Kusum @ Suman Yadav and Another vs Dulli Bai and Another

N.K. Agarwal, J.—In an evication suit filed by respondents/plaintiffs under the provisions of M.P. Accommodation Control Act, 1961 (hereinafter referred to as ''the Act''), "defence against evication" was struck off by the trial Court u/s 13(6) of the Act.

The trial Court although permitted defendants/petitioners for cross examination of plaintiffs'' witnesses but denied the opportunity to lead evidence. Hence, this petition. Shri R.K. Tiwari, learned counsel appearing for the petitioners would submit: petitioners have taken a specific defence in the case under general law that the respondents are not owners/landlords of the suit house. Specific issue has also been framed by the trial Court in this regard, therefore, the petitioners are within their right to prove their defence taken under general law and for that purpose they are entitled to lead evidence inspite of the fact that their defence has already been struck off by the trial Court u/s 13(6) of the Act.

On the other hand, Shri Ravindra Agrawal, learned counsel for the respondents placing his reliance upon the judgment of the Supreme Court in the matter of Modula India Vs. Kamakshya Singh Deo, as submitted that in a case where defendant''s defence against eviction has already been struck off by the trial Court, the defendant, would be only entitled: (a) to cross examine the plaintiffs'' witnesses; and (b) to address argument on the basis of plaintiffs'' case and is not entitled to lead any evidence of his own, and therefore, the learned trial Court has rightly rejected petitioners'' prayer to adduce evidence on issue No. 6 and petition being sans merit deserves to be dismissed.

I have heard counsel for the parties and perused the material available on record including impugned order.

The core question arises for decision making in the instant case is whether in a suit for ejectment on any of the grounds stated in Section 12 of the Act, it is open to the defendant-tenant, whose ''defence against eviction; has been struck off by an order under sub Section 6 of Section 13, to raise other defences not falling u/s 12 against ejectment.

Before examining the question involved in this petition, it would be appropriate to refer Section 13 of the Act which reads thus:

When tenant can get benefit of protection against eviction - (1) On a suit or any other proceeding being instituted by the landlord on any of the grounds referred to in section 12, or in any appeal or any other proceeding by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice or appeal or of any other proceedings, or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payments made; and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at the rate till the decision of the suit, appeal or proceeding, as the case may be.

13(2) If any suit or proceeding referred to in sub-section (1), there is any dispute as to the amount of rent payable by the tenant, the civil court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of sub-Section (1) till the decision of the suit or appeal.

13(3) If in any proceeding referred to in sub-section (1), there is any dispute as to the persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount, payable by him under sub-section (1) or sub-section (2), and in such a case, no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.

13(4) If the civil Court is satisfied that any dispute referred to in sub-section (3) has been raised by a tenant for reasons which are false or frivolous, the Court may order the defence against eviction to be struck out and proceed with the hearing of the suit.

13(5) If a tenant makes deposits or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.

13(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceeding, as the case may be.

The object of section 13 is clearly to prevent tenant from stopping the payment of rent, when an ejectment suit is filed against him. It is also, as is evident from sub-section (3), to relieve the landlord from the necessity if filing a separate suit for rent for the period covered by the pendency of the suit. So also, it is to give protection to a tenant who has fallen in arrears of rent, but who makes a deposit as required by sub-section (1) or sub-section (2). Having regard to this object of the provision and regard being had to the fact that section 13 is a provision of a special Act giving to the tenant, whose tenancy has been determined, the status of a statutory tenant and special protection against eviction u/s 12, it is difficult to construe the expression "defence against eviction" as meaning defence of any kind, no matter falling under the special Act or under the general law against eviction. In the context of the special Act the phrase "defence against eviction" used in sub-section (4) or sub-section (6) can only mean that defence against eviction which is given by section 12.

A division bench of the High Court of Madhya Pradesh in the case Premdas Vs. Laxmi Narayan, by construing the expression "defence against eviction" used in sub Section (4) or sub-Section (6) of Section 13 of the Act has held: means the "defence against eviction" resting on section 12 of the Act and when an order under those sub-section is made striking out the tenant''s defence against eviction, the tenant does not loose his right of putting up a defence to the ejectment suit which does not fall u/s 12.

The same view has been reiterated by the single bench of the High Court of Madhya Pradesh in case of Shyamlal Agrawal and Others Vs. Sardar Gurubachan Singh, wherein the learned Single Bench of High Court of Madhya Pradesh has held: It is well established that u/s 13(6) of the Act only defence u/s 12 of the Act is liable to be struck off.

I am in respectful agreement with the above pro ions of law laid down by the High Court of Madhya "Pradesh in cases referred hereinabove.

The Hon''ble Supreme Court in the matter Modula India Vs. Kamakshya Singh Deo, dealing with the rights of defendant-tenant whose "defence has been struck out" in the context of Section 17(4) of the West Bengal Premises Tenancy Act, 1956 has held in paragraph 24 of the judgment, which reads as under:-

For the above reasons, we agree with the view of Ramendra Mohan Datta, Acting C.J., that, even in a case where the defence against delivery of possession of a tenant is struck off u/s 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 plaintiffs witness; and

(b) to address argument on the basis of the plaintiff''s case.

We could like to make it clear that 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 plaintiffs case. In no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant''s case either directly or in the form of suggestion put to the plaintiff''s witnesses.

There is no quarrel with the proposition of law laid down by the supreme Court in the above case but in the instant case the petitioner has denied the relationship of landlord and tenant between him and the plaintiff and also denied plaintiffs ownership. Learned trial Court has also framed specific issue in this regard therefore, he does not loose his right of putting up a defence to the ejectment suit which does not fall u/s 12. Therefore, the above judgment of Hon''ble Supreme Court, relied upon by respondent/landlord is of no help to him in the facts and circumstances of the present case.

In view of above, the petitioner is entitled to defend eviction suit on the above plea raised under the general law and for that he can adduce evidence in spite of the fact that his defence against eviction has been struck off by the trial Court u/s 13 (6) of the Act.

For the reasons mentioned hereinabove, the sufficient grounds have been made out for interference of this Court under Article 227 of the Constitution of India. The petition deserves to be and is hereby allowed. The part of the order impugned whereby the trial Court has rejected petitioners'' prayer for adducing evidence on Issue No. 6 is set aside. Trial Court is directed to permit the petitioner to lead evidence on issue No. 6 and thereafter to proceed with the case in accordance with the law. No order as to costs.