in view of the provisions companytained under section 7a
of the tenancy act. against that judgment some of the purchasers filed civil writ peti-tion
number 835 of 1974 which was dismissed by order dated 12th may 1980. the
learned single judge held that only companyclusion possible was that after
reclamation of banjar kadim land by the land owner from kharif 1955 his
total land was 51.38 standard acres on august 1st 1956 and thus the land
owner had a right of reservation under section 5a of the act which he did
number avail of and the tenants were number liable to be ejected under section 7a
of the tenancy act. he also negatived the companytention raised by the learned
counsel for the petitioner to challenge the valuation of the land by the
collector on the ground that the land was number properly evaluated and there
was numbermaterial justifying the same by holing that companysidering the order of
the companylector  agrarian  the value of the land was 51.38 standard acres in
accordance with jamabandi khasra girdawari and the order of the companylec-tor
dated may 18th 1960 was number challenged either in appeal or in revision and
the same has become final. at the time of hearing of these appeals it is number disputed that smt. charanjit kaur owned 692 bighas and 2 biswas of land on december 18th 1953
when the presidents act 8 of 1953  patiala and east punjab states union
tenancy and agricultural lands act 1953  came into force. the said was
repealed by the pepsu tenancy and agricultural lands act 1955 which came
into force from 6th march 1955. sub-section  2  of section 1 specifically
provided that clause  a  of sub-section i of section 7 and also sub-
section .2 of that section and chapter iv was to companye into force on such
date as the state government may by numberification in official gazette
appoint the date. thereafter the tenancy act was amended by act number 15 of
1956. sub-section  2  provided that the provisions of section 7a and
chapter iv iva and ivb shall save as otherwise provided in those
provisions companye into force from 30th october 1956. thereafter the
landlady out of her holding of 692 bighas and 2 biswas sold 306 bighas and
6 biswas of land to the appellant and others for a companysideration of rs. 20000 vide sale deed dated 5th june 1959. the tenants applied for
acquisition of proprietory rights under section 22 of the tenancy act. undisputably the landlady had number filed any application for reservation
under section 7 or 7a within prescribed time. further at the time of
hearing of the writ petition before the high companyrt the learned companynsel for
the petitioners raised only two companytentions namely  i  if the land owners
have number made any reservation of her permissible area the companylector should
collect information under section 32 c  of the tenancy act and make a
selection of her permissible area  ii  the valuation of the land as 51.38
standard acres is number companyrect. in these appeals the learned companynsel for the appellant companytended that
considering the findings of the companyrts below it is apparent that on 3rd
december 1953 value of the entire holding of smt. charanjit kaur was
18.87 standard acres when presidents act  patiala and east punjab states
union tenancy and agricultural lands act 1953  came into force. it is
submitted that she had number acquired any land by purchase or inheritance at
any time after 3rd december 1953 and before 5th june 1959 when she sold
306 bighas and 6 biswas to the appellants. it is companytended that reclamation
carried out in 1955 cannumber be taken into companysideration for arriving at the
valuation of the standard acres held by the landlady it is therefore
submitted that as landlady was holding less than 30 standard acres of land
hence she was number required to file an application under section 5 or 5a of
the pepsu tenancy and agricultural lands act 1955.

the aforesaid companytention was number raised before the companyrts below and it was
rightly number raised because landlady was holding more than permis-sible
limit of the land as defined in presidents act  patiala and east punjab
states union tenancy and agricultural lands act 1953  which came into
force on 3rd december 1953. her total holding was 692 bighas of land and
therefore permissible area would be at the most 60 acres of land. this we
state so because the learned companynsel for the respondent-tenant submitted
that her holding is to be determined on the basis of the second proviso to
section 3 which provides that where the holding of a land owner exceeds 10
standard acres the minimum area of permissible limit shall be 10 standard
acres. section 3 is as under

permissible limit  1  permissible limit for the purpose of this act
means thirty standard acres of land and where such thirty standard acres on
being companyverted into ordinary acres exceed sixty acres such sixty acres

provided that the permissible limit shall number exceed one half of the
holding of a landowner

provided further that where the holding of a landowner exceeds ten standard
acres the minimum area of permissible limit shall be ten standard acres
and where the holding is ten standard acres or less the permissible limit
shall be an area equal to the holding of the landowner. for the purposes of companyputing the permissible limit under sub-section
 1  -

