Kiran (Smt.) and Others vs Ramesh Gugnani and Others

Heard.

This petition is filed by the plaintiff under Article 227 of the Constitution of India being aggrieved by the order dated 23/6/2009 passed by Third Additional District Judge, Gwalior in Civil Suit No. 36A/08 whereby the trial court has refused to grant permission to the petitioner plaintiff to cross examine the defendant and his witnesses.

Facts of the case, briefly stated, are that the petitioner plaintiff filed a civil suit for declaration and grant of injunction against the respondent defendant on notice of the suit being issued, the respondent defendant filed his written statement alongwith which he has filed counter claim stating that the plaintiff is a tenant in the suit property and the plaintiff did not deposit the rent in accordance with the provisions of Section 13 of the M.P. Accommodation Control Act. Hence, the trial Court vide order dated 27/2/ 2009 struck out the defence of the plaintiff. Subsequently, when the statements of the defendant and his witnesses were recorded, the plaintiff prayed for cross examining those witnesses, but this permission was rejected by the trial court on the ground that the defence of the plaintiff has already been struck out.

The approach adopted by the court below is contrary to law and is without any jurisdiction.

The Apex Court in its judgment in the case Modula India Vs. Kamakshya Singh Deo, has held that even if defence under the Accommodation Control Act is struck off, other defence available under the general law is always available to the tenant and therefore, the tenant has right to cross examine and landlord and his witnesses to point out falsity or weakness of the case.

Division Bench of this Court in the case of Kewal Kumar Sharma vs. Satish Chandra Gothi, 1991 JLJ 86, has held that even if defence available to the tenant under the provisions of the Accommodation Control Act is struck down, still defence which is available to the tenant under the general law is always open.

In such a situation, we find that the trial court has committed jurisdictional error in refusing to grant permission to the present petitioner plaintiff to cross examine the defendant and his witnesses.

Hence, we allow this writ petition, set aside the impugned order and present petitioner plaintiff to cross examine the defendant and his witness. The present petitioner plaintiff shall also lead evidence in his defence as permissible by law. The trial Court shall decide the suit positively before 31st of December, 2009.