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PETITIONER: MODULA INDIA

       Vs.

RESPONDENT: KAMAKSHYA SINGH DEO

DATE OF JUDGMENT27/09/1988

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. MUKHARJI, SABYASACHI (J)

CITATION:  1989 AIR  162            1988 SCR  Supl. (3) 333  1988 SCC  (4) 619        JT 1988 (4)   214  1988 SCALE  (2)1163

ACT:      West  Bengal Premises Tenancy Act,  1956-Section  17(3) of--Nature and scope of rights of defendant whose defence is struck out in a suit for possession.

HEADNOTE:      The  respondent  flied a suit in the High Court  for  a decree  directing  the  defendant  (appellant)  to   deliver possession  of certain premises. The appellant-tenant  filed its  written  statement. During the pendency  of  the  suit, orders were passed directing the appellant tenant to deposit certain  sums in Court. The tenant made an  application  for permission  to  deposit  the  arrears  of  rent  in  monthly instalments  alongwith  the current rents.  No  orders  were passed on this application on the ground of its being out of time.  Subsequent to the disposal of this  application,  the defence of the tenant was struck out under section 17 of the Act. The tenant/appellant moved this Court.      Allowing the appeal, the Court,      HELD:  A  provision as in s. 17(4) is  a  provision  in terrorem,  The  Court will act  with  circumspection  before striking  out the defence of a tenant under this  provision. This Court has interpreted provisions like this in rent acts to  say that striking out defence is not obligatory  on  the Court  merely  because there is a default and that it  is  a matter  for  exercise of great restraint. But  it  does  not necessarily follow that once the defence is struck off,  the defendant is completely helpless and his conduct of the case should  be  so crippled as to render a  decree  against  him inevitable.  To  hold  so  would  be  to  impose  on  him  a punishment disproportionate to his default. [356B-D]      Provisions  of this type should be  construed  strictly and  the  disabilities  of a person  in  default  should  be limited   to   the  minimum  extent  consistent   with   the requirements  of justice. This should be all the more so  in the  context  of tenancy legislation, the  main  purpose  of which  is  to  confer  protection  on  the  tenants  against eviction   by   the  landlord,  unless   certain   statutory conditions are fulfilled. The provisions should not be given any  wider  wider operation than could  have  been  strictly intended by the legislature. [356E-F]

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                                                 PG NO 333                                                   PG NO 334      In truth and substance, the plea regarding the validity of  the  notice  has invariably to be taken  as  a  plea  in defence  in such suits. The rule is really an  exception  to the strict application of a rule that a tenant whose defence is  struck  out cannot be heard at-all against the  plea  of ejectment. [356H; 357A]      Full  effect should be given to the words that  defence against ejectment is struck off. But while it is true  that, in a broad sense, the right of defence takes in all  aspects including  the  demolition of the  plaintiff’s   case  by cross-examination  of his witnesses, it is  equally  correct that  the  cross-examination of  the  plaintiff’s  witnesses really  constitutes  a finishing touch which  completes  the plaintiff’s  case. No oral testimony can be      considered satisfactory  or  valid  unless  it  is  tested  by   cross- examination. Mere statement of plaintiff’s witnesses  cannot constitute plaintiff’s evidence unless it is tested by cross examination.   The  right  of  defence   to    cross-examine plaintiff’s  witnesses can 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. Thus it should be possible to take the view that though  the defence of the tenant has been struck out, there is  nothing in   law  to  preclude  him  from  demonstrating  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. [357B-D]      The  basic  principle that where a plaintiff  comes  to court  he  must prove his case should not be  whittled  down even in a case where no defendant appears. [357E]      The  defendant  should be allowed his right  of  cross- examination  and arguments. This right should be subject  to certain important safeguards. [357H; 358A]      First. the defendant cannot be allowed to lead his  own evidence. [358A]      Secondly,  if  cross-examination is  permitted  of  the plaintiff’s  witnesses  by the defendant  whose  defence  is struck off, procedural chaos may result unless great care is exercised  and  it may be very diffcult to keep  the  cross- examination  within  limits.  But this is  a  difficulty  of procedure rather than substance. It is a matter to be sorted out  in practical application rather than by laying  down  a hard and fast rule of exclusion. [358B-D]      Thirdly, 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.  The                                                   PG NO 335 Court  should ensure that by permitting the defendant  at  a later  stage  either  to  cross-examine  the  witnesses   or participate in the proceeding, the plaintiff is not taken by surprise  or gravely prejudiced; there is a wide  discretion with the court and it is open to the court where it believes that  the  plaintiff  has  been  misled,  to  exercise   its discretion  to shut out cross-examination or regulate it  in such manner as to avoid any real prejudice to the  interests of plaintiff. [358E; F-G]      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 to (a)  cross- examine the plaintiff’s witnesses, and (b) address  argument on  the basis of the plaintiff’s case. The  defendant  would

