1997 Supreme(MP) 979

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Dubey, J.
Pragji Bhai – Appellant
Versus
R.L. Mehta – Respondent
Misc. Appeal No. 136 of 1995 (J)
Decided On : 09-07-1997

Headnote:(1)Civil Procedure Code, 1908 – O.8 R.1 – so many opportunities provided to file written statement but not filed – no grievance can be made in appeal.

       (2) Accommodation Control Act, 1961 (M.P.) – S.13 (6) – defence struck off – tenant is not entitled to cross – examine plaintiff's witnesses and address arguments.

       (3)Civil Procedure Code, 1908 – O.8 R.10 – written statement not filed – Court may fix the case for plaintiff's evidence.

        Short Note

       1. The legal representatives of the plaintiff/landlord have filed this appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure against order dated 4.1.1995, passed in Civil Appeal No. 15 – A/93, by IInd Additional Judge to the Court of District Judge Hoshangabad.

       2. Facts giving rise to this appeal are thus:

       "The respondent is the tenant in residential accommodation owned by the deceased plaintiff who served quit – cum – demand notice Ex.P.3 dated 2.2.1988 for the arrears of rent from August, 1987, which was served on 5.3.1988. The respondent failed to pay the arrears of rent within the two months from the date of service of notice of demand. Hence, the landlord instituted the suit on 24.6.1988 seeking eviction under section 12(1)(a), (d) and (g) of the M.P. Accommodation Control Act, 1961 (for short the Act). After service of writ of summons of the defendant/respondent did not appear hence the trial Court ordered on 28.10.1988 to proceed ex – parte against the defendant and fixed the case for recording ex – parte evidence on 4.11.1988. On 24.11.1988 the defendant filed an application under Order 9 Rule 7 of the Code of Civil Procedure (for short the Code). The ex – parte order was set aside on 9.1.1989 and the defendant was granted time to file written statement. Next date was fixed as 9.2.1989. In between on 30.1.1989 the defendant filed an application under section 13 (2) of the Act and raised the dispute about rate of rent and rent payable to the plaintiff/landlord. That dispute was decided vide order dated 18.12.1989 against which the defendant preferred Civil Revision No. 4/90. The revisional Court after hearing the parties remitted the case for deciding the application under section 13 (2) of the Act afresh vide order dated 13.7.1990. The trial Court thereafter re – determined provisional rent at Rs. 150/ – per month vide order dated 21.11.1990 and directed the defendant to deposit the rent within 30 days from the date of order and also fixed the case for filing written statement on 24.12.1990. On this date again the defendant prayed for time to file the written statement. The case was adjourned to 6.2.1991. On this date the plaintiff made application under section 13 (2) for striking out the defence. Meanwhile Civil Revision No. 5/91 against the order of fixation of provisional rent was dismissed on 6.12.1991. Hence, the trial Court vide order dated 1.2.1992 allowed the application under section 13 (6) of the Act and struck off the defence against eviction and fixed the case for plaintiff s evidence on 12.2.1992."

       3. On 12.2.1992 the plaintiff examined himself but on the objection of the defendant about admissibility of Mukhtyarnama Ex. P.1 the case was adjourned to 2.3.1993. The plaintiff examined his witnesses who were cross – examined by the defendant. The case was adjourned for further evidence of plaintiff on 3.5.1993. The plaintiff after examination and cross – examination of witnesses closed the evidence. The trial Court fixed the case for final arguments on 22nd June 1993. The arguments could not be heard and the case was adjourned to 12.7.1993 when the plaintiff sought time to produce certain documents which was granted. In between on 8.7.1993 Civil Revision No. 10/92 filed by the defendant against the admissibility of Mukhtyarnama was also dismissed. On 28.7.1993 the plaintiff filed the documents with an application under Order 13 Rule 2 of the Code which was allowed. This was also challenged in Civil Revision No. 4/93 which was dismissed vide order dated 16.9.1993. Thereafter the trial Court heard arguments on 6.10.1993. The judgment was pronounced on 18.10.93 whereby the decree for eviction under section 12(1) (a), (d) and (g) of the Act was passed.

       4. Aggrieved of the judgment and decree the defendant filed an appeal. The lower appellate Court set aside the decree and remitted the case to the trial Court for permitting the defendant to file written statement and to decide the case afresh in accordance with law holding that the trial Court under Order 8 Rule 10 of the Code did not pronounce the judgment in failure of filing of the written statement on the date fixed or within the time permitted, hence the trial Court ought to have permitted the defendant to file the written statement on the grounds other than under section 12 of the Act.

       5. Having heard Shri Ravish Agarwal for the appellant and Shri Abhay Sapre for the respondent and going through the decisions cited at Bar Modula India vs. Ramakshya Singh Deo, AIR 1989 SC 162, a Division Bench decision of this Court in Krishnabai vs. Laxmibai, 1970 JLJ 707, this Court is of the opinion that the remand of the case for deciding the case afresh after giving opportunity to file written statement in the circumstances is illegal.

       6. It is not disputed that the defendant was afforded opportunity to file written statement. When the written statement was not filed and the defence was struck off the trial Court directed the plaintiff to produce evidence on 12.2.1992. Therefore, in the circumstances, it cannot be said that when the trial Court did not exercise its stringent power to pronounce the judgment under Order 8 Rule 10, the trial Court ought to have passed such order in relation to the suit as it thought fit. The trial Court apparently has passed the order fixing the case for recording of plaintiff's evidence. Besides, in the facts as appearing, if the defendant had any grievance of not giving opportunity to file written statement on the grounds which were available to him to contest the suit after his defence was struck off in that case the defendant ought to have made an appropriate prayer for filing the written statement. But instead of making prayer for filing the written statement he proceeded with the case and cross – examined the plaintiff's witnesses then having lost in the trial Court, filed the appeal and raised the grievance for the first time before the lower appellate Court. Looking to the circumstances and protraction of the trial by the defendant as is evident from the proceedings of the case, it cannot be said that the defendant was not afforded opportunity to file written statement.

       7. In the result the appeal is allowed, the order impugned is set aside. The lower appellate Court is directed to decide the appeal on merits afresh in accordance with law expeditiously as far as possible within an outer limit of four months from the date of appearance of parties. The parties shall appear before the lower appellate Court on 19th August 1997 as they have been noticed here. Appellant/plaintiff shall file certified copy of this order before the lower appellate Court. No costs.