Holding

Even when a tenant's defence is struck out under s.17(3) of the West Bengal Premises Tenancy Act, the tenant is entitled to cross‑examine the plaintiff’s witnesses and to make arguments, but not to lead his own evidence, subject to the court’s discretion and safeguards.

Summary

The landlord filed a suit for possession of premises under the West Bengal Premises Tenancy Act, 1956. The tenant filed a written statement but later failed to comply with court orders to deposit rent and his defence was struck out under s.17(3) of the Act. The tenant appealed, contending that even after his defence was struck out he should be allowed to cross‑examine the plaintiff’s witnesses and make arguments, though not to lead his own evidence. The Supreme Court held that a provision like s.17(4) is a deterrent provision and must be construed narrowly; striking out a defence does not render the tenant helpless. Subject to the court’s discretion and safeguards, the tenant may cross‑examine the plaintiff’s witnesses and address the court, but may not lead his own evidence. The appeal was allowed and the suit was remitted to the trial court with these principles.

Issues considered

The effect of striking out a tenant's defence under s.17(3)/s.17(4) of the West Bengal Premises Tenancy Act, 1956.
Whether a tenant whose defence is struck out may cross‑examine the plaintiff's witnesses.
Whether the tenant may lead his own evidence or make submissions beyond cross‑examination.
Whether the court must exercise discretion to prevent prejudice to the plaintiff.

Legislation cited

Code of Civil Procedures. Order 11 Rule 21, s. Order 20 Rule 4, s. Order 8, s. Order 9 Rule 6, s. Order 9 Rule 7
Transfer of Property Acts. 106
West Bengal Premises Tenancy Act, 1956s. 13(6), s. 17(1), s. 17(2), s. 17(2A), s. 17(3), s. 17(4)

Subjects

tenancyevictiondefence struck outcross‑examinationWest Bengal Premises Tenancy Actcivil procedurelandlord‑tenant lawprocedural fairness

Judgment

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) of-
Nature 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 direct- C
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 E
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 F
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 dis-
abilities of a person in default should be limikd to the minimum extent G
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
H
legislature. [356E-F]
333
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 eject-
ment 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 finish-
ing 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 evi-
dence 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]

The defendant should be allowed his right of cross-examination
and arguments. This ri~ht should be subject to certain important
safeguards. [357H; 358A]
F
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 diffi-
culty 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 regu-
late 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) cross- C
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 weaknes-
ses of the plaintiff's case. In no circumstances should the cross-
examination 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 E
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. F
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
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.
H
I
336 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

From the Judgment and Order dated 30.9.1982 of the Calcutta
A
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. There-
upon 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 (pre-
sent 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.
A
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 B
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 c
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 state- D
ment. 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 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.
F
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. 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. 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 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 "(3) If a tenant fails to deposit, or pay any amount refer-
red 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
D 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:

"(3) If within the time fixed in the order under sub-section
( 1), the tenant deposits in the court the sum specified in the
G 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
H 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
A
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 B
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
c
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 with- D
out 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 Ori-
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 show- F
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.
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 inter-
B rogatories, 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 interrogat-
ing or seeking discovery or inspection may apply to the
Court for an order to that effect, and an order may be made
c 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
D 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
E 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
F 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 can-
not 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
G 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 pro-
vided for in the Calcutta High Court Rules, to relax its rigidity depend-
ing upon the circumstances of each case. The position in an eviction
H 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,
A
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. B
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.
c
Learned counsel has relied on certain decisions and the observa-
tions therein in support of his submissions. These may be referred to:
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 neces-
sary 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 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 pre-
judiced. 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
c 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 soun-
D der 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 con-
tained 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 straighta-
way. 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 subst-
ance 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 Sec- E
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
344 SUPREME COURT REPORTS {1988] Supp. 3 S.C.R.

in observing that 'in view of the clear language of Order
A
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
B 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
c 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
D the plaintiff's case is, at least, prima facie proved. But, as
we set aside the order under Order XI Rule 21, this conten-
tion 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 consider-
ing 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 Con-
troller 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:

"While we agree with the view of the High Court that the
controller has no power to condone the failure of the
H 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
A
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 B
defence is struck out."
(emph.asis 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 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 appel-
late 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 sub-
ss. (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 cir- H
346 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

cumstances of the case, may or may not strike out the
A
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
B 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 commit-
ting default in payment or deposit as required bys. 13(1),
c 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:

