rights of the defendant when his defence is struck off Supreme Court

PETITIONER:
MODULA INDIA
Vs.
RESPONDENT:
KAMAKSHYA SINGH DEO
DATE OF JUDGMENT27/09/1988
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
MUKHARJI, SABYASACHI (J)
CITATION:
1989 AIR 162 1988 SCR Supl. (3) 333
1988 SCC (4) 619 JT 1988 (4) 214
1988 SCALE (2)1163
ACT:
West Bengal Premises Tenancy Act, 1956-Section 17(3)
of–Nature and scope of rights of defendant whose defence is
struck out in a suit for possession.
HEADNOTE:
The respondent flied a suit in the High Court for a
decree directing the defendant (appellant) to deliver
possession of certain premises. The appellant-tenant filed
its written statement. During the pendency of the suit,
orders were passed directing the appellant tenant to deposit
certain sums in Court. The tenant made an application for
permission to deposit the arrears of rent in monthly
instalments alongwith the current rents. No orders were
passed on this application on the ground of its being out of
time. Subsequent to the disposal of this application, the
defence of the tenant was struck out under section 17 of the
Act. The tenant/appellant moved this Court.
Allowing the appeal, the Court,
HELD: A provision as in s. 17(4) is a provision in
terrorem, The Court will act with 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 out defence is not obligatory on the
Court merely because there is a default and that it is a
matter for exercise of great restraint. But it does not
necessarily follow that once the defence is struck off, the
defendant is completely helpless and 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. [356B-D]
Provisions of this type should be construed strictly
and the disabilities of a person in default should be
limited to the minimum extent consistent with the
requirements of justice. This should be all the more so in
the context of tenancy legislation, the main purpose of
which is to confer protection on the tenants against
eviction by the landlord, unless certain statutory
conditions are fulfilled. The provisions should not be given
any wider wider operation than could have been strictly
intended by the legislature. [356E-F]
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PG NO 333
PG NO 334
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 is really an exception to
the strict application of a rule that a tenant whose defence
is struck out cannot be heard at-all against the plea of
ejectment. [356H; 357A]
Full effect should be given to the words that defence
against ejectment is struck off. But while it is true that,
in a broad sense, the right of defence takes in all aspects
including the demolition of the plaintiff’s case by
cross-examination of his witnesses, it is equally correct
that the cross-examination of the plaintiff’s witnesses
really constitutes a finishing touch which completes the
plaintiff’s case. No oral testimony can be considered
satisfactory or valid unless it is tested by crossexamination.
Mere statement of plaintiff’s witnesses cannot
constitute plaintiff’s evidence unless it is tested by cross
examination. The right of defence to cross-examine
plaintiff’s witnesses can 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.
Thus 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 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. [357B-D]
The basic principle that where a plaintiff comes to
court he must prove his case should not be whittled down
even in a case where no defendant appears. [357E]
The defendant should be allowed his right of crossexamination
and arguments. This right should be subject to
certain important safeguards. [357H; 358A]
First. the defendant cannot be allowed to lead his own
evidence. [358A]
Secondly, if cross-examination is permitted of the
plaintiff’s witnesses by the defendant whose defence is
struck off, procedural chaos may result unless great care is
exercised and it may be very diffcult to keep the crossexamination
within limits. But this is a difficulty of
procedure rather than substance. It is a matter to be sorted
out in practical application rather than by laying down a
hard and fast rule of exclusion. [358B-D]
Thirdly, 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. The
PG NO 335
Court should ensure that by permitting the defendant at a
later stage either to cross-examine the witnesses or
participate in the proceeding, the plaintiff is not taken by
surprise or gravely prejudiced; there is a wide discretion
with the court and it is open to the court where it believes
that the plaintiff has been misled, to exercise its
discretion to shut out cross-examination or regulate it in
such manner as to avoid any real prejudice to the interests
of plaintiff. [358E; F-G]
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 court on the facts of a
particular case, would generally be entitled to (a) crossexamine
the plaintiff’s witnesses, and (b) address argument
on the basis of the plaintiff’s case. The defendant would
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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 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. [359G-H; 360B-C]
K.K. Chari v. R.H. Seshadri, AIR 1973 3 SCR 691; Inder
Mohan Lal v. Ramesh Khanna, AIR 1987 SC 1986; Sangram Singh
v. Election Tribunal, Kotah, Bhuray Lal Bava, [1955] 2 SCR
1; M/s. Paradise Industrial Corpn. v. M/s. Kiln Plastics
Products, [1976] 1 SCC 91; M/s. Babbar Sewing Machine
Company v. Trilok Nath Mahajan, [1978] 4 SCC. 198; Ram Chand
v. Delhi Cloth & General Mills Co. Ltd., [1978] 1 SCR 241;
Shyamcharan Sharma v. Dharamdass, [1980] 2 SCR 334; Ram
Murti v. Bhola Nath, [1984] 3 SCC 111; Bela Das & Ors. v.
Samarendra Nath Bose, [1975] 2 SCR 1004; S.N. Banerjee v.
H.S. Suhrawardy, AIR 1928 Cal. 772; Dabendra Nath Dutt v.
