PETITIONER:

MODULA INDIA Vs.

RESPONDENT:

KAMAKSHYA SINGH DEO DATE OF JUDGMENT27/09/1988 BENCH:

RANGNATHAN, S.

BENCH:

RANGNATHAN, S.

MUKHARJI, SABYASACHI (J)

CITATION:

1989 AIR 162 1988 SCR Supl. (3) 333

1988 SCC (4) 619 JT 1988 (4) 214

1988 SCALE (2)1163 ACT:

West Bengal Premises Tenancy Act, 1956-Section 17(3)

of--Nature and scope of rights of defendant whose defence is struck out in a suit for possession.

HEADNOTE:

The respondent flied a suit in the High Court for a decree directing the defendant (appellant) to deliver possession of certain premises. The appellant-tenant filed its written statement. During the pendency of the suit, orders were passed directing the appellant tenant to deposit certain sums in Court. The tenant made an application for permission to deposit the arrears of rent in monthly instalments alongwith the current rents. No orders were passed on this application on the ground of its being out of time. Subsequent to the disposal of this application, the defence of the tenant was struck out under section 17 of the Act. The tenant/appellant moved this Court.

Allowing the appeal, the Court, HELD: A provision as in s. 17(4) is a provision in terrorem, The Court will act with circumspection before striking out the defence of a tenant under this provision. This Court has interpreted provisions like this in rent acts to say that striking out defence is not obligatory on the Court merely because there is a default and that it is a matter for exercise of great restraint. But it does not necessarily follow that once the defence is struck off, the defendant is completely helpless and his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default. [356B-D]

Provisions of this type should be construed strictly and the disabilities of a person in default should be limited to the minimum extent consistent with the requirements of justice. This should be all the more so in the context of tenancy legislation, the main purpose of which is to confer protection on the tenants against eviction by the landlord, unless certain statutory conditions are fulfilled. The provisions should not be given any wider wider operation than could have been strictly intended by the legislature. [356E-F]

PG NO 333 PG NO 334 In truth and substance, the plea regarding the validity of the notice has invariably to be taken as a plea in defence in such suits. The rule is really an exception to the strict application of a rule that a tenant whose defence is struck out cannot be heard at-all against the plea of ejectment. [356H; 357A]

Full effect should be given to the words that defence against ejectment is struck off. But while it is true that, in a broad sense, the right of defence takes in all aspects including the demolition of the plaintiff’s case by cross-examination of his witnesses, it is equally correct that the cross-examination of the plaintiff’s witnesses really constitutes a finishing touch which completes the plaintiff’s case. No oral testimony can be considered satisfactory or valid unless it is tested by cross- examination. Mere statement of plaintiff’s witnesses cannot constitute plaintiff’s evidence unless it is tested by cross examination. The right of defence to cross-examine plaintiff’s witnesses can 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. Thus 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 that the plaintiff’s witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute. [357B-D]

The basic principle that where a plaintiff comes to court he must prove his case should not be whittled down even in a case where no defendant appears. [357E]

The defendant should be allowed his right of cross-

examination and arguments. This right should be subject to certain important safeguards. [357H; 358A]

First. the defendant cannot be allowed to lead his own evidence. [358A]

Secondly, if cross-examination is permitted of the plaintiff’s witnesses by the defendant whose defence is struck off, procedural chaos may result unless great care is exercised and it may be very diffcult to keep the cross- examination within limits. But this is a difficulty of procedure rather than substance. It is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion. [358B-D]

Thirdly, the latitude that may be extended by the Court to the defendant inspite of his not having filed a written statement should not cause prejudice to the plaintiff. The PG NO 335 Court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or participate in the proceeding, the plaintiff is not taken by surprise or gravely prejudiced; there is a wide discretion with the court and it is open to the court where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or regulate it in such manner as to avoid any real prejudice to the interests of plaintiff. [358E; F-G]

Even in a case where the defence against delivery of possession of a tenant is struck off under section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled to (a) cross- examine the plaintiff’s witnesses, and (b) address argument on the basis of the plaintiff’s case. The defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff’s case. In no circumstances should the cross-examination be permitted 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. [359G-H; 360B-C]

K.K. Chari v. R.H. Seshadri, AIR 1973 3 SCR 691; Inder Mohan Lal v. Ramesh Khanna, AIR 1987 SC 1986; Sangram Singh v. Election Tribunal, Kotah, Bhuray Lal Bava, [1955] 2 SCR 1; M/s. Paradise Industrial Corpn. v. M/s. Kiln Plastics Products, [1976] 1 SCC 91; M/s. Babbar Sewing Machine Company v. Trilok Nath Mahajan, [1978] 4 SCC. 198; Ram Chand v. Delhi Cloth & General Mills Co. Ltd., [1978] 1 SCR 241; Shyamcharan Sharma v. Dharamdass, [1980] 2 SCR 334; Ram Murti v. Bhola Nath, [1984] 3 SCC 111; Bela Das & Ors. v. Samarendra Nath Bose, [1975] 2 SCR 1004; S.N. Banerjee v. H.S. Suhrawardy, AIR 1928 Cal. 772; Dabendra Nath Dutt v. Smt. Satyabala Dassi & Ors., AIR 1950 Cal. 217; S.B. Trading Company Ltd. v. Olympic Trading Corpn. Ltd., AIR 1952 Calcutta 685; Gellatty v. Cannon, AIR 1953 Cal. 409; Gurudas Biswas v. Charu Panna Seal, AIR 1977 Cal. 110; Daya Moyee Sadhukhan v. Dal Singer Singh, AIR 1979 Cal. 332; Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and Ganesh Ram v. Smt. Ram Lakhan Devi, [1981] 1 All India Rent Control Journal 681, referred to.