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Analysing the retrieved Case Laws
Scanned Judgements…!
The courts have consistently held that once the defence is struck off, the defendant cannot argue on the merits of the case or introduce new points. Their role is primarily to respond to the plaintiff's case, and their procedural rights are curtailed accordingly ["Siya Pyari VS Thakurji - Allahabad"], ["PENGARAH HOSPITAL SELAYANG & ORS vs AHMAD AZIZI ABDULLAH JAMES & ORS - Court Of Appeal"].
Analysis and Conclusion:
References:- ["Abhra Aich VS Arati Paul - Calcutta"]- ["YEW SEE TAK vs CG COMPUTERS SDN BHD & ORS - High Court"]- ["SURIA ACTIVE RESOURCES SDN BHD vs PENANG REGIONAL DEVELOPMENT AUTHORITY (PERDA) & ORS - High Court"]- ["ADITI GARG Vs SHAMSHER SINGH MAVI - Punjab and Haryana"]- ["Siya Pyari VS Thakurji - Allahabad"]- ["PENGARAH HOSPITAL SELAYANG & ORS vs AHMAD AZIZI ABDULLAH JAMES & ORS - Court Of Appeal"]- ["GRACEFUL FRONTIER SDN BHD & ORS vs THEOW SAY KOW @ TEOH KIANG SENG & ANOR - High Court"]
In civil litigation, few moments are as daunting for a defendant as having their defence struck off. Whether due to delays in filing a written statement, non-compliance with court orders, or other procedural lapses, this drastic step leaves many wondering: What rights remain? Can the defendant still argue their case? This question—judgment on defendants right to argue after striking of his defence—lies at the heart of numerous court battles, particularly under provisions like Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) in India.
This blog post breaks down the legal position, drawing from landmark judgments and related cases. While courts typically allow limited participation to ensure fairness, the scope is strictly confined. Note: This is general information based on precedents and not specific legal advice. Consult a qualified lawyer for your situation.
Striking off a defence is a penal measure invoked when a defendant fails to comply with procedural rules, such as timely filing a written statement under Order VIII Rule 1 CPC or depositing rent in eviction suits under Order XV Rule 5 CPC. It's not a default judgment but proceeds the case as if no defence exists, placing the onus squarely on the plaintiff to prove their claim Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628.
However, this is primarily procedural, not a complete bar on participation. Courts exercise this power with caution and discretion, as it's not mandatory and must fit the circumstances Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628Abani Mohan Maji VS Kartic Chandra Das - 1979 0 Supreme(Cal) 265. For instance, in rent recovery suits, failure to deposit monthly arrears can lead to striking off, but explanations like legal advice errors are scrutinized strictly Sunil Kumar VS Kapoor Chandra Agarwal Dharamshala Trust - 2019 Supreme(All) 1041.
The good news? Defendants aren't silenced entirely. Key judgments affirm limited rights to cross-examine witnesses and make arguments based on the plaintiff’s caseModula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628.
Even post-striking, defendants can test the plaintiff's evidence through cross-examination. In Bela Das v. Samarendra Nath Bose, the Supreme Court held: even after defence is struck out, the defendant is entitled to cross-examine witnesses and argue on the plaintiff’s case, but cannot lead evidence of his own or re-plead the defence Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628. This ensures the plaintiff's case is rigorously scrutinized without letting the defendant present a fresh defence.
Similarly, Gurudas Biswas v. Charu Panna Seal clarified that under Section 17(3), the defendant retains cross-examination rights, limited to challenging the plaintiff's witnesses Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628. In Shyamcharan Sharma v. Dharamdas, the Court reiterated: the defendant retains the right to cross-examine witnesses and argue, but cannot lead evidence or re-plead the defence Swapan Kumar Gupta VS Shambhu Nath Mitra - 1984 0 Supreme(Cal) 14.
Defendants may argue to demolish or challenge the plaintiff’s case, focusing on credibility, sufficiency of evidence, or inconsistencies Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628Swapan Kumar Gupta VS Shambhu Nath Mitra - 1984 0 Supreme(Cal) 14. This participation tests the plaintiff's burden of proof, upholding natural justice principles.
These rights are narrowly tailored:- No leading own evidence: Once struck, defendants cannot adduce witnesses or documents for their defence Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628.- No re-pleading or new facts: Cross-examination can't introduce a new or different defence or re-establish the original one Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628Swapan Kumar Gupta VS Shambhu Nath Mitra - 1984 0 Supreme(Cal) 14.- Court's discretion governs: Striking is exercised with restraint, and participation scope is restricted accordingly Abani Mohan Maji VS Kartic Chandra Das - 1979 0 Supreme(Cal) 265.
In exceptional cases, limited cross-examination beyond basics may be allowed, but the norm is demolition of the plaintiff's case only Swapan Kumar Gupta VS Shambhu Nath Mitra - 1984 0 Supreme(Cal) 14.
