Civil Appeal No 173 of 1983
PG NO 336 From the Judgment and Order dated 3091982 of the Calcutta High Court in Suit No 568 of 1979
Ajay Nath Ray Surendra Dube and Mrs Indira Sawhney for the Appellant
SK Kapur Ranjan Deb Gangadeb and BP Singh for the Respondent
The Judgment of the Court 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 context of the West Bengal Premises Tenancy Act 1956
The appeal arises from the judgment of a Full Bench of the Calcutta High Court constituted to resolve a conflict in the earlier decisions of the same court on this issue
The Full Bench by a majority of two PK Banerjee and Chittatosh Mookerjee JJ to one Ramendra Mohan Datta Acting CJ 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 cannot cross examine the witnesses called by the plaintiff excepting on the point of notice under section 136 of the said Act
The correctness 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 considered 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 not result in a judgment order or decree against which leave to appeal could be granted
Thereupon the aggrieved party filed a petition for special leave to appeal before this Court which was granted
It is in this manner that the issue has been brought up before this Court
A detailed factual background is not 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 Court 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 NO 337 delivery of possession
The appellant a company 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 court
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
No orders 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 173 of the Act
The correctness of this order striking out the defence of the tenant has become final and is no longer in issue
It however appears that the tenant contended before the trial court though the details are not available on record that the order under section 173 could 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 plaintiff s witnesses b of pointing out to the court the factual and legal infirmities in the plaintiff s 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 counsel for the appellant also urged before us that though the defendant had conceded before the High Court that it will not be entitled to lead any evidence the reference being of a general question regarding the consequences of a strike off we should consider 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 171 imposes an obligation on the tenant to deposit into the Court 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 NO 338 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 Court 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 non 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 consequence set out in sub section 3 will follow
That sub section reads 3 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 Court 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 consideration a The West Bengal Act XVII of 1950 which preceded the one under consideration was somewhat different in its language
section 141 of that Act dealt with a case where the suit was based on the ground of non payment of rent
The Court could 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 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 PG NO 339 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 4 If the tenant contests 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 court 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 court shall order the defence against 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
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so b Our attention has been drawn to two provisions of the Rules framed by the Calcutta High Court 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 another or others has or have not 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 Court Where a 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 but unless the Court otherwise specially orders evidence will not be received on his behalf nor will he be allowed the assistance of an Advocate or Attorney
PG NO 340 c Another provision that may be referred to in this context is the one in Order 11 rule 21 of the Code of Civil Procedure CPC This rule reads thus 211 Non compliance with order for discovery Where any party fails to comply 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 not defended and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly after notice to the parties after giving them a reasonable opportunity of being heard
2 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 counsel submits that a tenant or defendant whose defence is struck out is in the same position as if he had filed no written statement in the suit
It is pointed out that the Original Side Rules of the Calcutta High Court permit a defendant who is said to be ex parte either by not filing a written statement or by non appearance to cross examine the plaintiff s witnesses and to address the court not only that the rules confer a discretion in the court 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 not because of his default be permitted to plead the positive case which he had or could have put forward in his written statement or substantiate it by leading evidence on his side
This cannot preclude him from putting forward the plea that the plaintiff is not entitled to a decree as he has not proved his case
This it is said he is entitled to do either by cross examining the plaintiff s witnesses and thus demolishing the plaintiff s case or addressing arguments either on points of law or even on the facts in the light of the plaintiff s evidence as tested by his cross examination
