TMI Blog1988 (9) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... 56, (hereinafter referred to as the 'Act') the defendant-tenant cannot cross- examine the witnesses called by the plaintiff, excepting on the point of notice under section 13(6) of the said Act. The correctness of the view taken by the majority is contested in this appeal. Though the learned Judges were of opinion that the issue decided on the reference raised substantial questions of law of general importance, they considered themselves unable to grant a certificate of fitness for appeal to this Court since the reference had arisen only on an interim order and the view expressed did not result in a judgment, order or decree against which leave to appeal could be granted. Thereupon the aggrieved party filed a petition for special leave to appeal before this Court, which was granted. It is in this manner that the issue has been brought up before this Court. A detailed factual background is not necessary since the question raised is purely one of law. It may, however, be mentioned that the respondent in this appeal filed a suit in 1979 on the original side of the Calcutta High Court praying for a decree directing the defendant (present appellant) to deliver up vacant an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit into the Court or with the controller or pay to the landlord all arrears of rent due from him with interest within a specified period and also to continue to deposit or pay the current rent thereafter regularly month after month. Sub-section (2) provides a machinery for the determination of the amounts to be so paid or deposited, in case of dispute. Sub-section (2A) and (2B) contain provisions enabling the Court, subject to certain restrictions, to extend the time for such deposit or payment or allow the deposit or payment to be made in instalments. If the tenant deposits or pays the amounts as above, he is protected from being evicted from the premises on the ground of non-payment of rent: sub-section (4). If, on the other hand, he fails to deposit any amount referred to above within the time permitted, the consequence set out in sub- section (3) will follow. That sub-section reads: (3) If a tenant fails to deposit, or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2A), or fails to deposit or pay any instalment permitted under clause (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do so. (b) Our attention has been drawn to two provisions of the Rules framed by the Calcutta High Court governing proceedings on its Original Side. These rules read as follows: Chapter IX Rule 4: Suit heard ex parte against defendants in default--Where one or more of several defendants has or have filed a written statement or written statements, but another or others has or have not, the suit shall, unless otherwise ordered, upon production of a certificate showing such default, be heard ex parte as against the defaulting defendant or defendants. Chapter XIV Rule 3: Where heard ex parte defendant may, in person, cross-examine and address the Court--Where a suit is heard ex parte against any defendant, such defendant may be allowed to cross-examine, in person, the plaintiff's witnesses, and to address the Court; but unless the Court otherwise specially orders, evidence will not be received on his behalf, nor will he be allowed the assistance of an Advocate or Attorney. (c) Another provision that may be referred to in this context is the one in Order 11 rule 21 of the Code of Civil Procedure (C.P.C.) This rule reads thus: 21(1) Non-compliance with order for di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel urges that is a well established principle, particularly under the Rent Acts, that it is for the plaintiff to satisfy the court that the conditions set out in the statute to enable him to obtain an order of eviction are strictly fulfilled. Even where a defendant is said to be ex parte, the plaintiff is not absolved from this responsibility and it is also necessary for the Court, in such cases, to satisfy itself that the plaintiff is entitled, on the terms of the statute, to the relief prayed for: vide K.K. Chari v. R.M. Seshadri, AIR 1973 3 S.C.R. 691 and Inder Mohan Lal v. Ramesh Khanna, AIR 1987, S.C. 1986. In doing this the Court can and should take the help and assistance of the defendant and counsel. It should be open to the defendant/tenant, even if he cannot put up a positive case, to show to the Court that the plaintiff's suit or petition should fail on its own inherent weaknesses. Learned counsel has relied on certain decisions and the observations therein in support of his submissions. These may be referred to: An early decision of this Court, Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya, [1955] 2 S.C.R. 1, was concerned with the question whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sounder rule is to leave the Court with an unfettered discretion so that it can take every circumstances into consideration and do what seems best suited to meet the ends of justice in the case before it. M/s. Paradise Industrial Corpn. v. M/s. Kiln Plastics Products, [1976] 1 S.C.C. 91 was a case which arose under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The trial Judge passed an order directing the tenant to deposit certain amounts in court, in default, making the notice absolute and directing that the defence would be struck off and the suit fixed for ex parte hearing. An ex parte decree followed. A single Judge of the Bombay High Court set aside the ex parte decree on the ground that the above order was illegal and without jurisdiction as it did not conform to the provisions contained in section 11(4) of the Act in question which only provided that, in case the directions of the court are not complied with, the defendant shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify. It did not, in the view of the learned Judges, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner in which the discretion of the court should he exercised, the Court made certain general observations towards the end of the judgment of the following effect: It was further contended that the High Court was in error in observing that 'in view of the clear language of Order XI, Rule 21' the defendant has no right to cross- examine the plaintiff's witnesses. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant be placed in the same position as if he has not defended . This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte. In Sangram Singh v. Election Tribunal, [1955] 2 SCR 1, it was held that if the court proceeds ex parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention was rejected by the first court and first appellate court but the High Court accepted the plea and decreed the suit for eviction. The Supreme Court allowed the tenant's appeal. It observed: It is true that in order to entitle a tenant to claim the protection of s. 12(3), the tenant has to make a payment or deposit as required by s. 13, that is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent. It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing'of the suit for eviction, will entitle the landlord straightaway, to a decree for eviction. The consequences of the deposit or payment and non-payment or non-deposit are prescribed by subss. (5) and (6) of s. 13. Since there is a statutory provision expressly prescribing the consequence of non- deposit or non-payment of the rent, we must look to and be guided by that provision only to determine what shall follow. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was still an issue to be tried. If that be so, the question at once arises, what is the issue to be tried? If the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant under section 14(1)(a), surely the tenant has the right to participate in the proceedings and cross-examine the landlord. It must logically follow as a necessary corollary that if the defence is not to be struck out under Section 15(7) it means that the tenant has still the defences open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under Section 14(2). What is of essence of Section 14(2) and of Section 15(6) is whether there has been a substantial compliance with the order passed under Section 15(1). The words as required by section 15(1) in these provisions must be construed in a reasonable manner. If the Rent Controller has the discretion under Section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under Section 15(1) where the failure of the tenant to make such payment or deposit was due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co- sharer-landlords were not entitled to maintain the suit for eviction. It may also be added that the learned Munsif in his order dated 8.7.1964 striking out the defence, which order was confirmed by a Bench of the High Court in Civil Revision No. 824 of 1964 decided on 21.4.1964, had pointed out on the basis of the defendant's statements in his written statement as also in his rejoinder to the plaintiff's petition under section 11A of the Act that the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords. In that view of the matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause (d) of section 2 of the Act. In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole. The hearing of the suit ex-parte was, therefore, legal and valid. The contrary view taken by the High Court is erroneous in law. A brief reference may now be made to the conflict of decisions in the Calcutta High Court which occasioned the refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w or have notice when the suit is going to be heard. But that is immaterial and that is a risk to which such a defendant makes himself open by such default. But should he by any means whatever know that the suit is being heard from the undefended list he can nevertheless appear at such hearing and exercise the rights I have mentioned. Rankin C.J. in the Court of appeal sees the possibility of cross-examination in such a case by the defendant of plaintiff's witnesses. I have not been able to persuade myself to take the view that a suit can only be defended by filing a written statement or by entering appearance under the Rules. In my opinion filing of written statement is not the only way of defending a suit. A defendant in my judgment may ably and successfully defend a suit against him by cross-examination and arguments. In S.B. Trading Company Ltd. v. Olympia Trading Corpn. Ltd., AIR 1952 Calcutta 685 Sarkar, J. (as His Lordship then was) had to consider the effect of strike off of defence under section 14(4) of the 1950 Act. In that case, which was a suit for ejectment, the defence had been struck off as the defendants had not complied with an order made under s. 14( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monthly rent regularly. If the tenant, on being directed to pay the current rent month by month, does not do so, the Act quite clearly provides that he will such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position the general law. I do not find any justification in the language of section 14(4) to limit the defence against ejectment contemplated by it to defence against ejectment only on the ground mentioned in section 12(1)(i) of the Act. The question next arose before a Full Bench, consisting of S. P. Mitra, C.J., M.M. Dutt, J. and A.K. De, J. in Gurudas Biswas v. Char Panna . Seal, AIR 1977 Cal. 110 in the context of the 1956 