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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  plaintiff’s case. In no  circumstances  should  the cross-examination  be permitted 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. [359G-H; 360B-C]      K.K. Chari v. R.H. Seshadri, AIR 1973 3 SCR 691;  Inder Mohan Lal v. Ramesh Khanna, AIR 1987 SC 1986; Sangram  Singh v.  Election Tribunal, Kotah, Bhuray Lal Bava, [1955] 2  SCR 1;  M/s.  Paradise Industrial Corpn. v. M/s.  Kiln  Plastics Products,  [1976]  1  SCC 91;  M/s.  Babbar  Sewing  Machine Company v. Trilok Nath Mahajan, [1978] 4 SCC. 198; Ram Chand v.  Delhi Cloth & General Mills Co. Ltd., [1978] 1 SCR  241; Shyamcharan  Sharma  v. Dharamdass, [1980] 2  SCR  334;  Ram Murti  v. Bhola Nath, [1984] 3 SCC 111; Bela Das &  Ors.  v. Samarendra  Nath Bose, [1975] 2 SCR 1004; S.N.  Banerjee  v. H.S.  Suhrawardy, AIR 1928 Cal. 772; Dabendra Nath  Dutt  v. Smt. Satyabala Dassi & Ors., AIR 1950 Cal. 217; S.B. Trading Company  Ltd.  v.  Olympic Trading  Corpn.  Ltd.,  AIR  1952 Calcutta 685; Gellatty v. Cannon, AIR 1953 Cal. 409; Gurudas Biswas  v. Charu Panna Seal, AIR 1977 Cal. 110;  Daya  Moyee Sadhukhan  v. Dal Singer Singh, AIR 1979 Cal.  332;  Sangram Singh  v. Election Tribunal, AIR 1955 SC 425 and Ganesh  Ram v.  Smt.  Ram Lakhan Devi, [1981] 1 All India  Rent  Control Journal 681, referred to.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 173  of 1983.                                                   PG NO 336      From  the  Judgment and Order dated  30.9.1982  of  the Calcutta High Court in Suit No. 568 of 1979.      Ajay  Nath Ray, Surendra Dube and Mrs.  Indira  Sawhney for the Appellant.      S.K. Kapur, Ranjan Deb, Gangadeb and B.P. Singh for the Respondent.      The Judgment of the Court was delivered by      RANGANATHAN, J. A somewhat important question as to the nature  and  scope of the rights available  to  a  defendant whose "defence has been struck out" calls for  determination in this appeal in the particular context of the West  Bengal Premises  Tenancy  Act,  1956. The appeal  arises  from  the judgment  of  a  Full  Bench  of  the  Calcutta  High  Court constituted  to resolve a conflict in the earlier  decisions of  the  same  court on this issue. The  Full  Bench,  by  a majority of two (P.K. Banerjee and Chittatosh Mookerjee, JJ) to one (Ramendra Mohan Datta, Acting C.J.) decided that in a matter where the defence against delivery of possession  has been  struck  out under sub-section 3 of section 17  of  the West   Bengal  Premises  Tenancy  Act,  1956,   (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,

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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 and peaceful possession  of certain premises in Calcutta and also for a decree for mesne profits  or damages from February 1, 1978 till the  date  of                                                   PG NO 337 delivery of possession. The appellant, a company carrying on business  at  the premises in question,  filed  its  written statement denying the averments in the plaint and the claims made  therein.  During  the pendency  of  the  suit  several interlocutory  applications were made from time to  time  in which  orders  were passed directing the  present  appellant (hereinafter  referred to as the tenant) to deposit  certain sums in court. At one stage it appears that the tenant  made an  application praying that he may be permitted to  deposit the  arrears of rent in monthly instalments along  with  the current rents. No orders were passed on this application  on the ground that the application was out of time. However, it appears that subsequent to disposal of this application, the defence  of  the  tenant  had  been  struck  off  under  the provisions  of section 17(3) of the Act. The correctness  of this order striking out the defence of the tenant has become final  and is no longer in issue. It, however, appears  that the  tenant  contended before the trial  court  (though  the details  are not available on record) that the  order  under section 17(3) could, at worst, preclude the tenant only from adducing  evidence, oral or documentary, in support  of  the averments made in its written statement. It was claimed that it was open to the tenant to exercise his rights--      (a) of cross-examining the plaintiff’s witnesses;      (b) of pointing out to the court the factual and  legal infirmities in the plaintiff’s case; and      (c) of addressing arguments on the basis of evidence as adduced by the plaintiff and tested by the cross-examination on behalf of the defendant.      Learned counsel for the appellant also urged before  us that though the defendant had conceded before the High Court that  it  will  not be entitled to lead  any  evidence,  the reference   being  of  a  general  question  regarding   the consequences  of  a  strike  off,  we  should  consider  the question  in  all its aspects and lay  down  the  principles governing such cases.      We may start by referring to the provisions of  section 17  of the Act. When a suit for eviction is filed under  the Act  agianst any tenant on any of the grounds  specified  in Section  13 of the Act, Section 17(1) imposes an  obligation on  the  tenant  to  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                                                   PG NO 338 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.