Even this cannot it is urged be an invariable rule and the Court should always have a discretion as provided for in the Calcutta High Court Rules to relax its rigidity depending upon the circumstances of each case
The position in an eviction Petition it is said cannot be much different
Learned counsel urges that is a well established principle PG NO 341 particularly under the Rent Acts that it is for the plaintiff to satisfy the court that the conditions 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 not absolved from this responsibility and it is also necessary for the Court in such cases to satisfy itself that the plaintiff is entitled on the terms of the statute to the relief prayed for vide KK Chari vs RM Seshadri AIR  and Inder Mohan Lal vs Ramesh Khanna  In doing this the Court can and should take the help and assistance of the defendant and counsel
It should be open to the defendanttenant even if he cannot put up a positive case to show to the Court that the plaintiff s suit or petition should fail on its own inherent weaknesses
Learned counsel has relied on certain decisions and the observations therein in support of his submissions
These may be referred to An early decision of this Court Sangram Singh vs Election Tribunal Kotah Bhurey Lal Baya   was concerned with the question whether a defendant who had been set ex parte at some of the hearings after the first hearing could be permitted to appear and take part in later hearings without the ex parte order being set aside
The Court after referring the terms of the Order XVII Rule 2 of the Code of Civil Procedure observed thus The learned Judges who constituted a Full Bench of the Lucknow Chief Court Tulsha Devi vs Sri Krishna thought that if the original ex parte order did not 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 Court 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 not think this is a grave or a sound objection
A much weightier consideration is that the plaintiff may be gravely prejudiced in a given case because as the PG NO 342 learned Rajasthan Judges point out and as O Sullivan J thought when a case proceeds ex parte the plaintiff does not adduce as much evidence as he would have if it had been contested
He contents himself with leading just enough to establish a prima facie case
Therefore if he is suddenly confronted with a contest after he has closed his case and the defendant then comes 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 Court
If it has reason to believe that the defendant has by his conduct 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 defendant s 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 not and ought not to be misled
If these considerations are to weigh then surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circumstances into consideration and do what seems best suited to meet the ends of justice in the case before it Ms Paradise Industrial Corpn
vs Ms Kiln Plastics Products  was a case which arose under the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The trial Judge passed an order directing the tenant to deposit certain amounts in court in default making the notice 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 Court set aside the ex parte decree on the ground that the above order was illegal and without jurisdiction as it did not conform to the provisions contained in section 114 of the Act in question which only provided that in case the directions of the court are not complied with the defendant shall not be entitled to appear in or defend the suit except with leave of the Court which leave may be granted subject to such terms and conditions as the Court may specify
It did not in the view of the learned Judges authorise the Court to strike off the defence straightaway
Reversing this order of the leared Judge this Court observed We are afraid the learned Judge of the High Court has missed the substance and chased the shadow
The words striking out the defence are very commonly used by PG NO 343 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 Court
The phrase defence struck off  or defence struck out is not unknown in the sphere of law
Indeed it finds a place in Order XI Rule 21 of the Code of Civil Procedure  
In effect both mean the same thing
Nobody could 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 plaintiff s witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him whereas if it is ordered in accordance with Section 114 that he shall not be entitled to appear in or defend the suit except with the leave of the court he is placed at a greater disadvantage
The use of the words defence struck off  does not in any way affect the substance of the order and the learned Judge of the High Court 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 114
What the law contemplates is not adoption or use of a formula it looks at the substance
The order is not therefore one without jurisdiction
It is one which the Judge was competent to make
Somewhat similar in nature are the observations made in Ms Babbar Sewing Machine Company vs Trilok Nath Mahajan  while dealing with the provisions of Order XI Rule 21 of the CPC
The court was of opinion that for the nature of the default in the said case it was a travesty of justice that the trial court should have passed an order striking out the defence of the defendant and the High Court should have declined to set it aside
In this context after discussing the scope of Order XI Rule 21 as to the manner in which the discretion of the court should he exercised the Court made certain general observations towards the end of the judgment of the following effect It was further contended that the High Court was in error in observing that in view of the clear language of PG NO 344 Order XI Rule 21  the defendant has no right to cross examine the plaintiff s 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 not defended
