KAMAKSHYA SINGH DEO Vs. MODULA INDIA
HIGH COURT OF CALCUTTA
KAMAKSHYA SINGH DEO
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RAMENDRA MOHAN DATTA, j. -
(1.) THE points that have been raised in this Full Bench Reference arose out of the judgment and order of Mrs. Khastgir, J. passed on November 16, 1981.
(2.) SUCH points in substance are, whether the defendant whose defence against delivery of possession has been struck out under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 would still have the right to cross-examine the plaintiff's witness on all points inclusive of the points in respect whereof such defence has been struck out. The further point is whether, under such circumstances, the defendant a tenant would still have the right to call his own evidence on all points. Mr. Ghosh, however, appearing on behalf of the tenant respondent did not press the point because the learned Advocate was of the view that since such a plea in defence was taken away, there could be no sense in calling his own witness on such point. To my mind, Mr. Ghosh has rightly submitted so because there could be no two opinions about it after the defence against delivery of possession is struck out. In the absence of any issue to that effect the evidence of such witnesses would be of no avail.
The learned Judge made the reference at a time when the suit reached the state of cross-examining the plaintiff in the suit for recovery of possession in which the defence against delivery of possession was directed to be struck out under sub-section (3) of Section 17 of West Bengal Premises Tenancy Act, 1956. At that stage the learned Advocate appearing on behalf of the defendant contended that leave should be given to cross-examine the plaintiff on all points as set out in the written statement. The learned Advocate further asked for leave to examine the defendant and to give evidence. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the defendant and to give evidence. On behalf of the plaintiff it was contended that the defendant was not entitled to examine the plaintiff on all the points taken in the written statement nor could he examine himself on the points as set out in the written statement.
(3.) THE question to be answered by the Full Bench has not been formulated by the learned Judge and, accordingly, in the fitness of things the observation of the learned Judge in making the reference may conveniently be set out as follows.;
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