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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)  of sub-section  (2A) within the time fixed therefor, the  Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit."                                         (underlining ours)      Before  discussing  the interpretation of  the  crucial words  of  the  sub-section, it may be  useful  to  set  out certain analogous provisions which have been the subject  of judicial consideration:      (a)  The West Bengal Act XVII of 1950,  which  preceded the  one under consideration, was somewhat different in  its language.  S. 14(1) of that Act dealt with a case where  the suit  was  based on the ground of non-payment of  rent.  The Court could make an order calling upon the tenant to pay  up the  arrears  of  rent on or before a  specified  date.  The sequitir was set out in sub-sections (3) and (4) as follows:      "(3)  If within the time fixed in the order under  sub- section  (1),  the  tenant deposits in  the  court  the  sum specified  in  the said order, the suit, so far as it  is  a suit  for recovery of possession of the premises,  shall  be dismissed by the court. In default of such payment the court shall proceed with the hearing of the suit:      Provided  that the tenant shall not be entitled to  the benefit of protection against eviction under this section if                                                   PG NO 339 he  makes  default  in payment of the rent  referred  to  in clause (i) of the proviso to sub-section 1 of section 12  on three occasions within a period of eighteen months."      "(4) If the tenant contests the suit, as regards  claim for   ejectment,   the  plaintiff-landlord   may   make   an application  at  any  stage of the suit  for  order  on  the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties  to be heard may make an order for deposit of rent at such  rate month  by  month  and the arrears of rent, if  any,  and  on failure of the tenant to deposit the arrears of rent  within fifteen  days of the date of the order or the rent  at  such rate  for  any  month  by the  fifteenth  day  of  the  next following  month, the court shall order the defence  against ejectment  to be struck out and the tenant to be  placed  in the  same  position as if he had not defended the  claim  to ejectment.  The  landlord may also apply for  permission  to withdraw  the deposited rent without prejudice to his  right to  claim decree for ejectment and the court may permit  him 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

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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.                                                   PG NO 340      (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  discovery--Where any  party  fails  to  comply  with  any  order  to   answer interrogatories,   or   for  discovery  or   inspection   of documents,  he shall, if a plaintiff, be liable to have  his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the  same position as if he had not defended, and the  party interrogating  or seeking discovery or inspection may  apply to  the Court for an order to that effect, and an order  may be made on such application accordingly, after notice to the parties after giving them a reasonable opportunity of  being heard.      (2)   Where  an  order  is  made  under  sub-rule   (1) dismissing any suit, the plaintiff, shall be precluded  from bringing a fresh suit on the same cause of action.      On behalf of the appellant learned counsel submits that a  tenant or defendant whose "defence is struck out"  is  in the same position as if he had filed no written statement in the suit. It is pointed out that the Original Side Rules  of the Calcutta High Court permit a defendant who is said to be ex  parte,  either by not filing a written statement  or  by non-appearance,  to cross-examine the plaintiff’s  witnesses and to address the court; not only that, the rules confer  a discretion in the court to permit him to have the assistance of  an advocate and even to adduce evidence on  his  behalf. This  is based on the principle that the effect of an  order striking  out  the defence can only be  that  the  defendant should  not, because of his default, be permitted  to  plead the positive case, which he had or could have put forward in his written statement or substantiate it by leading evidence on  his side. This cannot preclude him from putting  forward the  plea that the plaintiff is not entitled to a decree  as he has not proved his case. This, it is said, he is entitled to  do either by cross examining the  plaintiff’s  witnesses and  thus  demolishing the plaintiff’s  case  or  addressing arguments  either on points of law or even on the  facts  in the  light  of the plaintiff’s evidence as tested  by  his cross-examination.  Even  this cannot, it is  urged,  be  an invariable   rule  and  the  Court  should  always  have   a discretion,  as  provided  for in the  Calcutta  High  Court Rules,   to   relax   its  rigidity   depending   upon   the circumstances  of  each case. The position  in  an  eviction Petition,  it  is said, cannot be  much  different.  Learned counsel   urges  that  is  a  well  established   principle,                                                   PG NO 341 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

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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   a defendant who had been set ex parte at some of the  hearings (after  the first hearing) could be permitted to appear  and take  part  in later hearings, without the  ex  parte  order being set aside. The Court, after referring the terms of the Order  XVII Rule 2 of the Code of Civil Procedure,  observed thus:      "The learned Judges who constituted a Full Bench of the Lucknow  Chief Court (Tulsha Devi v. Sri Krishna,  AIR  1949 Oudh 50) thought that if the original ex parte order did not ensure throughout all future hearings it would be  necessary to  make a fresh ex parte order at each succeeding  hearing. But  this  proceeds on the mistaken assumption  that  an  ex parte order is required. The order sheet, or minutes of  the proceedings,  has to show which of the parties were  present and  if  a party is absent the Court records that  fact  and then  records whether it will proceed ex parte against  him, that  is to say, proceed in his absence, or whether it  will adjourn  the  hearing; and it must necessarily  record  this fact  at every subsequent hearing because it has  to  record the  presence  and absence of the parties at  each  hearing. With  all due deference to the learned Judges who hold  this view, we do not think this is a grave or a sound objection.      A  much weightier consideration is that  the  plaintiff may  be gravely prejudiced in a given case because,  as  the                                                   PG NO 342 learned  Rajasthan Judges point out, and as  O’Sullivan,  J. thought,  when a case proceeds ex parte the  plaintiff  does not adduce as much evidence as he would have if it had  been contested.  He contents himself with leading just enough  to establish  a prima facie case. Therefore, if he is  suddenly confronted  with a contest after he has closed his case  and the  defendant then comes forward with an army of  witnesses he  would be taken by surprise and gravely prejudiced.  That objection  is,  however, easily met by the  wide  discretion that  is  vested in the Court. If it has reason  to  believe that  the defendant has by his conduct misled the  plaintiff into  doing  what these learned Judges  apprehend,  then  it might  be a sound exercise of discretion to shut out  cross- examination and the adduction of evidence on the defendant’s part  and  to  allow him only to argue  at  the  stage  when arguments are heard. On the other hand, cases may occur when the plaintiff is not, and ought not to be, misled. If  these considerations are to weigh, then surely the 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