This indicates that once the defence is struck off under Order XI Rule 21 the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte
In Sangram Singh vs Election Tribunal   it was held that if the court proceeds ex parte against the defendant under Order IX Rule 6a the defendant is still entitled to cross examine the witnesses examined by the plaintiff
If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff
If the plaintiff fails to make out a prima facie case the court may dismiss the plaintiff s suit
Every Judge in dealing with an ex parte case has to take care that the plaintiff s case is at least prima facie proved
But as we set aside the order under Order XI Rule 21 this contention does not survive for our consideration
We therefore refrain from expressing any opinion on the question
 Our attention has also been invited to the incidental references by this Court to the aspect presently in issue before us while considering the questions in the context of analogous provisions of the rent statutes whether the Court has a discretion to extend the time for the deposits to be made by the tenant when there is no specific statutory provision to that effect and whether where the tenant fails to make the deposit as directed the Court is bound to strike out his defence or has a discretion to take or not to take this extreme step
In Ram Chand vs Delhi Cloth  General Mills Co Ltd   this Court on the language of the Delhi Rent Control Act agreeing with the High court ILR 1972 2 Delhi 503 on this point held that the Rent Controller has no power to condone the tenant s default by extending the time for payment
This Court however did not agree with the High Court s view that the default of the tenant vested an indefeasible right in the landlord and entitled him to an order of eviction straightaway
The Court observed While we agree with the view of the High Court that the controller has no power to condone the failure of the tenant to pay arrears of rent as required under section 151 we PG NO 345 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 comply with the order under section 151 the application will have to be heard giving an opportunity to the tenant if his defence is not struck out under section 157 and without hearing the tenant if his defence is struck out emphasis added Shyamcharan Sharma vs Dharamdass  was a case under the Madhya Pradesh Accommodation Control Act
The tenant had not been able to deposit the rents as per the directions of Court and sought an extension of time
The landlord opposed the application for condonation of delay on the ground that the Court had no power to grant it
This contention was rejected by the first court and first appellate court but the High Court accepted the plea and decreed the suit for eviction
The Supreme Court allowed the tenant s appeal
It observed It is true that in order to entitle a tenant to claim the protection of section 123 the tenant has to make a payment or deposit as required by section 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 court and should further deposit or pay every month by the 15th a sum equivalent to the rent
It does not however follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month subsequent to the filing of the suit for eviction will entitle the landlord straightaway to a decree for eviction
The consequences of the deposit or payment and non payment or non deposit are prescribed by subss
5 and 6 of section 13
Since there is a statutory provision expressly prescribing the consequence of non deposit or non payment of the rent we must look to and be guided by that provision only to determine what shall follow
section 136 does not clothe the landlord with an automatic right to a decree for eviction nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him
section 136 vests in the court the discretion to order the striking out of the defence against eviction
In other words the Court having regard to all the cir cumstances of the case may or may not PG NO 346 strike out the defence
If section 13 were to be construed as mandatory and not as vesting a discretion in the Court it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by section 131 but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction
We think that section 13 quite clearly confers a discretion on the court to strike out not to strike out the defence if default is made in deposit or payment of rent as required by section 131
If the Court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by section 131 the court 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 not to strike out the defence
 The apparent conflict between these cases camp up for consideration in Ram Murti vs Bhola Nath After considering the two earlier decisions the Court observed It would be incongruous to hold that even if the defence of the tenant is not to be struck out under Section 157 the tenant must still be visited with the punishment of being deprived of the protection under Section 142
In Hem Chand s case the Court went to the extent of laying down that even if the defence of the tenant is struck out under Section l57 the Rent Controller could not straightaway make an order for eviction in favour of the landlord under Section 141a
The Court held that the High Court was wrong in its assumption that failure to comply with the requirements of section 151 vests in the landlord an indefeasible right  to secure an order for the eviction of the tenant under Section 141a
The Court set aside the judgment of the High Court taking that view and remanded the matters to the Rent Controller 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 141a surely the tenant has the right to participate in the proceedings and cross examine the landlord
