# MODULA INDIA v. KAMAKSHYA SINGH DEO

- **Citation:** [1988] Supp. 3 S.C.R. 333
- **Court:** Supreme Court of India
- **Decided:** 1988-09-27
- **Bench:** Sabyasachi Mukharji Ands. Ranganathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/modula-india-v-kamakshya-singh-deo-10080
- **Pages:** 28

## Headnote

B
West Bengal Premises Tenancy Act, 1956-Section 17(3) ofNature and scope of rights of defendant whose defence is struck out in a
suit for possession.
The respondent filed a suit in the High Court for a decree directC
ing 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 D
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· shouid 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 limikd 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 operation than could have been strictly intended by the
legislature. [356E-F]
333
E
F
G
H
334
SUPREME COURT REPORTS
[ 1988] Supp. 3 S.C.R.
In truth and substance, the plea regarding the validity of the
A 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; 357 Al
B
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
C considered satisfactory or valid unless it is tested by cross-examination.
Mere slatement 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
D 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 theplaintilfisnotsuftident to ful6I thetennsofthestatote. [357B-D)
The basic principle that where a plaintiff comes to court he must
E prove his case should not be whittled down even in a case where no
defendant appears. [357E]
F
The defendant should be allowed his right of cross-examination
and arguments. This ri~ht should be subject to certain important
safeguards. [357H; 358A]
First, the defendant cannot be allowed to lead his own evidence