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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, authorise the Court to strike off the defence  straightaway. Reversing  this  order  of  the  leared  Judge,  this  Court observed:      "We are afraid the learned Judge of the High Court  has missed  the  substance  and chased  the  shadow.  The  words "striking  out  the  defence"  are  very  commonly  used  by                                                   PG NO 343 lawyers. Indeed the application made on February 24, 1969 by the plaintiffs was for a direction to order the defences  of the defendants to be struck off in default of payment of the amount ordered by the Court. The phrase "defence struck off’ or "defence struck out" is not unknown in the sphere of law. Indeed  it finds a place in Order XI Rule 21 of the Code  of Civil Procedure ....... In effect; both mean the same thing. Nobody could have misunderstood what was meant.      Indeed,  one may even say that the phrase "the  defence to be struck off" or "struck out" is more advantageous  from the point of view of the defendants. Even when a defence  is struck  off  the  defendant is entitled  to  appear,  cross- examine  the plaintiff’s witnesses and submit that  even  on the  basis  of  the evidence on behalf of  the  plaintiff  a decree  cannot  be  passed against him,  whereas  if  it  is ordered  in accordance with Section 11(4) that he shall  not be entitled to appear in or defend the suit except with  the leave  of the court he is placed at a greater  disadvantage. The  use of the words ’defence struck off’ does not  in  any way affect the substance of the order and the learned  Judge of  the  High  Court was wholly in  error  in  holding  that because of the form of the order passed on June 2, 1969  the order  was  illegal  and  without  jurisdiction.  The  order squarely   falls   within  Section  11(4).  What   the   law contemplates  is not adoption or use of a formula; it  looks at  the  substance. The order is not therefore  one  without jurisdiction.  It  is one which the Judge was  competent  to make.      Somewhat similar in nature are the observations made in M/s.  Babbar Sewing Machine Company v. Trilok Nath  Mahajan, [1978]  4  S.C.C. 188 while dealing with the  provisions  of Order  XI  Rule 21 of the C.P.C. The court  was  of  opinion that, for the nature of the default in the said case it  was a  travesty  of  justice that the trial  court  should  have passed  an order striking out the defence of  the  defendant and the High Court should have declined to set it aside.  In this context, after discussing the scope of Order XI Rule 21 as to the 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                                                   PG NO 344 Order  XI,  Rule 21’ the defendant has no  right  to  cross- examine  the plaintiff’s witnesses. A perusal of  Order  XI,

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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  plaintiff’s  suit.  Every Judge in dealing with an ex parte case has to take care that the plaintiff’s case is, at least, prima facie proved.  But, as  we  set  aside the order under Order XI  Rule  21,  this contention  does  not  survive for  our  consideration.  We, therefore,  refrain  from  expressing  any  opinion  on  the question."      Our  attention has also been invited to the  incidental references  by this Court to the aspect presently  in  issue before us while considering the questions, in the context of analogous provisions of the rent statutes, whether the Court has  a discretion to extend the time for the deposits to  be made  by  the  tenant when there is  no  specific  statutory provision to that effect and whether, where the tenant fails to  make  the  deposit as directed, the Court  is  bound  to strike out his defence or has a discretion to take or not to take  this  extreme  step. In Ram Chand  v.  Delhi  Cloth  & General Mills Co. Ltd., [1978] 1 SCR 241, this Court, on the language  of  the Delhi Rent Control Act agreeing  with  the High  court ILR 1972--2 Delhi 503--on this point  held  that the  Rent  Controller has no power to condone  the  tenant’s default  by  extending  the time for  payment.  This  Court, however,  did not agree with the High Court’s view that  the default  of the tenant vested an indefeasible right  in  the landlord   and  entitled  him  to  an  order   of   eviction straightaway. The Court observed:      "While  we agree with the view of the High  Court  that the  controller has no power to condone the failure  of  the tenant to pay arrears of rent as required under s. 15(1), we                                                   PG NO 345 are  satisfied  that the Full Bench fell into  an  error  in holding  that the right to obtain an order for  recovery  of possession  accrued  to  the landlord. As we  have  set  out earlier,  in the event of the tenant filing to  comply  with the  order under s. 15(1), the application will have  to  be heard giving an opportunity to the tenant if his defence  is not  struck out under section 15(7) and without hearing  the tenant if his defence is struck out."                               (emphasis added)      Shyamcharan Sharma v. Dharamdass, [1980] 2 SCR 334  was a  case under the Madhya Pradesh Accommodation Control  Act. The tenant had not been able to deposit the rents as per the directions  of  Court and sought an extension of  time.  The landlord opposed the application for condonation of delay on the  ground  that the Court had no power to grant  it.  This contention  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