It must logically follow as a necessary PG NO 347 corollary that if the defence is not to be struck out under Section 157 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 142
What is of essence of Section 142 and of Section 156 is whether there has been a substantial compliance with the order passed under Section 151
The words as required by section 151 in these provisions must be construed in a reasonable manner
If the Rent Controller has the discretion under Section 157 not to strike out the defence of the tenant he necessarily has the power to extend the time for payment of future rent under Section 151 where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control
The previous decision in Hem Chand s case interpreting Section 157 and Section 142 in the context of Section 157 of the Delhi Rent Control Act 1958 although not expressly overruled cannot 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 Court to which counsel for the respondents referred may also be touched upon here viz Bela Das and others vs Samarendra Nath Bose 1975 2 SCR 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 court the arrears and future rent but he did not comply with the order and his defence was struck out
Thereafter an ex parte decree of eviction was passed and confirmed by the first appellate court
In second appeal the High Court remitted the case to the trial court on the ground that since the respondent had not admitted the appellants to be full owners of the premises but contended that other co sharers of the appellant s family had also shares therein there was a denial of the relationship of landlord and tenant and that the order striking out the respondent s defence qua tenant did not prevent him from contesting the suit on the question of title
The appeal against the High Court s order was allowed by this Court
The Court 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 NO 348 not 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 could not 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 not de hors it
The striking out of the defence on 871964 had the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being co sharer landlords were not entitled to maintain the suit for eviction
It may also be added that the learned Munsif in his order dated 871964 striking out the defence which order was confirmed by a Bench of the High Court in Civil Revision No 824 of 1964 decided on 2141964 had pointed out on the basis of the defendant s statements in his written statement as also in his rejoinder to the plaintiff s 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 no escape 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 contrary view taken by the High Court is erroneous in law
 A brief reference may now be made to the conflict of decisions in the Calcutta High Court which occasioned the reference to the Full Bench
The first two cases were under the original side rules and concerned the consequences of a defendant failing to enter appearance in a suit
In a very early decision in SN Banerjee vs HS Suhrawardy AIR 1928 Cal
772 Rankin CJ had observed of the rights of a defendant who had not entered appearance as follows If he does not 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 not possible for the defendant without obtaining leave to enter PG NO 349 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 not entering appearance in time is precluded from defending the suit whether he appears at the hearing or does not appear at the hearing
 Referring to these observations in Dabendra Nath Dutt vs Smt
Satyabala Dassi and others AIR 1950 Cal 217 PB Mukharji J said Thus then there are two consequences of not entering appearance under the Rules
One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed
In that context I am not 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 Code when the suit is called on for hearing from the undefended list not only to cross examine the witnesses of the plaintiff and demolish in such manner the plaintiffs case on evidence that the Court will not pass any decree in the plaintiff s 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 not 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 09 Rr 8 and 9 of the Code cannot be made applicable to the original side of this Court notwithstanding 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 not know or have notice 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 know 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 CJ in the Court of appeal sees the possibility of cross examination in such a case by the defendant of plaintiff s witnesses
PG NO 350 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
In my opinion filing of written statement is not 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 SB Trading Company Ltd vs Olympia Trading Corpn
Ltd AIR 1952 Calcutta 685 Sarkar J as His Lordship then was had to consider the effect of strike off of defence under section 144 of the 1950 Act
In that case which was a suit for ejectment the defence had been struck off as the defendants had not complied with an order made under section 144
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 plantiff s witnesses and to address the court not as counsel but as agents of their clients
The learned Judge declined the request
He referred to the observations of PB 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 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 144 says that this the defendants cannot do
 The next question that arose was whether it was open to the defendants to contest the plaintiff s claim that the defendant was not entitled to the benefit of the proviso to section 143
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 contest the applicability of the proviso
