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2013 Supreme(MP) 208
HIGH COURT OF MADHYA PRADESH
Sujoy Paul, J.
Ramesh Kumar v. Smt. Sudha Gupta and others
Writ Petition No.1722 of 2013 (Gwalior); Decided on 9.4.2013.
P.C. Chandil for petitioner;
Anand V. Bhardwaj for respondents.
Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- Ss.13(6) and 12(1) -- Civil P.C., 1908 -- O.7 R.14(3) and O.8 R.1(3) r/w section 151 -- defence struck off by the Court -- defendant cannot examine the witnesses on the pleadings struck off.
Held : The petitioner while filing an application under Order 8 rule 1(3) CPC, made effort to put forth his defence in indirect manner. This is settled in law that a thing which cannot be permitted to be done directly, cannot also be permitted to be done indirectly. If the defence is struck off and written statement cannot be considered, the defence cannot also be permitted to put forth by way of other methods, including by filing an application under Order 8 rule 1(3) CPC. AIR 1989 SC 162 followed. 1964 JLJ 87, 1997(II) MPJR 145 and 1999(I) MPJR 287 relied on. 1993 JLJ 117 distinguished.
(2) Constitution of India -- Art.227 -- High Court can interfere only if the order of Court below suffers from jurisdictional error, procedural irregularity, impropriety or perversity -- another possible view cannot be a ground of such interference. [Para 11
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1. The order dated 15.2.2013 (Annexure P-1) and the order dated 22.12.2012 (Annexure P-2) passed by Second Additional District Judge, Gwalior (M.P.) in Civil Suit No.11-A/2010, are called in question in this petition filed under Article 227 of the Constitution.
2. The plaintiffs-respondents filed a suit for eviction and recovery of rent. The Court below by order dated 18.8.2011 struck off the defence of the petitioner under section 13(6) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as “the Act”). Thereafter, the respondents-plaintiffs filed an application under Order 7 rule 14(3) CPC to take certain documents on record. The application of the plaintiffs-respondents was allowed by the trial Court on 14.8.2012 (Annexure P-7). Thereafter, the petitioner-defendant preferred an application under Order 8 rule 1(3) read with section 151 CPC along with list of documents before the Court below. The Court below dismissed the said application (Annexure P-7) by order dated 22.2.2012 (Annexure P-3). It was held by the Court below that once the defence of the petitioner was struck off by order dated 18.8.2011, it is no more open for the petitioner to file documents in defence. The petitioner filed an application under section 151 CPC dated 5.2.2013, which was again dismissed by the Court below on 15.2.2013 (Annexure P-1).
3. Shri Chandil, learned counsel for the petitioner submits that the order dated 18.8.2011 whereby the defence of the petitioner was struck off, will not preclude the petitioner to put forth his case and defence. Learned counsel further submits that right of defence of the petitioner only under section 12(1) of the Act is struck off and still his right of defence under general law is applicable to him. In the written statement, the petitioner has denied the landlord and tenant relationship with the plaintiffs. Therefore, even if the defence is struck off under section 13(6) of the Act, still the petitioner has a right to establish that the respondents are not the landlord and owner of the suit property and to prove this defence, the documents are required to be taken on record.
4. Shri Chandil, learned counsel for the petitioner, in support of his contentions, relied on following judgments :
(i) Premdas (plaintiff) v. Laxmi Narayan Pande [1964 JLJ 87=1964 MPLJ 190];
(ii) Kewal Kumar Sharma v. Satish Chandra Gothi and another [1991 JLJ 86];
(iii) Sabiha Masood v. Tahabbur Ali Khan [1998(2) MPLJ 610]; and
(iv) Laxminarayan v. Jambu Dall Mills and others [1993 JLJ 117].
5. Per contra, Shri A.V. Bhardwaj, learned counsel for the respondents supported the orders passed by Court below and relied on following judgments :
(i) Modula India v. Kamakshya Singh Deo [AIR 1989 SC 162];
(ii) Mohd. Mahmood Hussain v. Asad Ulla Usmani [1997(II) MPJR 145]; and
(iii) Manorama Devi and others v. Suresh and others [1999(I) MPJR 287].
6. I have heard learned counsel for the parties and perused the record.
7. The pivotal question involved in this matter is whether the Court below was right in rejecting the application preferred by the petitioner under Order 8 rule 1(3) of CPC on the pretext that the defence of the petitioner was already struck off on 18.8.2011?
8. It is apt to trace the legal history on this aspect.
(I) A Division Bench of this Court in Premdas (supra), opined that it is true that when a party’s defence on eviction matter is struck out, then he cannot have an opportunity to cross-examine the plaintiff’s witnesses and address the Court in regard to that matter. A suit may be defended not only by filing a written statement but also by able and successful cross-examination of plaintiff’s witnesses and arguments.
(II) In Modula India (supra), the apex Court while dealing with an analogous provision under W.B. Premises Tenancy Act (12 of 1956), opined as under :
“Even in a case where the defence against delivery of possession of a tenant is struck off under section 17(3) the defendant tenant, subject to the exercise of an app