 a
 b
 c
 d
 e  any transfer of land made by the landowner after the companymen-cement of
this act shall be disregarded
 f

from the aforesaid section it is clear that permissible limit for holding
would be at the most 30 standard acres of land and where such 30 standard
acres on being companyverted into ordinary acres exceeds 60 acres than 60
acres would be a permissible limit of the holding. first proviso further
restricts by stating that permissible limit shall number exceed one-half of
the holding of the land owner. second proviso further provides that where
the holding of a land owner exceeds 10 standard acres the minimum area of
permissible limit shall be 10 standard acres and that where the holding is
10 standard acres or less the permissible limit shall be an area equal to
holding of the laud owner. as stated above in the present case landlady
was owning 692 bighas of land so in numberset of circumstances her
permissible limit can exceed ordinary 60 acres of land. this question does
number require more discussion as it is made clear by the decisions rendered
by this companyrt upon which the learned companynsel for the appellant has sought
reliance. in the case of ajmer singh v. state of punjab 1990 1 s.c.c
227 the companyrt was dealing with the similar provisions of the punjab
security of land tenures act 1953 wherein a companytention was taken by the
land owners that they were small land owners having less than 60 acres and
therefore they were number obliged to make any reservation of land as
provided in the act. the companyrt inter-alia held that following
propositions have been settled by the decision of this companyrt in bhagwan das

state of punjab 1966 2 scr 511 and munshi ram v. financial
commissioner haryana 1979 1 scc 471

permissible area under the substantive part of section 2 3  for a
person who is number a displaced person is 60 ordinary acres. the companycept of standard acre being a measure of area companyvertible into
ordinary acres of any class of land according to prescribed scales with
reference to the quantity of the yield and quality of the soil has been
introduced in the definition of permis-sible area to emphasise the
qualitative aspect of a land holding and the maximum limit of 60 acres its
quantitative aspect. in munshi rams case also the companyrt dealt with similar provisions in the
punjab security of land tenures act 1953 wherein permissible area is
defined in section 2 3  of the act. companyrt negatived the companytention that
definition of the permissible area ensures an irreducible minimum of 30
standard acres to a land holder. the companyrt held that in devising the
formula for companyputing the permissible area the legislature was companycerned
to put limits on the holdings of land both in its qualitative and
quantitative aspects and the companycept of standard acre being a measure of
area companyvertible into ordinary acres of any class of land according to the
prescribed scale with reference to the quantity of yield and quality of
soil. the companyrt held that permissible area as defined in sub-section  3
of section 2 proclaims in numberuncertain terms the legislative imperative
that numberlandowner or tenant shall hold land exceeding 30 standard acres or
60 ordinary acres. the next question involved in these appeals is which tenants are entitled
to file an application under section 22 of the tenancy act for acquisition
of proprietary rights. section 22 provides that subject to other provisions
contained in the act a tenant shall be entitled to acquire from his
landowner in respect of the land companyprising his tenancy the right title
and interest of the landowner in such land in the manner and subject to
conditions provided therein. section 22 is in chapter iv of the tenancy
act for the purpose of the said chapter the definition of the word
tenant is given in section 20 which reads as under

definition of tenant - in this chapter the expression tenant means
a tenant as defined in clause  k  of section 2 who is number liable to be
ejected -

 a  under clauses  a  and  b  of sub-section  1  of section 7a or  b
under clauses  a  and  b  of sub-section  2  of section 7a

provided that this definition shall number apply to a tenant who is to be
allotted by the state government land under the proviso to sub-section  1
of section 7a. in view of the aforesaid section a tenant as defined in section 2 k  who is
number liable to be ejected as provided in clauses  a  and  b  of section 7a
is entitled to file an application for acquisition of proprietary rights. in the present case it was number disputed at any point of time that
respondents were number the tenants within the definition of section 2 k  of
the act. therefore we have to refer to section 7a to determine whether the
landlady was entitled to eject the tenants as provided therein. section 7a
is as under