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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.  S.  13(6)  does not clothe  the  landlord  with  an automatic right to a decree for eviction, nor does it  visit the  tenant with the penalty of a decree for eviction  being straightaway  passed  against him. S. 13(6)  vests,  in  the court,  the  discretion  to order the striking  out  of  the defence against eviction. In other words, the Court,  having regard to all the cir-cumstances of the case, may or may not                                                   PG NO 346 strike  out  the defence. If s. 13 were to be  construed  as mandatory  and not as vesting a discretion in the Court,  it might  result  in  the  situation  that  a  tenant  who  has deposited the arrears of rent within the time stipulated  by s.  13(1)  but who fails to deposit thereafter  the  monthly rent on a single occasion for a cause beyond his control may have  his  defence  struck  out and  be  liable  to  summary eviction.  We  think  that s. 13  quite  clearly  confers  a discretion,  on the court, to strike out not to  strike  out the  defence,  if default is made in deposit or  payment  of rent  as  required  by  s.  13(1).  If  the  Court  has  the discretion  not  to  strike  out the  defence  of  a  tenant committing  default in payment or deposit as required by  s. 13(1),  the  court  surely has  the  further  discretion  to condone  the  default  and extend the time  for  payment  or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence."      The  apparent conflict between these cases camp up  for consideration in Ram Murti v. Bhola Nath, [1984] 3 SCC  111. After  considering  the  two earlier  decisions,  the  Court observed:      "It  would  be  incongruous to hold that  even  if  the defence of the tenant is not to be struck out under  Section 15(7), the tenant must still be visited with the  punishment of being deprived of the protection under Section 14(2).  In Hem Chand’s case the Court went to the extent of laying down that  even if the defence of the tenant is struck out  under Section  l5(7), the Rent Controller could  not  straightaway make  an order for eviction in favour of the landlord  under Section  14(1)(a).  The Court held that the High  Court  was wrong  in  its assumption that failure to  comply  with  the requirements  of  section  15(1) vests in  the  landlord  an ’indefeasible right’ to secure an order for the eviction  of the  tenant under Section 14(1)(a). The Court set aside  the judgment of the High Court taking that view and remanded the matters  to  the Rent Controller observing  that  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

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                                                 PG NO 347 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 circumstances beyond  his control.   The  previous  decision  in  Hem   Chand’s   case interpreting Section 15(7) and Section 14(2) in the  context of  Section  15(7)  of the Delhi  Rent  Control  Act,  1958, although  not  expressly overruled, cannot  stand  with  the subsequent  decision  in Shyamcharan case  interpreting  the analogous  provisions  of the Madhya  Pradesh  Accommodation Control Act, 1961 as it is of a larger Bench."                          ( Underlining ours)      One  more decision of this Court to which  counsel  for the respondents referred may also be touched upon here, viz. Bela Das and others v. Samarendra Nath Bose, [1975] 2 S.C.R. 1004. In that case, the respondent was a tenant of a certain premises  in respect of which a suit for eviction  had  been filed. The tenant was directed to pay into court the arrears and future rent but he did not comply with the order and his defence  was struck out. Thereafter, an ex-parte  decree  of eviction  was  passed and confirmed by the  first  appellate court. In second appeal, the High Court remitted the case to the trial court on the ground that, since the respondent had not  admitted  the  appellants  to be  full  owners  of  the premises   but  contended  that  other  co-sharers  of   the appellant’s  family  had also shares therein,  there  was  a denial  of the relationship of landlord and tenant and  that the  order striking out the respondent’s defence qua  tenant did not prevent him from contesting the suit on the question of  title.  The appeal against the High  Court’s  order  was allowed by this Court. The Court observed:      "The  defendant  had admitted that he  was  the  tenant under  the  plaintiffs but was merely asserting  that  there were some more landlords of the premises in question. It was                                                   PG NO 348 not a case of denial of relationship of landlord and  tenant between  the parties. In the case of Mahabir Ram,  AIR  1968 Patna 415, the tenant had denied the title of the plaintiffs and set up a title in himself. In the instant case the  plea of  the  defendant  has  been  that  the  plaintiffs   being landlords  of the suit premises for a moiety of share  could not  alone claim a decree for eviction against him.  Such  a plea  set  up   by the defendant to resist  the  suit  for eviction  was  a  plea qua tenant and not de  hors  it.  The striking  out of the defence on 8.7.1964 had the  effect  of striking out all defence raised by the defendant qua  tenant including  his defence that the plaintiffs alone  being  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

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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 reference to the Full Bench. The first two cases were  under the original side rules and concerned the consequences of  a defendant  failing to enter appearance in a suit. In a  very early decision in S.N. Banerjee v. H.S. Suhrawardy, AIR 1928 Cal.  772  Rankin,  C.J. had observed, of the  rights  of  a defendant who had not entered appearance, as follows:      "If  he  does  not enter  appearance  within  the  time limited  the case will go into what is called the undefended list  and when the case is on the undefended list it is  not possible for the defendant without obtaining leave to  enter                                                   PG NO 349 appearance.   He  has  a  limited  right  to   cross-examine witnesses  adduced on behalf of the plaintiff if he  appears at  the time when the undefended case is down  for  hearing, out  his  position  is that of a man who  for  not  entering appearance  in  time is precluded from  defending  the  suit whether he appears at the hearing or does not appear at  the hearing."      Referring  to these observations in Dabendra Nath  Dutt v. Smt. Satyabala Dassi and others, AIR 1950 Cal. 217,  P.B. Mukharji, J. said:      "Thus  then there are two consequences of not  entering appearance  under the Rules. One is that the suit is  liable to  be  heard  ex parte and the other  is  that  no  written statement  can be filed. In that context, I am not  inclined to  impose  more  punishment than those  two  so  explicitly stated  by the Rules. Therefore I am of the opinion  that  a party  subject to these handicaps imposed by the  Rules  can still  appear, under the Civil Procedure Code when the  suit is called on for hearing from the undefended list, not  only to cross-examine the witnesses of the plaintiff and demolish in  such  manner the plaintiffs case on  evidence  that  the Court will not pass any decree in the plaintiff’s favour but also  to make such arguments and submissions on law  and  on such  evidence  as  the plaintiff may have  brought  to  the Court.  These are, in my opinion, valuable rights under  the Code  which are not taken away by any Rules of the  original side.  If  that be so I fail to see why in such a  case  the terms  of  0.9  Rr.  8 and 9 of  the  Code  cannot  be  made applicable   to   the   original   side   of   this    Court notwithstanding the technicalities of "entering  appearance" as introduced by the Rules of the original side practice. It may  be  that  when  because of  the  default  in  "entering appearance"  the  suit is liable to be heard ex  parte,  the defendant may not know 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