Act. One of the questions before the Full Bench was whether, in a suit for ejectment where the defence as to delivery of possession had been struckout under section 17(3) of the Act, the defendant could take thedefence of the non-existence or invalidity of a notice under section 13(6) in the court below and in the court of appeal. This question was answered in the affirmative, endorsing the conclusion reached in an of earlier decisions of the Court. The reasoning was that the strike off only dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed on the observations in Gurudas Biswas v. Charu Panna Seal, AIR 1977 Cal. 110. M.M. Dutt, J., delivering the judgment of the Bench, observed that, strictly speaking, the observations relied upon did not relate to the points that had been posed before the Full Bench for consideration and hence had no binding force. He proceeded to consider the question on general principles. He referred to Order 9, Rr. 6 and 7 of the C.P.C., the decision in Sangram Singh v. Election Tribunal, AIR 1955 S.C. 425, Order I I Rule 21 of the C.P.C., the decisions in Paradise Industrial Corpn. v. M/s. Kiln plastics Products, (supra) and the observations in Babbar Sewing Machine Company v. Trilok Nath Mahajan, (supra) and concluded: It is true that the Supreme Court did not express, any opinion on the question, but it is apparent that the Supreme Court was inclined to hold that the defendant was, entitled to cross-examine the witnesses of the plaintiff. The above decisions of the Supreme Court do not support the observations made in the Full Bench case referred to above, namely, that when the defence of the defendant has been struck out he would not be permitted to cross- examine the plaintiff&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff by requiring that he has to establish his case by leading evidence to substantiate the same. There is no justification for imposing on him further handicap of the defendant's participation, even to a limited extent. (d) The concession that the defendant can cross-examine the plaintiff's witnesses or put forward arguments to demolish the plaintiff's case will lead to confusion and practical difficulties. The pleas sought to be taken by the defence in S. B. Trading Co. v. Olympia Trading Coprn. Ltd., AIR 1952 Cal. 685 and in Bela Das v. Samarendra Nath Bose, [1975] 2 SCR 1(1004 and the errors pointed out by M.M. Dutt. J. in the mode of the cross- examination permitted in Daya Moyee v. Dal Singer Singh, AIR 1979 Cal. 332 amply illustrate the difficulties of the situation. It will be impossible to prevent the cross-examination under the guise of demolishing the plaintiff s case from becoming the indirect medium for putting forth all the pleas that have been taken up in the defence that has been struck off. (e) Apart from the view of Sarkar, J. and the decision of the Full Bench in Gurudas Biswas v. Charu Panna Seal, AIR 1977 Cal. 110, the Patna High Court in Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pn. and Eabbar Sewing Machine Company, (supra) are categorical and directly on this aspect of procedural law and deserve to be followed in the context of like provisions of tenancy legislations as well. We have considered the contentions urged on behalf of both the parties and the respective view points of the two lines of decisions of the High Court. We have also perused the decisions of this Court to which reference has been made. Though none of them is a direct decision on the issue before us, the observations made, in so far as they enunciate general principles and relate to analogous statutory provisions are most helpful and instructive. After giving careful thought to all the aspects, we have come to the conclusion that the view expressed in the case under appeal by Ramendra Mohan Dutta, Acting Chief Justice, is preferable to the view taken by the other two learned Judges. It is a more liberal and equitable view and also one consistent with the requirements of justice in such cases. We proceed now to set out the reasons for our conclusion. A provision like the one in S. 17(4) is a provision in terrorem. It penalises the defendant for certain defaults of his. As pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the plea of ejectment. We agree that full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff's case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiff's witnesses really constitutes a finishing touch which completes the plaintiff's case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff's witnesses cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross- examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore, 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. Looked at from this point of view it should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion. A third safeguard which we would like to impose is based on the observations of this court in Sangram Singh's case. As pointed out therein, the essence of the matter in all such cases is that 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. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway. These provisions of the Code of Civil Procedure, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement. rather indicate a contrary position, namely, that even in such cases, it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us. For the above reasons, we agree with the view of Ramendra Mohan Dutta, ACJ that, 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: (A) to cross-examine the plaintiff's witnesses; and (b) to address argument on the basis of the plaintiff's case. We would like to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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