Smt. Satyabala Dassi & Ors., AIR 1950 Cal. 217; S.B. Trading
Company Ltd. v. Olympic Trading Corpn. Ltd., AIR 1952
Calcutta 685; Gellatty v. Cannon, AIR 1953 Cal. 409; Gurudas
Biswas v. Charu Panna Seal, AIR 1977 Cal. 110; Daya Moyee
Sadhukhan v. Dal Singer Singh, AIR 1979 Cal. 332; Sangram
Singh v. Election Tribunal, AIR 1955 SC 425 and Ganesh Ram
v. Smt. Ram Lakhan Devi, [1981] 1 All India Rent Control
Journal 681, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 173 of
1983.
PG NO 336
From the Judgment and Order dated 30.9.1982 of the
Calcutta High Court in Suit No. 568 of 1979.
Ajay Nath Ray, Surendra Dube and Mrs. Indira Sawhney
for the Appellant.
S.K. Kapur, Ranjan Deb, Gangadeb and B.P. 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 (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 cannot crossexamine
the witnesses called by the plaintiff, excepting on
the point of notice under section 13(6) 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,
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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 17(3) 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 17(3) 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 17(1) 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.
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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 subsection
(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. S. 14(1) 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 subsection
(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
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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
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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 (C.P.C.) This rule reads thus:
21(1) 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
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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 Court can and should take the help and
assistance of the defendant and counsel. It should be open
to the defendant/tenant, 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 v. Election Tribunal, Kotah, Bhurey Lal Baya, [1955] 2
S.C.R. 1, 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 v. Sri Krishna, AIR 1949
Oudh 50) 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 crossexamination
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.”
M/s. Paradise Industrial Corpn. 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 (Control)
Act, 1947. The trial Judge passed an order directing the
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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 11(4)
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
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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, crossexamine
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 11(4) 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 11(4). 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
M/s. Babbar Sewing Machine Company 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 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
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Order XI, Rule 21’ the defendant has no right to crossexamine
the plaintiff’s witnesses. A perusal of Order XI,
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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 v. Election
Tribunal, [1955] 2 SCR 1, it was held that if the court
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 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 v. Delhi Cloth &
General Mills Co. Ltd., [1978] 1 SCR 241, 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 s. 15(1), 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 s. 15(1), the application will have to be
heard giving an opportunity to the tenant if his defence is
not 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 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 s. 12(3), the tenant has to make a payment
or deposit as required by s. 13, that is to say, the arrears
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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 s. 13. Since there is a statutory
provision expressly prescribing the consequence of nondeposit
or non-payment of the rent, we must look to and be
guided by that provision only to determine what shall
follow. S. 13(6) 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. S. 13(6) 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 s. 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
s. 13(1) 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 s. 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 s. 13(1). If the Court has the
discretion not to strike out the defence of a tenant
committing default in payment or deposit as required by s.
13(1), 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 v. Bhola Nath, [1984] 3 SCC 111.
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
15(7), the tenant must still be visited with the punishment
of being deprived of the protection under Section 14(2). 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 l5(7), the Rent Controller could not straightaway
make an order for eviction in favour of the landlord under
Section 14(1)(a). The Court held that the High Court was
wrong in its assumption that failure to comply 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 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 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
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PG NO 347
corollary that if the defence is not 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 compliance with the order passed under Section
15(1). The words “as required by section 15(1)” in these
provisions must be construed in a reasonable manner. If the
Rent Controller has the discretion under Section 15(7) 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 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 Chand’s case
interpreting Section 15(7) and Section 14(2) in the context
of Section 15(7) 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 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 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 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 cosharer-
landlords were not 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 confirmed by a Bench of the High Court in Civil
Revision No. 824 of 1964 decided on 21.4.1964, had pointed
out on the basis of the defendant’s statements in his
written statement as also in his rejoinder to the
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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 S.N. Banerjee v. H.S. Suhrawardy, AIR 1928
Cal. 772 Rankin, C.J. 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
v. Smt. Satyabala Dassi and others, AIR 1950 Cal. 217, P.B.
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 0.9 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 C.J. in the Court of appeal sees the
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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 S.B. Trading Company Ltd. v. 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 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 not complied 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 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
P.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 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.”
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 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 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 C.J. In Gellatly
v. Gannon, AIR 1953 Cal 409. The learned Judge observed:
“The language of s. 14(4) 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
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general law. I do not 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, consisting
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 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 17(3) of the Act, the defendant could take
thedefence of the non-existence or invalidity of a notice
under section 13(6) 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 13(1) of the Act but did not preclude the
necessity of the landlord having to prove the service of
notice under section 13(6) 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 13(1), 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
13(1), 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 v. Dal Singer Singh, AIR 1979 Cal 332. In
this case, on failure of the defendant to comply 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 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 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
not relate to the points that had been posed before the Full
Bench for consideration and hence had no binding force. He
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proceeded to consider 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 Corpn. v. M/s. Kiln plastics Products, (supra)
and the observations in Babbar Sewing Machine Company v.
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
17(3) 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 crossexamine
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 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
defendant’s participation, even to a limited extent.
(d) The concession that the defendant can cross-examine the
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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
S. B. Trading Co. v. Olympia Trading Coprn. Ltd., 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
v. 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.
(e) 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 Court in Ganesh Ram v. Smt.
Ram Lakhan Devi, [1981] 1 All India Rent Control Journal 681
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 C.P.C., 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 C.P.C.
(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 crossexamination.
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 s. 13(6) 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 precondition
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.
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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 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 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 s. 13(6) 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
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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
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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
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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
5(2), 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 5(1) 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
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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 17(4) 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:
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(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.
S.L. Appeal allowed.