## Text

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MODULA INDIA
A
v.
KAMAKSHYA SINGH DEO
SEPTEMBER 27, 1988
[SABYASACHI MUKHARJI ANDS. RANGANATHAN, JJ.]
B
West Bengal Premises Tenancy Act, 1956-Section 17(3) ofNature and scope of rights of defendant whose defence is struck out in a
suit for possession.
The respondent filed a suit in the High Court for a decree directC
ing 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 D
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· shouid 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 limikd 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 operation than could have been strictly intended by the
legislature. [356E-F]
333
E
F
G
H
334
SUPREME COURT REPORTS
[ 1988] Supp. 3 S.C.R.
In truth and substance, the plea regarding the validity of the
A 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; 357 Al
B
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
C considered satisfactory or valid unless it is tested by cross-examination.
Mere slatement 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
D 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 theplaintilfisnotsuftident to ful6I thetennsofthestatote. [357B-D)
The basic principle that where a plaintiff comes to court he must
E prove his case should not be whittled down even in a case where no
defendant appears. [357E]
F
The defendant should be allowed his right of cross-examination
and arguments. This ri~ht 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
G difficult to keep the cross-exa;nination within limits. But this is a difficulty of procedure rather than substance. It ls a matter to be sorted out
in practical application rather than by laying down a hard 11nd fast rule
of exclusion. [3588-D]
·
Thirdly, the latitude that may be extended by the Court to the
H defendant inspite of his not having filed a written statement should not
MODULA INDIA v. K.S. DEO
335
cause prejudice to the plaintiff. The <;ourt should ensure that by
A
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 mauner as to avoid any real prejudice to the interests of B
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) crossC
examine the plaintiff's witnesses, and (b) address argument on the basis
of the plaintiff's case. 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 crossexamination be permitted to convert itself virtually into a presentation
D
of the defendant's case either directly or in the form of suggestions put
to the plaintiff's witnesses. l359G-H; 360B-C]
K.K. Chari v. R.H. Seshadri, AIR 1973 3 SCR 691; Jnder Mohan
Lal v. Ramesh Khanna, AIR 1987 SC 1986; Sangram Singh v. Election
Tribunal, Kotah, Bhuray Lal Bava, [1955] 2 SCR I; M/s. Paradise
Industrial Corpn. v. M/s. Kiln Plastics Products, [1976] l 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] l 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. OlympicTrading Corpn. Ltd., AIR 1952 Calcutta 685; Gel/atty
E
F
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; San gram Singh v. Election Tribunal, AIR 1955 SC 425
G
and Ganesh Ram v. Smt. Ram Lakhan Devi, [1981] 1 All India Rent
Control Journal 681, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 173
of 1983.
I
H
A
336
SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
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
AppeHant.
B
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 i-nportant question as to the
C 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 ~ct, 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
E 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
Jl'
fitness for appeal to this Court since the reference had arisen only ,on
an interim order and the view expressed did not result in a judgment,
order or decree against which leave to appeal could be granted. Thereupon the aggrieved party filed a petition for special leave to appeal
before this Court, which was granted. It is in this manner that the issue
has been brought up before this Court.
G
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
H premises in Calcutta and also for a decree for mesne profits or
MODULA INDIA v. K.S. DEO IRANGANATHAN, J.]
337
damages from February 1, 1978 till the date of 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;
A
B
c
D
(b) of pointing out to the court the factual and legal infirmities in
E
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
F
cases.
G
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
H
338
SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
A with interest within a specified period and also to contmue to deposit
or pay the current rent thereafter regularly month after month. Subsection (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 restric-
·::
tions, to extend the time for such deposit or payment or allow the
B deposit or payment to be made in instalments. If the tenant deposits or
pays the amounts as above, he is protected from being evicted from the
premises on the ground of non-payment of rent: sub-section (4). If, on
the other hand, he fails to deposit any amount referred to above within
the time permitted, the consequence set out in sub'section (3) will
. follow. That sub-section reads:
c
D
"(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
E 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
F 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 ..:ate. The
sequitir was set out in sub-sections (3) and ( 4) as follows:
G
H
"(3) If within the time fixed in the order under sub-section
( 1), the tenant deposits in the court the sum specified in the
saict 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
MODULA INDIA v. K.S. DEO [RANGANATI!AN, J.)
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 fm order on the tenant-defeiulant 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 OriA
B
c
D
ginal Side. These rules read as follows:
E
Chapter IX Rule 4 : Suit heard ex parte against defendants
in default-Where one or more of several defendants has or
have filed a written statement or written statements, but
another or .others has or have not, the suit shall, unless
otherwise ordered, upon production of a certificate showF
ing 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
G
may be allowed to cross-examine, in person, the plaintiffs
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 Advo-
. cate or Attorney.
H
i.
B
c
D
E
F
G
H
340
SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
( 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 opportitnity 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 sb'Juld 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
MODULA INDIA v. K.S. DEO [RANGANATHAN, J.]
341
that is a well established principle, particularly under the Rent Acts,
that it is for the plaintiff to satisfy the court that the conditions set out
in the statute to enable him to obtain an order of eviction are strictly
fulfilled. Even where a defendant is said to be ex parte, the plaintiff is
not absolved from this responsibility and it is also necessary for the
Court, in such cases, to satisfy itself that the plaintiff is entitled, on the
terms of the statute, to the relief prayed for: vide K.K. Chari v. R.M.
Seshadri, AIR 1973 3 S.C.R. 691 and lnder 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:
A
B
c
An early decision of this Court, San gram Singh v. Election Tribunal,
Kotah, Bhurey La{ 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 D
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
E
Lucknow Chief Court {Tulsha Devi v. Sri Krishna, AIR
1949 Oudh 50) thought that if the original ex parte order did
not enure 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
F
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
G
tile 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
~
I
.
342
c
D
SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
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 otehr 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. Mis. Kiln Plastics Products,
E [1976] 1 S.C.C. 91 was a case which arose under the Bombay Rents,
Hotel and Lodging House Rates (Control) Act, 1947. The trial Judge
passed an order directing the tenant to deposit certain amounts in
court, in default, making the notice absolute and directing that the
defence would be struck off and the suit fixed for ex parte hearing. An
ex parte decree followed. A single Judge of the Bombay High Court set
F aside the ex parte decree on the ground that the above order was illegal
and without jurisdiction as it did nor 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
(]J
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 !eared 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
•
'. ~
MODULA INDIA v. K.S. DEO IRANGANATHAN, J.]
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
B
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 · C
struck off the defendant is entitled to appear, cross-examine
tlie plaintiffs 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
D
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 SecE
tion 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 Mis. r
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 ordet striking out the defence of the defendant and the
High Court should have dedined to set it aside. In this context, after G
discussing _the scope of Order XI Rule 21 as to the manner in which the
discretion of the court should· be exercised, the Court made certain
general observations towards the end of the judgment of the following
effect:
"Jt was further contended that the High Court was in error H
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in observing that 'in view of the clear language of Order
XI, Rule 21' the defendant has no right to cross-examine
the plaintiff's witnesses. A perusal of Order XI, Rule 21
shows that where a defence is to be struck off in the
circumstances mentioned therein, the order would be that
the defendant "be placed in the same position as if he has
not defended". This indicates that once the defence is
struck off under Order XI, Rule 21, the position would be
as if the defendant had not defended and accordingly the
suit would proceed ex parte. In San gram 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
E 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 ther.e 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
F has a discretion to take or not to take this extreme step. In Ram Chand
v. Delhi Cloth & General Mills Co. Ltd., [1978] 1SCR241, this Court,
on the language of the Delhi Rent Control Act agreeing with the High
· Court !LR 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
G 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:
H
"While we agree with the view of the High Court that the
controller has no power to condone the failure of the
tena~t to pay arrears of .rent as required under s. 15(1), we
MODULA INDIA v. K.S. DEO [RANGANATHAN, J.l
· 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."
( emph.asis added)
A
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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 C
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:
D
"It is true that in order to entitle a tenant to claim the
protection of s. 12(3), the tenant has to make a payment or
deposit as required by s. 13, that is to say, the arrears of
rent should be paid or deposited within one month of the
service of the writ of summons on the tenant or within such
E
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, wilfe-ntitle ihe landlord-straightaway; to-a decree F
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) G
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 cirH
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cumstances of the case, may or may not strike out the
defence. Ifs. 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 thats. 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 bys. 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 bys. 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."
D 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:
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"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 ihe defence of the tenant is struck out under
Section l5(7), the Reiit-Coniroller 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 'in-
, defeasible right' to secure an order for the eviction of
the tenant under Section 14(l}(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, "wqat 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( l)(a), surely ihe tenant has the right to participate
if! the proceedings and cross-examine the landlord. It must
•
MODULA INDIA v. K.S.-DEO [RANGANATHAN, J.J
·347
-
logically follow as a necessary corollary that if the defence
is not to be struck out under Section 15(7) it means that the
tenant has still the defences open to him under the Act. In
the premises, the conclusion iscirresistible 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 discre·
· tion under Section 15(7) not to strike out the Clefence 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( 1) 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."
(·mderlining ours)
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D
One more decision of this Court to which counsel for the responE
dents 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
F
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
G
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 thai there were some
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more landlords of the premises in question. It was 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 strikiilg 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-landIOrds
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 orCier.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 plaintiffs petition under section llA 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 sec-.
tion 2 of the Act. In either view of the matter there is no
escape for the defendant in this case thai his enti~e 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."
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'
.
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
G 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:
H
"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
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MODULA INDIA v. K.S. DEO [RANGANATHAN, J.l
349
the defendant without obtaining leave to enter appearance.
A
. 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· po'sition is
that of a man who for not entering appearance in time is
precluded from defending the suit whether he appears al:
the hearing or does not appear at the hearing."
B
Referring to these observations in Dabendra Nath Dutt v.