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possibility  of  cross-examination  in such a  case  by  the defendant of plaintiff’s witnesses.                                                   PG NO 350      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(4).  When the plaintiff proceeded to prove its claim  for ejectment  the  defendants  claimed  to  take  part  in  the proceedings to oppose the decree for ejectment. In the first place, they claimed that they were entitled to cross-examine the  plantiff’s  witnesses and to address the court  not  as counsel  but as agents of their clients. The  learned  Judge declined  the  request. He referred to the  observations  of P.B. Mukharji J. quoted earlier, that their rights were only aspects of the rights of defence and observed:      "It seems to me that if I allow the defendants in  this case  to  cross-examine the plaintiff’s witnesses  on  their evidence as to the facts establishing the claim to ejectment and  to  address the Court with regard to that claim,  I  am really  allowing the defendants to defend the claim  against ejectment.  Section  14(4)  says that  this  the  defendants cannot do."      The next question that arose was whether it was open to the  defendants  to contest the plaintiff’s claim  that  the defendant was not entitled to the benefit of the proviso  to section 14(3). The learned Judge also negatived this  right. He observed:      "It  would be a curious result and really would  amount to   annulling the provisions of sub-section 4, if in  spite of  the defence being struck out, the defendants were  in  a position to contest the applicability of the proviso. In  my view,  this  latter  argument of  learned  counsel  for  the plaintiff is plainly sound. The proviso itself says that  on certain  things happening "the tenant shall not be  entitled to  the  benefit of protection against eviction  under  this section."So,  the proviso really contemplates a  defence  to the claim for ejectment, and if that defence is struck  out,                                                   PG NO 351 it  must necessarily mean that it is no longer open  to  the defendants to contest the existence of the facts giving rise to the applicability of the proviso. I, therefore, reach the conclusion  that the defendants will not be allowed to  take any  part in the proceedings for proof of the  applicability of the proviso."     The  effect of a strike off of defence was expressed  in even more forcible language by Chakravartti C.J. In Gellatly v. Gannon, AIR 1953 Cal 409. The learned Judge observed:     "The  language of s. 14(4) is in no way  qualified.  The policy of the section or, indeed, the whole Act seems to  be that  the Legislature is not minded to protect a tenant  who will not even pay the 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

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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 deprived  the tenant of the special protection given to  him under  section  13(1) of the Act but did  not  preclude  the necessity  of  the landlord having to prove the  service  of notice under section 13(6) of the Act which was a step to be taken  before  the filing of the suit. The  Court,  however, observed:     "To  pass an ex parte decree in a suit for ejectment  on or of the grounds in Section 13(1), the Court is required to decide,  whether  the  suit  is defended  or  not,  (if  the relation-ship of landlord and tenant is not disputed as here                                                   PG NO 352 (a)  whether  the tenancy has been validly determined  by  a notice  under  Section 106, Transfer of  Property  Act,  (b) whether  a valid notice of suit was given before filing  the suit  (c) whether the ground alleged in the plaint  to  take away  the tenant’s special protection conferred  by  Section 13(1),  has  been established on the evidence. This  is  the requirement  of  Order  20, Rule 4,  Civil  Procedure  Code, whether  the  suit  is contested or not.  The  Court  cannot relieve itself of the necessity of complying with Order  to, Rule  4 even if it strikes out the tenant s defence  against delivery of possession or the written statement. That  being the  position in law, it would be wrong, not to  permit  the tenant  to  contend  and show, if  possible,  on  plaintiffs evidence and materials as are on record, both at tile  trial and  also  at the appeal stage, that the  plaintiff  is  not entitled  to the decree prayed for, though he would  not  be permitted either to cross-examine plaintiffs witnesses, when they  give  evidence, or to call his own  witnesses  at  the trial, if his defence is struck out.’’     The above observations came up for consideration in Daya Moyee  Sadhukhan v. Dal Singer Singh, AIR 1979 Cal  332.  In this  case, on failure of the defendant to comply  with  the provisions of section l7(1) of the Act of 1956, his  defence had  been  struck off. Thereafter, at the   hearing  of  the suit,  the  defendant  was  allowed  to  cross-examine   the plaintiff s husband On all issues but the defendant examined himself  only on the question  whether notice to  quit  i1ad been served properly in terms of section 106 of the Transfer of  Property Act. The landlord- appellant argued before  the High  Court  that as the defence had been  struck  out,  the trial  court was not justified in allowing the defendant  to cross-examine  the  plaintiff s witness and, in  support  of this  contention reliance was 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