This principle echoes in various contexts. In Malaysian cases under Rules of Court 2012 Order 18 r 19(1), striking out replies or claims for new allegations emphasizes proper pleading, indirectly supporting restrained participation post-striking IOUPAY LIMITED & ORS vs KUAN CHOON HSUING & ORSIOUPAY LIMITED & ORS vs KUAN CHOON HSUING & ORS. Courts there deem expansive pleadings scandalous, frivolous, vexatious, mirroring Indian caution against abuse.
In eviction suits, non-compliance with deposit rules leads to striking, as in Haidar Abbas referenced cases where tenants defaulted for 40 months despite explanations—defence struck without condonation Sunil Kumar VS Kapoor Chandra Agarwal Dharamshala Trust - 2019 Supreme(All) 1041Om Prakash Gupta VS District Judge - 2019 Supreme(All) 1612. Yet, even here, procedural fairness implies residual rights, aligning with Supreme Court views.
Contrastingly, striking applications are denied if claims aren't plainly unsustainable, allowing trials to proceed GUNALAN SAGARAN vs MOHD NASRI ABDUL RAHIM & ORS. In negligence claims, delays by defendants weaken their striking bids, underscoring timely action Pengarah Hospital Selayang & Ors vs Ahmad Azizi bin Abdullah James & Ors. These highlight courts' reluctance for drastic measures unless justified, preserving participatory rights where possible.
Under CPC Order VIII Rule 10, striking for late written statements is directory, not mandatory, especially with extensions Guru Dutt VS Siddhant Daluja - 2023 Supreme(J&K) 747. In rent suits, power under Order XV Rule 5 can be invoked anytime for non-deposit, but pre-striking, courts verify records SHAILENDRA SHARMA VS AMIT BANSAL - 2017 Supreme(All) 378. Post-striking, the suit proceeds, often to decree if plaintiff proves their case RAJENDER BANSAL VS BHURU (D) THR. LRS. - 2016 7 Supreme 660.
Judges must weigh defaults against justice. Striking isn't automatic; circumstances like first hearings or objections matter Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628. In copyright infringement, even post-injunction breaches, courts appoint receivers without fully barring argument, showing balanced approaches Kanade Anand Udyog Pvt. Ltd. VS Indiana Gratings Pvt. Ltd. - 2010 Supreme(Bom) 1628.
Courts recommend caution: Courts should exercise caution and restraint when striking out defence, ensuring that the defendant’s limited rights to argue are preserved Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628.
In summary, after a defence is struck off, defendants retain valuable but limited rights to cross-examine and argue, aimed at testing the plaintiff's case without reintroducing their defence Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628Swapan Kumar Gupta VS Shambhu Nath Mitra - 1984 0 Supreme(Cal) 14Abani Mohan Maji VS Kartic Chandra Das - 1979 0 Supreme(Cal) 265. This strikes a balance between penalizing defaults and upholding fair trials.
Key Takeaways:- Cross-examine and argue: Yes, to challenge plaintiff's evidence.- Lead evidence or re-plead: No.- Discretion rules: Courts act carefully.
Familiarize yourself with these principles to navigate civil suits effectively. For tailored guidance, engage legal experts.
References:1. Modula India VS Kamakshya Singh Deo - 1988 0 Supreme(SC) 628: Core judgment on retained rights.2. Swapan Kumar Gupta VS Shambhu Nath Mitra - 1984 0 Supreme(Cal) 14: Limits to demolishing plaintiff's case.3. Abani Mohan Maji VS Kartic Chandra Das - 1979 0 Supreme(Cal) 265: Discretionary exercise.
#DefenceStruckOff #CivilLitigation #DefendantRights
The learned court below rejected the application, inter alia, holding that the application filed by the defendants was redundant in view of the fact that his defence has been struck off and the order striking out the defence, had been upheld by the Honble High Court. ... Right to cross-examine of the plaintiff, when defence has been struck off, has been upheld by the Honble Apex Court. The defendant does not have any right to argue on other points or....
JUDGMENT (Striking Out) Kenneth St James JC: Prelusion [1] The 2nd and 3rd Defendants (D2D3) apply to strike out the Plaintiff's (P) claim against them under all four limbs of O 18 r 19(1) of the Rules ... [35] If D2D3's striking out application is not allowed, they have not lost their case. The merits of their defence will still be canvassed, heard and determined at trial. ... [36] If, on the other hand, D2D3's striking out application is allowed, then P has lost the opportunity, ac....
They argue that these paragraphs are necessary to respond to D5's defences in paras 15 and 16 of his Defence, where he claimed he merely acted on instructions from D1 and had no real influence over financial management. ... [4] On 24 May 2024, the Plaintiffs filed a Reply to D5's Defence, containing certain paragraphs that are now the subject of a striking out application. ... [17] The Plaintiffs argue that the Relevant Paragraphs are necessary to prevent any element of surprise and to address avermen....