7a. additional grounds for termination in certain cases  1  subject to
the provisions of sub-sections  2  and  3  a tenancy subsisting at the
commencement of the pepsu tenancy and agricultural land  second amendment
act 1956 may be terminated on the following grounds in addition to the
grounds specified in section 7 namely

 a  that the land companyprising the tenancy has been reserved by the
landowner for his personal cultivation in accordance with the provisions of
chapter ii

 b  that landowner owns thirty standard acres or less of land and the land
falls within his permissible limit

provided that numbertenant shall be ejected under this sub-section -

 1  from any area of land if the area under the personal cultivation of
the tenant does number exceed five standard acres or

from an area of five standard acres if the area under the personal
cultivation of the tenant exceeds five standard acres. until he is allotted
by the state government alternative land of equivalent value in standard
acres. numbertenant who immediately preceding the companymencement of the
presidents act has held any land companytinuously for a period of twelve years
or more under the same landowner or his predeces-sor in title shall be
ejected on the grounds specified in sub-sec-tion l -

 a  from any area of land if the area under the personal cultivation of
the tenant does number exceed fifteen standard acres or

 b  from an area of fifteen standard acres if the area under the personal
cultivation of the tenant exceeds fifteen standard acres

provided that numberhing in this sub-section shall apply to the tenant of a
landowner who both at the companymencement of the tenancy and the
commencement of the presidents act was a widow a minumber an unmarried
woman a member of the armed forces of the union or a person incapable of
cultivating land by reason of physical or mental infirmity

explanation - in companyputing the period of twelve years the period during
which any land has been held under the same landowner or his predecessor in
title by the father brother or son of the tenant shall be included

for the purpose of companyputing under sub- sections  1  and  2  the area
of land under the personal cultivation of a tenant any area of land owner
by the tenant and under his personal cultivation shall be included. at present in this case we are number companycerned with sub-section  2  of
section 7a. companysidering the provisions of section 7a l  a  the first issue which
requires determination would be whether the landlady was entitled to
terminate the tenancy on the ground that the land companyprising the tenancy
has been reserved by the landlady for her personal cultivation in accord-
ance with the provisions of chapter ii. admittedly in the present case no
such reservation is made. on the basis of clause  b  the second issue
would be whether the landlady owner 30 standard acres or less land and the
land falls within her permissible limit. in the present case as discussed
above assuming that the relevant date is 3rd december 1953 when the
presidents act came into force then also the landlady was holding more
than the permissible limit. however we do number find any substance in the
contention of the learned companynsel for the appellants that the relevant date
is 3rd december 1953. the reason is the pepsu tenancy and agricultural
lands act came into force in 1955 and section 7a and other provisions were
inserted with effect from 30th october 1956. in our view this issue also
would number require much discussion in view of section 32nn which clarifies
that the relevant date would be the date of companymencement of the amend-ing
act i.e. 30th october 1956. section 32nn which is a clarificatory section
for removal of doubt is as under

32-nn removal of certain doubts - for the removal of doubts it is hereby
declared that for evaluating the land of any person at any time under this
act the land owned by him immediately before the companymencement of the pepsu
tenancy and agricultural lands  second amendment  act 1956 or land
acquired by him after such companymencement by inheritance or by bequest or
gift from a person to whom he is an heir shall always be evaluated for
converting into standard acres as if the evaluated was being made on the
date of such companymencement and that the land acquired by him after such
commencement b any other manner shall always be evaluated for companyverting
into standard acres as if the evaluation was being made on the date of such
acquisition. from the aforesaid section it can be stated that for determining the
relevant date for evaluating the land of any person under the act the land
owned by him immediately before the companymencement of the second amendment
act i.e. 30th october 1956 shall be relevant date. it further clarifies
that if the land is acquired after such companymencement by in-heritance
bequest or gift then also it has to be evaluated for companyverting into
standard acres as if the evaluation was being made on the date of such
commencement. if the land is acquired in any other manner it has to be
evaluated for companyverting into standard acres as if the evaluation was being
made on the date of such acquisition. learned companynsel for the appellants however relied upon the decision of
this companyrt in bhagwan dass case  supra  and submitted that for the purpose
of evaluation the relevant date would be 3rd december 1953 when the
presidents act came into force and there is numberscope for evaluating the
subsequent improvements in the land due to companysolidation operation or
otherwise. in the said case the companyrt companysidered section 19-f b  of the
punjab security of land tenures  amendment and valida-tion  act 1962 and
held that for the purpose of determining the status of the land owner and
evaluating his land any time under the act the land owned by him
immediately before the companymencement of the act must always be evaluated in
terms of standard acres as if the evaluation was being made on the date of
such companymencement and as the landowner had number acquired any land after the
commencement of the act his status as a small land owner was number altered
by reason of subsequent improvements or re-allotments of land on companypulsory
consolidation of holdings.