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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:                                                   PG NO 353     "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’s  witnesses  when  they  give  evidence.  In  the circumstances  we hold that in a case where the  defence  of the  defendant is struck out under the provision of  section 17(3)  of  the West Bengal Premises Tenancy Act,  1956,  the defendant will be entitled to cross-examine the  plaintiff’s witnesses on all the points. There can be no doubt that  his defence as to the service of the notice to quit and of  suit will  remain unaffected by the striking out of  his  defence against  delivery of possession and he will be  entitled  to adduce evidence in support of that defence. In other  words, the  defendant  will  be  entitled  to  participate  in  the proceedings and make his submissions against the plaintiff’s case  for  delivery of possession. The  learned  Judge  was, therefore,  justified  in allowing the defendant  to  cross- examine  the plaintiff’s witness and to adduce  evidence  by examining himself on the point of notice."     This is the background against which the issue has to be considered   by  us.  It  would  be  useful  for  a   proper appreciation  of  the  two  views  if,  at  this  stage,  we summarise  the  pros and cons of the situation.  The  points urged for the plaintiff are-- (a)  In a statute hedged in with all protection to a  tenant against eviction, one important safeguard to the landlord is in this provision which seeks to assure him at least of  the prompt payment of the rents lawfully due to him. The  tenant is compelled to pay up the rent on pain of losing his  right of  defence  against ejectment. This is  a  provision  which should  be strictly enforced and full effect given  to  this right of the landlord. (b)  Defence  being  struk  off does  not  merely  mean  the exclusion of the written statement or the positive case,  if any. which the defendant wishes to plead. It means also  the exclusion of all modes of his participation in the suit  qua the plea of ejectment. Cross examination of the  plaintiff’s witnesses  and  putting  forth  arguments  demolishing   the                                                   PG NO 354 plaintiff’s  case  are  as crucial and vital  parts  of  the defence  as  the  putting  in  of  a  written  statement  or examination of his own witnesses. (c)  In like situations any similar default on the  part  of the  plaintiff will spell the dismissal of his suit.  (Order 11 Rule 21 C.P.C.) On like analogy, the defendant in default should  be made liable for ex parte  eviction  straightaway. Restrictions  are  already  placed  on  this  right  of  the plaintiff 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

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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 Ganesh Ram  v.  Smt. Ram Lakhan Devi, [1981] 1 All India Rent Control Journal 681 also  has  taken  to  similar view  and  held  that  such  a defendant  cannot be allowed to lead evidence in support  of his pleas in defence. (f)  Under  Order 8 Rule 5 of the C.P.C., when there  is  no written  statement,  the averments in the plaint are  to  be taken as correct and, if they are sufficient under the terms of  the  statute,  a decree has to follow  as  a  matter  of course. On  the  other hand, the aspects stressed by  the  defendant are: (a)  The  expression "defence being  struck  out"  obviously relates to the consideration of a document being ruled  out.                                                   PG NO 355 It  suggests  that the intention is only  that  the  written statement  should  be  excluded  from  consideration.   Even treating  the expression as equivalent to a  direction  that the court should proceed as if the defendant had not entered appearance  at  all, the tenant’s position cannot  be  worse than that of a similarly placed defendant under the Original Side Rules of the Calcutta High Court or under the C.P.C. (b)  It  is well established that mere  absence  of  defence cannot make the plaintiff entitled to a decree straightaway. Defence  or  no  defence, the plaintiff in  a  suit  has  to satisfy  the court that he has a case which deserves  to  be decreed. In particular, in an eviction suit, under the  rent laws,  the  court  has to be satisfied  that  the  statutory conditions  justifying  eviction  are  fulfilled.  This  the plaintiff  can establish only by leading evidence  and  such evidence will not be worth anything unless tested by  cross- examination.   The  cross-examination  of  the   plaintiff’s witnesses  is more an integral part of the plaintiff’s  case than an aspect of defence. (c) The Calcutta High Court has uniformly held that, even in an undefended action, a challenge on ground of non-issue  or invalidity  of the notice under s. 13(6) would be  available to  the defendant. Though the notice has to be issued  prior to  the institution of a suit and, in this sense, is a  pre- condition  to  the  filing of the  suit,  the  non-issue  or invalidity  is just one of the pleas that can be  raised  in defence.  If a tenant whose defence is struck off can  raise that  plea, there is no reason why he should not be  allowed to  do  other  things  to show that  the  plaintiff  is  not entitled to a decree. (d)  The  observations  of  this  Court  in  Sangram  Singh, Paradise   Industrial  Corpn.  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.

