Ramesh Kumar vs Smt. Sudha Gupta and Others

Sujoy Paul, J.—The order dated 15-02-2013 (Annexure P-1) and the order dated 22-12-2012 (Annexure P-2) passed by Second Additional District Judge, Gwalior (MP) in Civil Suit No. 11-A/2010, are called in question in this petition filed under Article 227 of the Constitution. The plaintiffs-respondents filed a suit for eviction and recovery of rent. The Court below by order dated 18-08-2011 struck off the defence of the petitioner u/s 13(6) of M.P. Accommodation Control Act, 1961 [hereinafter referred to as " the Act'''']. Thereafter, the respondents-plaintiffs filed an application under Order 7 Rule 14(3) CPC to take certain documents on record. The application of the plaintiffs-respondents was allowed by the trial Court on 14-08-2012 (Annexure P-7). Thereafter, the petitioner-defendant preferred an application under Order 8 Rule 1(3) read with Section 151 CPC along-with list of documents before the Court below. The Court below dismissed the said application (Annexure P-7) by order dated 22-02-2012 (Annexure P-3). It was held by the Court below that once the defence of the petitioner was struck off by order dated 18-08-2011, it is no more open for the petitioner to file documents in defence. The petitioner filed an application u/s 151 CPC dated 05-2-2013, which was again dismissed by the Court below on 15-02-2013 (Annexure P-1).

Shri Chandil, learned counsel for the petitioner submits that the order dated 18-08-2011 whereby the defence of the petitioner was struck off, will not preclude the petitioner to put forth his case and defence. Learned counsel further submits that right of defence of the petitioner only u/s 12(1) of the Act is struck off and still his right of defence under general law is applicable to him. In the written statement, the petitioner has denied the landlord and tenant relationship with the plaintiffs. Therefore, even if the defence is struck off u/s 13(6) of the Act, still the petitioner has a right to establish that the respondents are not the landlord and owner of the suit property and to prove this defence, the documents are required to be taken on record.

Shri Chandil, learned counsel for the petitioner, in support of his contentions, relied on following judgments:-

(I) Premdas Vs. Laxmi Narayan,

(II) Kewal Kumar Sharma Vs. Satish Chandra Gothi and Another,

(III) Sabiha Masood Vs. Tahabbur Ali Khan,

(IV) Laxminarayan Vs. Jambu Dal Mills and Others,

Per contra, Shri A.V. Bhardwaj, learned counsel for the respondents supported the orders passed by Court below and relied on following judgments:-

(I) Modula India Vs. Kamakshya Singh Deo,

(II) Mohd. Mahmood Hussain Vs. Asad Ulla Usmani, ; and

(III) Manorama Devi and Others Vs. Suresh Narain and Others,

I have heard learned counsel for the parties and perused the record.

The pivotal question involved in this matter is whether the Court below was right in rejecting the application preferred by the petitioner under Order 8 Rule 1(3) of CPC on the pretext that the defence of the petitioner was already struck off on 18-08-2011 ?

It is apt to trace the legal history on this aspect.

(I) A Division Bench of this Court in Premdas (supra) opined that it is true that when a party''s defence on eviction matter is struck out, then he cannot have an opportunity to cross-examine the plaintiff''s witnesses and address the Court in regard to that matter. A suit may be defended not only by filing a written statement but also by able and successful cross-examination of plaintiff''s witnesses and arguments.

(II) In Modula India (supra), the Apex Court while dealing with an analogous provision under W.B. Premises Tenancy Act (12 of 1956), opined as under:-

Even in a case where the defence against delivery of possession of a tenant is struck off under S. 17(3) the defendant tenant, 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. However, when the defendant is afforded the aforesaid right he 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 weakness of the plaintiff''s case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and 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.

In the said judgment, it is again held as under:-

Looked at from this point of view the view can be taken that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court 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.

(III) The Judgment of Modula India (supra) was considered by this Court in the case of Laxminarayan (supra). This Court opined that true import of Section 13(4)(6) of the Act which contains expression "defence against eviction" only means defence against eviction resting on Section 12 and nothing more. In the case involving question of rate and quantum of rent, tenant can adduce evidence to rebut the case of plaintiff.

(IV) Pausing for a moment, this judgment has no application in the facts and circumstances of the present case. The question of rate and quantum of rent is not involved in the present matter.

(V) In any case, this point was again considered in Mohd. Mahmood Hussain (supra). This Court opined that the consequences of striking out of defence are as under:-

(i) Written statement has to be overlooked;

(ii) Tenant cannot cross examine the witnesses on the parts struck off from the written statement;

(iii) Defendant can cross examine to a limited extent;

(iv) Tenant can put forth argument.

(VI) In Mohd. Mahmood Hussain (supra), this Court considered the judgment of Modula India (supra) and other judgments on the point and then gave aforesaid opinion.

(VII) In Sabiha Masood (supra) this Court opined that even if the right of defence is struck out, the defence available to the tenant under the common/general law would be applicable. It is noteworthy that the law laid down by Supreme Court in Modula India (supra) or other judgments on this subject cited above, were not taken into account by this Court. In other words, in Sabiha Masood (supra) the legal position is not discussed. Needless to mention that the judgment in Modula India (supra) is binding on this Court and no reasoning which runs contrary to the finding of Supreme Court, can be accepted.

(VIII) In Manorama Devi (supra), this Court again opined that if the defence is struck off, tenant is precluded from leading evidence on the issues covering the grounds u/s 12 (1) of the Act.

In view of the aforesaid legal position, the question needs to be determined as to whether the Court below has rightly rejected the application of the petitioner preferred under Order 8 Rule 1(3) CPC. As held in Modula India (supra) followed by this Court, it is clear that the petitioner has a limited right to cross-examine the plaintiff''s witnesses and to establish that they are not speaking truth. In Mohd. Mahmood Hussain (supra) this Court held that written statements needs to be overlooked. Tenant cannot cross-examine the witnesses on the parts struck off from the written statement. Defendant can cross examine to a limited extent described in the judgment. However, tenant can put forth the arguments. This well-settled judgment of this Court is based on the judgment of Modula India (supra).

I am in complete agreement with the view expressed in Mohd. Mahmood Hussain (supra). The petitioner while filing an application under Order 8 Rule 1(3) CPC, made effort to put forth his defence in indirect manner. This is settled in law that a thing which cannot be permitted to be done directly, cannot also be permitted to be done indirectly. If the defence is struck off and written statement cannot be considered, the defence cannot also be permitted to put forth by way of other methods, including by filing an application under Order 8 Rule 1(3) CPC. The petitioner may have limited right to participate in the proceedings as held in Modula India (supra) and followed in Mohd. Mahmood Hussain (supra).

The scope of interference under Article 227 of the Constitution is well defined. If the order of Court below suffers from any jurisdictional error, suffers from manifest procedural irregularity or impropriety or pregnant with palpable perversity, interference can be made. Another view is possible, is not a ground to interfere in this jurisdiction. Consequently, the basic test is whether the petitioner''s case contains aforesaid ingredients, in my opinion, there is no jurisdictional error pointed out by the petitioner and the orders do not suffer from any procedural impropriety, irregularity or perversity. The Court below has taken a plausible view based on the judgment of Supreme Court in Modula India (supra) followed by judgment of Mohd. Mahmood Hussain (supra). Accordingly, I find no reason to interfere in this writ petition. The petition is bereft of merits and is hereby dismissed. No costs.