In my view this latter argument of learned counsel for the plaintiff is plainly sound
The proviso itself says that on certain things happening the tenant shall not be entitled to the benefit of protection against eviction under this section
So the proviso really contemplates a defence to the claim for ejectment and if that defence is struck out PG NO 351 it must necessarily mean that it is no longer open to the defendants to contest the existence of the facts giving rise to the applicability of the proviso
I therefore reach the conclusion that the defendants will not 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 CJ
In Gellatly vs Gannon AIR 1953 Cal 409
The learned Judge observed The language of section 144 is in no way qualified
The policy of the section or indeed the whole Act seems to be that the Legislature is not minded to protect a tenant who will not even pay the monthly rent regularly
If the tenant on being directed to pay the current rent month by month does not do so the Act quite clearly provides that he will such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position the general law
I do not find any justification in the language of section 144 to limit the defence against ejectment contemplated by it to defence against ejectment only on the ground mentioned in section 121i of the Act
 The question next arose before a Full Bench consisting of section P Mitra CJ MM Dutt J and AK De J in Gurudas Biswas vs Char Panna 
Seal AIR 1977 Cal 110 in the context 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 173 of the Act the defendant could take thedefence of the non existence or invalidity of a notice under section 136 in the court below and in the court of appeal
This question was answered in the affirmative endorsing the conclusion reached in an of earlier decisions of the Court
The reasoning was that the strike off only deprived the tenant of the special protection given to him under section 131 of the Act but did not preclude the necessity of the landlord having to prove the service of notice under section 136 of the Act which was a step to be taken before the filing of the suit
The Court however observed To pass an ex parte decree in a suit for ejectment on or of the grounds in Section 131 the Court is required to decide whether the suit is defended or not if the relation ship of landlord and tenant is not disputed as here PG NO 352 a whether the tenancy has been validly determined by a notice under Section 106 Transfer of Property Act b whether a valid notice of suit was given before filing the suit c whether the ground alleged in the plaint to take away the tenant s special protection conferred by Section 131 has been established on the evidence
This is the requirement of Order 20 Rule 4 Civil Procedure Code whether the suit is contested or not
The Court cannot relieve itself of the necessity of complying 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 not to permit the tenant to contend 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 not entitled to the decree prayed for though he would not 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 consideration in Daya Moyee Sadhukhan vs Dal Singer Singh AIR 1979 Cal 332
In this case on failure of the defendant to comply with the provisions of section l71 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 notice to quit i1ad been served properly in terms of section 106 of the Transfer of Property Act
The landlord appellant argued before the High Court that as the defence had been struck out the trial court was not justified in allowing the defendant to cross examine the plaintiff s witness and in support of this contention reliance was placed on the observations in Gurudas Biswas vs Charu Panna Seal AIR 1977 Cal 110
MM Dutt J delivering the judgment of the Bench observed that strictly speaking the observations relied upon did not relate to the points that had been posed before the Full Bench for consideration and hence had no binding force
He proceeded to consider the question on general principles
He referred to Order 9 Rr 6 and 7 of the CPC the decision in Sangram Singh vs Election Tribunal   Order I I Rule 21 of the CPC the decisions in Paradise Industrial Corpn
vs Ms Kiln plastics Products supra and the observations in Babbar Sewing Machine Company vs Trilok Nath Mahajan supra and concluded PG NO 353 It is true that the Supreme Court did not 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 Court do not 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 not be permitted to cross examine the plaintiff s 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 173 of the West Bengal Premises Tenancy Act 1956 the defendant will be entitled to cross examine the plaintiff s witnesses on all the points
There can be no doubt that his defence as to the service of the notice 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 plaintiff s case for delivery of possession
The learned Judge was therefore justified in allowing the defendant to cross examine the plaintiff s witness and to adduce evidence by examining himself on the point of notice
 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 cons of the situation
The points urged for the plaintiff are a 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 compelled 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
b Defence being struk off does not 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 plaintiff s witnesses and putting forth arguments demolishing the PG NO 354 plaintiff s case are as crucial and vital parts of the defence as the putting in of a written statement or examination of his own witnesses
c In like situations any similar default on the part of the plaintiff will spell the dismissal of his suit