[17] The Plaintiffs argue that the Relevant Paragraphs are necessary to prevent any element of surprise and to address averments which arose for the first time in D5's Defence. ... They argue that these paragraphs are necessary to respond to D5's defences in paras 15 and 16 of his Defence, where he claimed he merely acted on instructions from D1 and had no real influence over financial management. ... [4] On 24 May 2024, the Plaintiffs filed a Reply to D5's Defence, containing certain paragraphs that ....
JUDGMENT Kenneth St James JC: (Striking Out) Prelusion [1] The Plaintiff (P) filed this suit against the five Defendants here. ... [18] P should be given the opportunity—in fact, P has the right—to go to trial to prove its claim against D1/PERDA to get the remedy of damages. D1/PERDA likewise has the opportunity, and the right, to go to trial to defend against the claim. ... [12] In Tan Wei Hong, the Federal Court, through the written judgment of Justice Ramly Ali FCJ, sets out as fo....
[28] If D1-D4Co's striking out Application is allowed, then P would lose the opportunity-actually, the procedural right-to prove his claim against D1-D4Co, at trial. P will not be given his day in Court. ... P's Prayer In The Application [13] Foremost, I would like to point out that D1-D4Co's striking out Application prays that an Order be given to strike out P's claim entirely ie not only as against D1-D4Co, but as against all the Defendants. ... , and may order the action to be stayed or dismissed or judgme....
right to oppose the filing of the written statement filed by the defendants. ... The defendants/petitioners have questioned the impugned order inter alia on the same grounds on which application filed by respondent No. 1/plaintiff under Order VIII Rule 10 CPC, for striking of defence of the petitioners was opposed. ... Consequentially application filed by the plaintinff/contesting respondent for striking of defence of the defendants/petitioners is di....
She has approached this Court being aggrieved by the order dated 18.07.2025 (Annexure P-5), whereby her applica(cid:10)on seeking striking off the defence of the defendants was dismissed. 2. ... It further emerges from the record that on 16.11.2022, the pe(cid:10)(cid:10)oner moved an applica(cid:10)on for striking off the defence of the defendants on account of their failure to file the wri5en statement within the prescribed (cid:10)me. ... Once the wri5en statement stood filed on th....
The defendants argue that the Director of the Selayang Hospital is not the person who treated the deceased Sutini Yadi and for that reason the plaintiffs had failed to comply with ss 5 and 6 of the Act The plaintiffs submit that they had the right to file a claim against ... Abdul Malik Ishak JCA (delivering the ex tempore judgment of the court):This is an ex tempore judgment of this court. ... The defendants argue that in the statement of claim the plaintiffs named ....
Even the defendants in their Statement of Defence did not state the names of the doctors. In our judgment, it is sufficient to cite the first defendant as the national head of the Selayang Hospital. In Oh Thevesa v. ... Two years seven months and twenty-five days after filing their defence, the defendants filed their application to strike out the plaintiffs' writ of summons and the statement of claim. The delay must be construed adversely against the defendants. ... [10] The #HL_STA....
The revisional court has committed a grave error of law in extending benefit of these deposits without considering the legal position laid down in Larger Bench judgment in Haidar Abbas (supra)." There is no escape from the mischief of Order 15 Rule 5 CPC. The trial court was justified in striking off the defence.
There is no escape from the mischief of Order 15 Rule 5 CPC. The revisional court has committed a grave error of law in extending benefit of these deposits without considering the legal position laid down in Larger Bench judgment in Haidar Abbas (supra). The trial court was justified in striking off the defence.
Upholding striking off defence of the defendant, the Apex Court in paragraphs 8 and 9 of the judgment, as reported, observed as follows: The Courts below did not accept this contention and found as a fact that there was a default in payment of the admitted rent. “8. ........We may point out that in the case on hand when the appellant filed an application for striking off, the tenant filed a written statement objecting to the striking off on the ground that there was no default in payment of the monthly rent as provided under Rule 5(1) of Order 15. The trial Court found othe....
1 continued with the suit, recorded the evidence of the plaintiff and ultimately decreed the suit vide judgment and decree dated December 12, 2008. 3. Five months thereafter, i.e., on October 29, 2008, notification was issued whereby the area where the suit premises situate was declared as urbanised area and, thus, was brought within the fold of Rent Act, 1973. The Trial Court, however, after striking off defence of Respondent No.
The striking out of the defence of the Defendants; and (iii) Essentially, in the fresh motion three reliefs were sought by the Plaintiff – (i) Action under Order 39 Rule 2A for breach of the order of injunction; (ii) The appointment of a Receiver of electroforged grating machines manufactured from parts based on the drawings of the Plaintiff.
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