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SUPREME COURT OF INDIA
SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.
Modula India, Appellant
Versus
Kamakshya Singh Deo, Respondent.
Civil Appeal No. 173 of 1983
Decided on 27-9-1988.
Advocates appeared
Mr. Ajay Nath Ray, Mr. Surendra Dube and Mrs. Indira Sawhney Advocates, for Appellant; Mr. S. K. Kapur, Sr. Advocate, Mr. Ranjan Deb, Mr. Gangadeb and Mr. B. P. Singh, Advocates with him, for Respondent.
- filing of written statement is not the only way of defending a suit. A defendant may ably and successfully defend a suit against him by cross examination and arguments. In the case of Modulo India v. Kamakhya Singh Deo, AIR 1989 SC 162 = (1989) 4 JT 214 = (1988) 4 SCC 619, it was agreed 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 board 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 witness, it would be equally correct to say that 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 witness 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 as a part of its own strategy 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 demonstrating to Court that the plaintiff’s witnesses are-not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute.
Key Points: - The judgment discusses that defence being struck out does not automatically deprive the tenant of all participation; cross-examination of plaintiff’s witnesses may still be permissible under certain conditions (!) (!) (!) (!) . - It affirms that the defendant whose defence is struck out can be allowed to cross-examine plaintiff witnesses and address arguments on the plaintiff’s case, but cannot lead any of his own evidence or present his own case beyond testing the plaintiff’s evidence (!) (!) (!) . - The court emphasizes that striking out of defence is a measure of restraint and should be exercised with great caution, ensuring it does not prejudice the plaintiff and that the defendant’s limited participation is suitably regulated to avoid turning cross-examination into presenting a defence (!) (!) (!) . - It acknowledges that the issue involves a conflict of historical precedents from Calcutta High Court and looks to Sangram Singh, Paradise Industrial, and Babbar Sewing Machine decisions for guiding principles on ex parte/defence participation and cross-examination rights (!) (!) (!) . - The decision ultimately restores the suit for trial with the clarified position that the defendant may cross-examine and argue, but not lead evidence; the appeal is allowed and the case is remanded for proceedings consistent with these principles (!) (!) . - The judgment discusses the procedural framework and references to Rule 21 of Order XI CPC and related statutory provisions clarifying cross-examination rights even when the defence is struck out (!) (!) (!) .
JUDGMENT
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 CA) decided that in a matter where the defence against delivery of possession has been struck out under subsection (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 13(6) of the said Act. The correctness of the view taken by the majority is contested in this appeal.
2. 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.
3. 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 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 plaintiffs witnesses;
(b) of pointing out to the Court the factual and legal infirmities in the plaintiffs 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 general question regarding the consequences of a strike off, we should consider the question in all its aspects and
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