Order 11 Rule 21 CPC 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 defendant s participation even to a limited extent
d The concession that the defendant can cross examine the plaintiff s witnesses or put forward arguments to demolish the plaintiff s case will lead to confusion and practical difficulties
The pleas sought to be taken by the defence in section B Trading Co vs Olympia Trading Coprn
Ltd AIR 1952 Cal
685 and in Bela Das vs Samarendra Nath Bose  e Apart from the view of Sarkar J and the decision of the Full Bench in Gurudas Biswas vs Charu Panna Seal AIR 1977 Cal 110 the Patna High Court in Ganesh Ram vs Smt
Ram Lakhan Devi also has taken to similar view and held that such a defendant cannot be allowed to lead evidence in support of his pleas in defence
f Under Order 8 Rule 5 of the CPC when there is no written statement the averments in the plaint are to be taken as correct 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 a The expression defence being struck out obviously relates to the consideration of a document being ruled out
PG NO 355 It suggests that the intention is only that the written statement should be excluded from consideration
Even treating the expression as equivalent to a direction that the court should proceed as if the defendant had not entered appearance at all the tenant s position cannot be worse than that of a similarly placed defendant under the Original Side Rules of the Calcutta High Court or under the CPC b It is well established that mere absence of defence cannot make the plaintiff entitled to a decree straightaway
Defence or no defence the plaintiff in a suit has to satisfy the court that he has a case which deserves to be decreed
In particular in an eviction suit under the rent laws the court 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 not be worth anything unless tested by cross examination
The cross examination of the plaintiff s witnesses is more an integral part of the plaintiff s case than an aspect of defence
c The Calcutta High Court has uniformly held that even in an undefended action a challenge on ground of non issue or invalidity of the notice under section 136 would be available to the defendant
Though the notice 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 non 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 no reason why he should not be allowed to do other things to show that the plaintiff is not entitled to a decree
d The observations of this Court in Sangram Singh Paradise Industrial Corpn
and Eabbar Sewing Machine Company supra are categorical and directly on this aspect of procedural law and deserve to be followed in the context of like provisions of tenancy legislations as well
We have considered the contentions urged on behalf of both the parties and the respective view points of the two lines of decisions of the High Court
We have also perused the decisions of this Court to which reference has been made
Though none 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 NO 356 giving careful thought to all the aspects we have come to the conclusion 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 now to set out the reasons for our conclusion
A provision like the one in section 174 is a provision in terrorem
It penalises the defendant for certain defaults of his
As pointed out by the decisions earlier referred to the court will act with great circumspection before striking out the defence of a tenant under this provision
This Court has interpreted provisions like this in rent acts to say that striking off of defence is not obligatory on the court merely because there is a default and that it is a matter for exercise of great judicial restraint
But it does not necessarily follow that once the defence is struck off the defendant is completely helpless and that his conduct 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 Court while discussing the provisions of the Code of Civil Procedure and the Original Side rules of the Calcutta High Court which deal with some what analogous situations cannot 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 construed 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 context of a tenancy legislation
the main object of which is to confer protection on tenants against eviction by the landlord
unless certain statutory conditions are fulfilled
I he provisions should not be given any wider operation than could have been strictly intended by the legislature
It has already been noticed that in the Calcutta High Court
there has been unanimity on the point that even where defence is struck out the validity of the notice under section 136 is challengeable
This has been the settled view of that court for several years now 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 notice is a condition precedent to the institution of the suit and cannot 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 notice has invariably to be taken as a plea in defence in such suits
The rule therefore is PG NO 357 really an exception to the strict application of a rule that a tenant whose defence is struck off cannot 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 plaintiff s case by the cross examination of his witnesses it would be equally correct to say that the cross examination of the plaintiff s witnesses really constitutes a finishing touch which completes the plaintiff s case
It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination
The mere statement of the plaintiff s witnesses cannot constitute the plaintiff s evidence in the case unless and until it is tested by cross examination
The right of the defence to cross examine the plaintiff s witnesses can therefore be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff s evidence cannot 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 nothing in law to preclude him from demonstrating to the court that the plaintiff s witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute