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   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                                                   PG NO 356 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 the decisions earlier  referred  to, the court will act with great circumspection before striking out the defence of a tenant under this provision. This Court has  interpreted  provisions like this in rent acts  to  say that striking off of defence is not obligatory on the  court merely  because there is a default and that it is  a  matter for  exercise of great judicial restraint. But it  does  not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable.  To  hold  so  would  be  to  impose  on  him  a punishment disproportionate to his default. The observations made  by this Court, while discussing the provisions of  the Code of Civil Procedure, and the Original Side rules of  the Calcutta  High  Court which deal with some-  what  analogous situations,   cannot  be  lightly  brushed  aside.  I   hose decisions have enunciated a general equitable principle.  We are  also of   the same view that provisions  of  this  type should be construed strictly and that the disabilities of  a person  in default should he limited to the  minimum  extent consistent with the requirements of justice. This should  be all the more so in the context of a tenancy legislation. the main  object  of which is to confer  protection  on  tenants against  eviction by the landlord. unless certain  statutory conditions  are  fulfilled. I he provisions  should  not  be given  any  wider operation than could  have  been  strictly intended by the legislature.     It  has already been noticed that, in the Calcutta  High Court.  there  has been unanimity on the  point  that,  even where  defence  is struck out, the validity  of  the  notice under  s. 13(6) is challengeable. This has been the  settled view  of that court for several years now which it would  be inequitable to disturb after such a long time. This type  of cases,  however, has been sought to be distinguished on  the ground  that  such notice is a condition  precedent  to  the institution of the suit and cannot perhaps be described as a defence  to  the  suit.  This, however,  is  too  tenuous  a distinction. For, in truth and substance the plea  regarding the  validity of the notice has invariably to be taken as  a plea  in  defence  in such suits. The  rule,  therefore,  is                                                   PG NO 357 really  an   exception to the strict application of  a  rule that a tenant whose defence is struck off cannot be heard at all against 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

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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 possible  to take  the  view 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.     To  us it appears that the basic principle that where  a plaintiff  comes to the court he must prove his case  should not  be  whittled  down even in a case  where  no  defendant appears. It will at once be clear that to say that the Court can  only  do this by looking the plaintiff’s  evidence  and pleadings  supplemented by such questions as the  court  may consider  necessary and to completely eliminate any type  of assistance  from the defendant in this task will  place  the court  under  a great handicap in discovering the  truth  or otherwise of the plaintiff’s statements. For after all,  the court on its own motion, can do very little to ascertain the truth  or otherwise of the plaintiff’s averments and  it  is only the opposite party that will be more familiar with  the detailed facts of a particular case and that can assist  the court  in  pointing  out  defects,  weaknesses,  errors  and inconsistencies of the plaintiff’s case.     We,  therefore,  think  that  the  defendant  should  be allowed his right of cross-examination and arguments. But we are  equally  clear  that this right should  be  subject  to                                                   PG NO 358 certain important safeguards. The first of these is that the defendant  cannot be allowed to lead his own evidence.  None of  the  observations or decisions cited have  gone  to  the extent  of  suggesting that, inspite of the  fact  that  the defence  has  been  struck off,  the  defendant  can  adduce evidence of his own or try to substantiate his own case.     Secondly, there is force in the apprehension that if one permits  cross-examination of the plaintiff’s  witnesses  by the defendant whose defence is struck off, procedural  chaos may result unless great case is exercised and that it may be very  difficult  to keep the cross- examination  within  the limits of the principles discussed earlier. Under the  guise of   cross-examination  and  purported  demolition  of   the plaintiff’s  case, the defendant may attempt to put  forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may  derogate  from his own case and questions  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

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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 is not taken  by surprise or gravely prejudiced. This difficulty however  can be  easily  overcome in practice, because there  is  a  wide discretion  with  the  court and it is always  open  to  the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination  or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff.     An objection to our above conclusion has been raised  on the  basis  of the provisions of Order VIII of the  Code  of Civil  Procedure. Rules 1, 5 and 10 of this Order have  been                                                   PG NO 359 recently  amended  by  the Amendment Act of  1976.  We  find nothing  in  these rules which will support  the  contention urged  on behalf of the respondents. Rule 1 merely  requires that the defendant should present a written statement of his defence  within the time permitted by the court. Under  rule 5(2), where the defendant has not filed a pleading it  shall be  lawful for the court to pronounce judgment on the  basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any  such  fact to be proved. Again under rule 10  when  any party  from  whom a written statement is required  fails  to present  the same within the time permitted or fixed by  the court,  the court "shall pronounce judgment against  him  or make  such order in relation to the suit as it thinks  fit." It  will  be seen that these rules are  only  permissive  in nature.  They  enable the court in an  appropriate  case  to pronounce  a decree straightaway on the basis of the  plaint and  the  averments contained therein.  Though  the  present language  of rule 10 says that the court  "shall"  pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either  to pronounce judgment on the basis of the plaint   against  the defendant  or  to make such other appropriate order  as  the court  may think fit. Therefore, there is nothing  in  these rules,  which  makes it mandatory for the court  to  pass  a decree  in  favour of the plaintiff straightaway  because  a written  statement  has not been filed. Reference  was  made before  us to sub-rule 1 of rule 5. This sub-rule,  however, has application only in a case where a pleading is filed but does  not  contain  a specific or  implicit  denial  of  the averments contained in the plaint or other document to which it  is a reply. 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

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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:                                                   PG NO 360 (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 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  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.     For  reasons  mentioned above, we allow the  appeal  and restore the suit before the trial Judge for being  proceeded with  in the light of the above conclusions. We direct  that the costs of this appeal will form part of the costs in  the suit and will abide by the result thereof. S.L.    Appeal allowed.