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Judgment
Sugato Majumdar, J. :
The instant Second Appeal is preferred against the judgment and decree dated 18/08/2006 passed by the Learned Additional District Judge, Sealdah in Title Appeal No. 38 of 2006 whereby the said Learned Appellate Court upheld the judgment and decree dated 16/02/2004 and 26/02/2004 respectively, passed in Title Suit No. 211 of 1998 by the Learned Civil Judge, Junior Division, 1st Court at Sealdah.
The original Plaintiff’s case was that he was the owner of the suit property. The Appellant/Defendant was a monthly tenant in the suit property at a monthly rent of Rs.60/- per month payable according to the English calendar month. The original Plaintiff determined the tenancy in terms of the ejectment notice dated 22/02/1997 on the grounds of reasonable requirement of the original Plaintiff and his family members, unauthorized construction, default in payment of rent since the month of October, 1995. Since the Appellant/Defendant did not quit and vacate the suit premises, the original Plaintiff initiated the Title Suit No. 211 of 1998 in the Trial Court.
The Appellant/Defendant appeared in the suit and contested the same by filing written statement denying all the allegations. It was contended that the Appellant/Defendant had been using the suit premises since long and had been paying rent regularly. The Appellant/Defendant denied making of any construction changing the nature and character of the suit property. It was also contended that the original Plaintiff had other residences for own use and accommodation. Accordingly, it was pleaded that the suit should be dismissed.
On the basis of the rival pleadings, the following issues were framed:-
Is the suit maintainable in its present form and prayer?
Is there any cause of action for bringing the suit?
Does the Plaintiff reasonably require the suit premises?
Has the Defendant caused damage to the suit property?
Is the Defendant defaulter in payment of rent?
Was the notice upon the Defendant to suit, legal, valid and sufficient?
Is the Plaintiff entitled to get decree as prayed for?
The Learned Trial Court on appreciation of evidence adduced, decided the Issue Nos. 1 & 2 in favour of the original Plaintiff; decided the Issue Nos. 3 & 4 in favour of the Appellant/Defendant. However, Issue Nos. 5 to 7 were decided in favour of the original Plaintiff and decreed the suit for eviction. The Learned Trial Court took note of the fact that an application filed under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 had been allowed in terms of the Order No. 20 dated 11/01/2002 and consequently defense had been struck off. It was also observed that one of the grounds of determination of tenancy was habitual default in payment of rent from the month of October, 1995. There was no cross-examination on this point. Accordingly, the Learned Trial Court came to the conclusion that the original Plaintiff had been able to establish that the Appellant/Defendant defaulted in payment or rent and passed the decree of eviction.
The First Appeal was filed by the Appellant/Defendant which was registered as Title Appeal No. 38 of 2006. The Learned First Appellate Court, being the Additional District Judge at Sealdah, in terms of the impugned judgment upheld the judgment and decree passes by the Learned Trial Court.
On being aggrieved and dissatisfied the instant appeal was preferred.
It is directed that the Appeal is admitted on Ground Nos. II, III & IX of the memorandum of appeal which are as follow:
II. For that the Learned Courts below misdirected itself in not taking in judicial note the challans showing the payment of rents without a single default filed with the written argument and thereby allowing technicalities to prejudice the interest of justice by ignoring the reason for the same.
III. For that the Learned Courts below should have given an opportunity to the appellant to have his application u/s 17(1) and 17(2A) (b) of the West Bengal premises Tenancy Act be heard after condoning the delay in the interest of justice specially in the background of the peculiar circumstances of the case.
IX. For that the Learned Appellate Courts below should have appreciate the fact that mere non-filing of objection to the application u/s 17(3) cannot and does not alter the real fact of payment rent.