To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears
It will at once be clear that to say that the Court can only do this by looking the plaintiff s evidence and pleadings supplemented by such questions as the court may consider necessary and to completely 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 plaintiff s statements
For after all the court on its own motion can do very little to ascertain the truth or otherwise of the plaintiff s 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 plaintiff s 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 NO 358 certain important safeguards
The first of these is that the defendant cannot be allowed to lead his own evidence
None 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 plaintiff s 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 plaintiff s 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 not 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 court in Sangram Singh s 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 not having filed a written statement should not cause prejudice to the plaintiff
Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough 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 not taken by surprise or gravely prejudiced
This difficulty however can be easily overcome in practice because there is a wide discretion with the court 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 conclusion has been raised on the basis of the provisions of Order VIII of the Code of Civil Procedure
Rules 1 5 and 10 of this Order have been PG NO 359 recently amended by the Amendment Act of 1976
We find nothing in these rules which will support the contention 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 court
Under rule 52 where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court 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 court shall pronounce 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 court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein
Though the present language of rule 10 says that the court shall pronounce judgment against him it is obvious from the language of the rule that there is still an option with the court either to pronounce 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 nothing in these rules which makes it mandatory for the court to pass a decree in favour of the plaintiff straightaway because a written statement has not 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 not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply
Rule 51 cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway
These provisions of the Code 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 contrary position namely that even in such cases it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place
We therefore do not think that the terms of Order VIII in any way conflict 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 174 of the Act the defendant subject to the exercise of an appropriate discretion by the court on the facts of a particular case would generally be entitled PG NO 360 A to cross examine the plaintiff s witnesses and b to address argument on the basis of the plaintiff s case
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff s case
In no circumstances should the cross examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant s case either directly or in the form of suggestions put to the plaintiff s witnesses
For reasons mentioned above we allow the appeal and restore the suit before the trial Judge for being proceeded with in the light of the above conclusions
We direct that the costs of this appeal will form part of the costs in the suit and will abide by the result thereof
SL Appeal allowed


Summary:
The Rules of the Central Public Works Department CPWD adopted by the Delhi Development Authority DDA stipulate and provide that 50 of the posts of Assistant Engineers in DDA be filed up by promotion from the cadre of Junior Engineers comprising of both Graduates in Engineering and Diploma Holders in Engineering in the equal ratio 5050 of the promotional posts
Half of it ie 25 were to be filled up by promotion of Graduate Junior Engineers with three years  service experience as Junior Engineers the other 25 to be filled up from Diploma Holder
Junior Engineers
who had X years service experience as Junior Engineers
The Rules further provide that the Executive Engineers  post in DDA were purely promotional and Graduate Assistant Engineers with 8 years  service experience and Diploma Holder Assistant Engineers with 10 years  service experience were eligible for promotion
No inter se quota between the two class of officers was prescribed
The Diploma Holders in the Cadres of junior Engineers and Assistant Engineers filed separate writ petitions in the High Court assailing the constitutional validity of the prescriptions made by the rules in the matter of requirement of differential service experiences between the Graduates and the Diploma Holders for promotion to the higher caders of Assistant Engineers and Executive Engineers respectively
They also assailed the promotion of Graduate Engineers to the higher cadres made on the strength of the Rules
PG NO 253 PG NO 254 The High Court allowed the writ petitions and declared the different standards of service experience prescribed for Degree Holders and Diploma Holders in respect of both the cadres as violative of Articles 1 1 and 16 of the Constitution
