Sarkar, J. - (1.) In this suit, which is for ejectment, I have already delivered a judgment striking out the defence against ejectment, as the defendants had not complied with an order made under Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Though the defence may have been struck out, the plaintiff has yet to prove its case before a decree can be passed in its favour, for the striking out of the defence does not amount to an admission by the defendants of the plaintiff's claim, Of course, I am now only concerned with that part of the plaintiff's claim which deals with the ejectment of the defendants. 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 present judgment, I propose to deal with the defendants' right to oppose the decree for ejectment
(2.) The first ground on which the defendants pressed their claim is based on Ch. XIV, Rule 3 of the rules of the Original Side of this Court. That rule provides that "where the suit is heard ex parte against any defendant, such defendant may be allowed to cross-examine, in person, the plaintiff's witnesses, and to address the Court." Learned counsel for the defendants argued that his clients' defence having been struck out, the suit is being heard ex parte against them and therefore he is entitled to cross-examine and to address the Court, and he proposed to do so not as counsel but as agent of his clients. Mr. Roy for the plaintiff has contended that the ex parte hearing contemplated in this rule is the ex parte hearing provided under the Original Side Rules. He has drawn my attention to Rules 3 and 4 of Ch. IX of the Original Side Rules. The ex parte hearing contemplated in these rules takes place when the defendant does not either enter appearance or fails to file a written statement. Mr. Roy contends that no other kind of ex parte hearing is contemplated by the rules and that being so, the ex parte hearing mentioned in Ch. XIV Rule 3 cannot be taken as including a case where the defence after having been put in stands struck out. Though I am not prepared to reject this argument, I would prefer to rest my decision on a different ground. Section 14(4) of the Rent Act provides that upon default in paying the rent in terms of an order for payment thereof made under it, "the Court shall order the defence against the ejectment to be struck out 'and the tenant to be placed in the same position as if he had not defended the' claim to ejectment." It seems to me that if I allow the defendants in this case' to cross-examine the plaintiff's witnesses on their evidence as to the facts establishing the claim to ejectment and to address the Court 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 cannot do. This view is supported by what P. B. Mukharji J. said in 'DEBENDRA NATH DUTT v. SATYABALA DASSI', 54 Cal W N 110. The learned Judge said at p. 116 : "I have not 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.........A defendant in my judgment may ably and successfully defend a suit against him by cross-examination and arguments." For this reason I am unable to hold that the defendants are in this case entitled to cross-examine the plaintiff's witnesses and address me on that part of this case which is concerned with their ejectment.
(3.) Then it was said by learned counsel for the defendants that under Section 14, Sub-sections (1), (2) and (3), I cannot, in any event, pass a decree in ejectment forthwith. These Sub-section are set out below : "14.(1) If in a suit for recovery of possession of any premises from the tenant the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 12, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three-eights per centum per annum from the day when the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order. (2). Such date fixed for payment shall be fifteenth day from the date of the order, excluding the day of the order. (3). If within the time fixed in the order under Sub-section (1), the tenant deposits in the Court 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 Court. In default of such payment, the Court shall proceed with the hearing of the suit: Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if 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.";