Mrs. Mitra, the Learned Counsel for the Appellant submitted that the Trial Court as well as the First Appellate Court erred in law and both the courts below failed to consider that the word “shall” use in Section 17 (3) should be read as “may” and provision of striking off defence should be read as directory and not mandatory. The Court is invested with discretion in this regard. It was further submitted that procedural laws must not be onerous but should be construed and interpreted as well as applied for the end of justice. In this case, challans were given to the Learned Advocate who did not deposit. However, challans were adduced before this Court. The Court should take judicial notice of the challans filed with the notes of argument at the time of final hearing of the suit. The Appellant/Defendant became sufferer for latches of the Advocate. In that situation a justice- oriented approach was expected from the Trial Court as well as from the First Appellate Court. The Learned Counsel relied upon M/s B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick & Anr. [(1987) 2 SCC 407], State of Punjab & Anr. Vs Shamlal Murari & Anr. [(1976) 1 SCC 719] and one Single Bench decision of this Court in In Re: Sadhu Chowdhury (92 C.W.N 908).
Contention of Mrs. Mitra, the Learned Counsel for the Appellant/Defendant is considered.
The aforesaid decisions had been taken in specific facts and circumstances of the respective cases. M/S B.P. Khemka’s case (supra) was decided in a different factual matrix. During the pendency of eviction proceedings the West Bengal Premises Tenancy (Amendment) Ordinance 6 of 1967 [later replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969] came to be promulgated with effect from August 26, 4967. By Section 2 of the Ordinance Sub-sections (2-A) and (2-B) to Section 17 of the Act were inserted. Section 5 of the Ordinance gave retrospective effect to the amendments by providing that the amendments made by Section 2 of the Ordinance shall have effect in respect of all suits including appeals which were pending at the date of commencement of the Ordinance. The amendments inter alia enabled tenants who were in default to apply to the court and pay the arrears of rent in instalments and thereby avert their eviction. In this context the tenant filed application under Section 17 to deposit arrear of rent and arrear of rent had been deposited.
The application for striking out of defence under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 was filed before the Trial Court. The Trial Court in terms of Order No. 20 dated 11/01/2002 allowed the said application. Defence had been struck off. Nothing is there on the record that the said order was challenged in higher forum. As a result, the order became as sacrosanct; at subsequent stage that cannot be agitated because of bar created by the principle of res-judicata. In Satyadhyan Ghoshal & Ors. vs Deorajin Devi & Anr. (AIR 1960 SC 941), three Judges’ Bench of the Supreme Court of India held:
“The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether a trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.”
Once the said interlocutory order stands as sacrosanct and operate as res-judicata, the same cannot be re-opened or considered at the time of final hearing of the trial.
There is another aspect of the matter. Challans were produced before the Court as along with notes of argument. Those challans had not been adduced as evidence. When the Appellant failed to adduce evidence, the Court cannot cure that defect acting as a curator. Section 57 of the Indian Evidence Act, 1872 provides for taking judicial notice of certain facts by a court. The concerned challans do not come within ambit of Section 57 and do not belong to the class of documents mentioned in the provision. It is absurd proposition that documents which could have been produced but had not been adduced in evidence should be taken into consideration under Section 57 of the Act defenestrating the other provisions applicable for adducing evidence.
More important issue is that the Defendant did not cross-examine the Plaintiff on the point of default in payment of rent. Effect of default of such cross-examination had been decided by the Division Bench of this Court in A.E.G. Carapiet v. A.Y. Derderian, (AIR 1961 Cal 359) in the following words:
“9.The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.”
In fact, failure to cross-examine on the point of default of rent stood admitted. Therefore, at the stage of Second Appeal, the Appellant cannot be heard to say that there was default of payment of rent and the factual matrix cannot be re-opened.
Another point was agitated as a substantial question of law was that the application under Section 17(1) and 17(2)(a) & (b) of the West Bengal Premises Tenancy Act, 1956 should be heard, condoning delay, the point is reiterated that the order was passed by the Trial Court that should have been challenged in Appeal. At the end of trial, the same cannot be re-agitated, once decided.
For reasons stated above, this Court is of opinion that both the Trial Court and the First Appellate Court correctly decided the case. There is, therefore, no need of interference by this Court.
Accordingly, it is ordered that the instant Appeal stands dismissed. The Appellant shall hand over possession within 60 days from the date of drawing up of the decree in case of default of which the Respondent/Plaintiff would be at liberty to draw up the execution proceeding.
The instant appeal stands disposed of along with all pending applications, if any.
T.C.R be returned.