(August 10, 2001) 2001 (TLS)125563

2001-DLT-94-724 :: 2001-AD (Del)-6-797

SHUKLA MALHOTRA Vs. Dee Pee Kagajudyog Privatelimited

( 1 ) THIS is an application on behalf of the defendants, whose defence has already been struck off, for cross-examination of witnesses whose affidavits have been filed by the plaintiff by way of evidence.

( 2 ) IT is contended by learned counsel for the defendant that in spite of striking off defence, the defendant is still entitled to represent its case and cross-examine the witnesses. no doubt such a right still survives but to the limited extent involving legal objections for instance, whether the suit is barred by limitation or court has no territorial jurisdiction to entertain the suit and likewise as defence when struck off wipes off every defence against decree except legal defences and patent falsehood of the case of the plaintiffs.

( 3 ) HOWEVER, legal position in respect of aforesaid proposition of law has been enunciated by the Supreme court in Modula India Vs. Kamakshya Sinflh Deo (1988) 4 supreme Court- Cases 619. It was held that where defence is struck off, the defendant would not be entitled to lead any evidence of his own nor his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff s case. In no circumstances should the cross-examination be permitted to travel beyond the 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.

( 4 ) AS it is the basic principle of law that the plaintiff has to prove its case independently in spite of defence having been struck off, the court has to only look at the plaintiff s evidence and pleadings and allow defendant to cross-examine the witnesses of the plaintiff to the aforesaid limited extent and not by way of allowing the defendant to put up its case either directly or indirectly. Other relevant observation is as under:-

"18. 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 fulfil the terms of the statute. "

( 5 ) IDENTICAL provision of striking off defence of a tenant appears in Section 15 (7) of Delhi Rent Control act. Though there is unvarying current of opinion with regard to aforesaid provision that where the defence of the tenant is struck out, all kinds of defences which are open to the tenant stand struck out- The object is to penalise the tenant for non-compliance of the order under section 15 (1) of the Act directing him to deposit the rent.

( 6 ) HOWEVER this court in United Auto Tractors (P) ltd. Vs. Urvashi Rohtagi 1974 RCR page 167, took the view that in spite of defence of tenant having been struck off, he cannot be absolutely expunged from the proceedings. He can still address the Controller in order to convince him that leaving aside the defence raised against the eviction petition, the eviction petition by itself is liable to fail because of patent illegality.

( 7 ) SIMILAR view was taken in N,c. Moitra vs. Bhupendra Kumar Chatterji 1978 (1) RCJ page 373 that a tenant whose defence against delivering of possession has been struck out, is still permitted to contend before the court and take the defence on the point of non-service or invalidity of the notice and in doing so the tenant is also permitted to cross-examine plaintiff s witnesses and challenge other evidence adduced from the aforesaid point. It was further