In the appeal to this Court on behalf of appellants it was contended l that the view taken by the High Court is demonstrably erroneous and opposed to well settled principles 2 that the High Court took an erroneous view that in Shujat Ali s case  this Court struck down the service rule impugned in that case 3 that the fundamental distinction between Triloki Nath Khosa s case  and Shujat Ali s case was lost sight of by the High Court4 that the present case was not one in which the Diploma Holders proprio vigore and without more were held eligible for promotion
The educational qualification of a Diploma in engineering was not treated as equivalent to a Degree for purposes of determining eligibility
Nor the Degree itself was determinative of eligibility for promotion
The eligibility of promotion is based on a combination of factors which vary according to the basic educational qualification of the two classes of engineers 5 that this distinction was germane to the requirements of higher technical and academic quality for the higher posts which involved expertise in structural design
and 6 that even where recruitment to a particular cadre was made from different sourcesresulting in the formation of a single homogeneous cadre it was not impermissible to make a further classification amongst the members of such a cadre for purposes of further promotion based on the higher educational qualification of the candidates
On behalf of the respondent Diploma Holders it was contended1 that this Court had more than once
cautioned against undue accent in the matter of promotional opportunities on academic qualification alone which might lead to elitist perferences and tend to obscure the egalitarian principle and social justice 2 that the effect of the distinction is really an imperceptible extension or magnification of insubstantial factors subverting the precious guarantee of equality and3 that to discriminate between Diploma Holders and Graduates who belong to the same cadre and hold inter changeable posts both in the present cadre and in the prospective promotional posts on the mere lack of some higher academic attainment is to place a high premium on these social and economic pursuits for the economically disadvantaged difficult
Allowing the Appeals PG NO 255 HELD l
The inherent distinction between a person with a Degree and one who is merely a Diploma Holder is much too obvious
But the question for consideration in the present context is whether the differences have a reasonable relation to the nature of the office to which the promotion is contemplated
The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn from the same source
If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities
that go with and are attendant upon the promotional post the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification
There mayconceivably be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another
Whether the classification is reasonable or not must therefore necessarily depend upon facts of each case and the circumstances obtaining at the relevant time
When the State makes a classification between two sources unless the vice of the classification is writ large on the face of it the person assailing the classification must show that it is unreasonable and violative of Article 14
263A C  2
A wooden equality as between all classes of employees irrespective of all distinction or qualifications or job requirements is neither constitutionally compelled nor practically meaningful
263D The process of classification is in itself productive of inequality and in that sense antithetical of equality
The process would be constitutionally valid if it recognises a pre existing inequality and acts in aid of amelioration of the effects of such pre existent inequality
The the process cannot merely blow up or magnify in substantial or microscopic differences on merely meretricious or plausible
The over emphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in re placing doctrine of equality by the doctrine of the classification264C D 4
The presumption of good faith in and of constitutionality of a classification cannot be pushed to the point of predicating some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality a mere rope of sand
264E PG NO 256 Central Railway vs AVR sidhanti  at 214 and TDevadasan V The Union of India 1964 4 SCR at 689  690 followed
5To overdo classification is to undo equality
The idea of similarity or dissimilarity of situations of persons to justify classification cannot rest on merely differentia which may by themselves rational or logical but depends on whether the differences are relevant to the goals sought to be reached by the law which seeks to classify
The justification of the classification must therefore be sought beyond the classification
All marks of distinction do not necessarily justify classification irrespective of the relevance or nexus to objects sought to be achieved by the law imposing the classification
264F G State of Jammu  Kashmir vs Triloki Nath Khosa  Ors1974 I SCR 771 Bidi Suppy Cov
Union of India   relied no Mohammad shujat Ali vs UOI and others 19751 SCR 449 HC Sharma and Ors
vs Municipal Corporation of Delhi and Ors 19833 SCR 372 and Punjab State Electricity Board Patiala and Anrv
Ravinder Kumar Sharma  Ors
1986 4 SCC 617 distinguished State of Mysore vs Narasinga Rao  and Union of India vs Mrs SB Kohli 19733 SCR 117 referred to
In the present case the possession of a diploma
by itself and without more does not confer eligibility
Diploma for purposes of promotion is not considered equivalent to the degree
268d 7If the educational qualification by itself was recognised as confering eligibility for promotion then the super imposition of further conditions such as a particular period of service selectively on the Diploma Holders alone to their disadvantage might become discriminatory
This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience268G H269A