The main legal point established is that even when the defense has been struck off, the defendant has the right to cross-examine the plaintiff's witness and confront them with documents, subject to certain safeguards.

SANJAY KISHAN KAUL, J.

( 1 ) ADMIT.

( 2 ) AT request of learned counsel for the parties, the matter is taken up for final disposal.

( 3 ) THE petitioner has approached this court in the present proceedings under article 227 of the Constitution of India on account of the manner in which the trial court was permitting or refusing the cross examination by the petitioner of a witness of the respondent.

( 4 ) THE respondent has filed a suit for possession, recovery of arrears of rent and mesne profits in which the defence of the petitioner has been struck off. At the stage when the cross examination of the witnesses of the petitioner was in progress, the counsel for the petitioner sought to confront the witness with certain documents. This was objected to by the learned counsel for the respondent and the trial court held that in view of the fact that the defence of the petitioner has been struck of, the witness cannot be confronted with those documents. These documents are 14 alleged rent receipts.

( 5 ) AT the inception itself, it must be noticed that this Court does not sit as a court of appeal in proceedings under Article 227 of the Constitution of India and the object is only to ensure that a Court or a Tribunal confines itself to its own jurisdiction. It is also trite to say that the trial court is the master of how the evidence must be recorded and it is not the function of this court to interfere in the progress of the evidence.

( 6 ) IT is keeping the aforesaid conspectus in mind that the real grievance of the petitioner is being analyzed which arises from a legal plea raised that in cross examination the counsel for the petitioner must have full play within the ambit of law and even if the defence of the petitioner has been struck off, the petitioner cannot be precluded from confronting the witness with documents.

( 7 ) THERE is no dispute about the proposition of law that if the witness denies those documents, then those documents certainly cannot be exhibited and the occasion to exhibit those documents would only arise if the witness admits those documents. This is so since in cross examination, opposite party has a right to practically pull out a document out of its pocket and confront the witness with that document, which relates to that witness.

( 8 ) LEARNED counsel for the respondent has drawn the attention of this court to the judgment of the Apex Court in Modula India v. Kamakshya Singh Deo; (1988) 4 scc 619 which has discussed the scope of the right of cross examination especially in a case where the defence has been struck off. The Apex Court has observed that even if the defence of the tenant has been struck off, 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 forth by the plaintiff is not sufficient to fulfil the terms of the statute. The court can look into the plaintiff's evidence and pleadings and may consider such questions as are necessary and it has been held that in case any type of assistance from the defendant is completely eliminated, the same would put the court in a great handicap in discovering the truth or otherwise of the plaintiff's statement. The right of cross examination in such a case has been upheld subject to certain safeguards which include the aspect that the defendant cannot be allowed to lead his own evidence. The discussion in this behalf is contained thereafter in para 21 and 22 of the said judgment and the conclusions are set out in para 24 of the said judgment. The said paragraphs read as under:"21. 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 care 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 an