"It would be incongruous to hold that even if the defence
of the tenant is not to be struck out under Section 15(7),
E 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
F 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
G 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
H 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 A
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 B
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
c
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 over-
ruled, cannot stand with the subsequent decision in D
Shyamcharan case interpreting the analogous provisions of
the Madhya Pradesh Accommodation Control Act, 1961 as
it is of a larger Bench."
(·mderlining ours)

One more decision of this Court to which counsel for the respon- E
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 contest-
ing 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 H
348 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

more landlords of the premises in question. It was not a
A
case of denial of relationship of landlord and tenant bet-
ween 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
B 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
c 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 con-
firmed by a Bench of the High Court in Civil Revision No.
824 of 1964 decided on 21.4.1964, had pointed out on the
D basis of the defendant's statements in his written statement
as also in his rejoinder to the plaintiffs petition under sec-
tion 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
E 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
F · 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
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:

"If he does not enter appearance within ·the time limited · I
~
the case will go into what is called the undefended list and I
H when the case is on the undefended list it is not possible for
/ 1
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. Smt.
Satyaba/a 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
c
can be filed. In that context, I am not inclined to impose .
more punisliment 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 o.
for hearing from the undefended list, not only io cross-
examine the witnesses ofthe plaintiff and demolish in such ·
manner the plaintiffs case on evidence that the Court will
not pass any decree in the plaintiffs favour but also to make
such arguments and submissions on law and on such evi-
dence as the plaintiff may have broughito the Court. These E
are, in my opinion, valuable rights under the Code whieh
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 F
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 what- G
ever 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 possibility of cross-examination in such a
case by the defendant of plaintiff's witnesses.
H
xxx xxx xxx xxx
350 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A I have not been able to persuade myself to take the view
that a suit can only be defended by filing a written state-
ment 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
B 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 con-
: sider 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
C 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
D 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 o~ 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
E to the facts- establishing the claim to ejectment and to ad-
dress the Court with regard to that claim, I am really allow-
ing 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
F 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
G 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 thing~
happening "the tenant shall not be entitled to the benefit o
protection against eviction under this section." So, the pre ·
H viso really contem.l'lates a defence to the claim for eject-
MODULA INDIA v. K.S. DEO [RANGANATHAN, J.] 351

ment, and if that defence is struck out, it must necessarily
A
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 pro-
ceedings for proof of the applicability of the proviso."
B
The effect of a strike off of defence was expressed in even more forci-
ble 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 c
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
by such conduct forfeit the special protection which the Act
confers on tenants and will be relegated to his position D
under the general law. I do not find any justification in the
language of section 14(4) to limit the defence against eject-
ment 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, E
C.J., M.M. Dutt, J. and A.K. De, J. in Gurudas Biswas v. Charu
Panna Seai, 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 eject-
ment where the defence as to delivery of possession had been struck
out under section 17(3) of the Act, the defendant could take the
defence of the non-existence or invalidity of a notice under section F
l3(6) in the court below and in the court of appeal. This question was
answered in the affirmative, endorsing the conclusion reached in a
number 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) G
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- H
352 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

ship of landlord and tenant is not disputed as here (a)
A whether the tenancy has been validly determined by a
notice under Section 106, Transfer of Property Act, (b)
whether a valid notice pf 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
B 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 20,
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
c tenant to contend and show, if possible, on plaintiffs evi-
dence and materials as are on record, both at the 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
w cross-examine plaintiffs witnesses, when they give e1•i-
D dence, or to call his own witnesses at the trial, if his defence
is struck our:·

The above observatio1's came Uf'. fo.! con~~deration in_Da>:a 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 17( 1)
E 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 ·
plaintiffs husband on all issues but the defendant examined himself
' only on the question whether notice to quit had 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
· E struck out, the-trial court_vvas not justified in a_H9wing t_!le defendant jo .
'cross-examine th·e plaintiffs 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 judg-
ment of the Bench, observed that, strictly speaking, the observations
relied upon did not relate to the points that had been posed before the
G Full Bench for consideration and he~ce had no binding force. He
·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.
o.......,£/ection T;ibunai, AIR i9.'i5-S.C.-425, Order 11Ruie 2f of the C.P.C.,
in
the decision Paradise Industrial Corpn. v. Mis. Kiln. Plasties Pro-:-
ducts, (supra) and the observations in. Babbar Sewing Machine Com~ ~
H pany v. Trilok Nath Mahajan, (supra) and concluded:
MODULA, INDIA v. K.S. DEO [RANGANATHAN, J.J 353

"It is true that the Supreme Court did not express any
A
opinion on the question, but it is apparent that the
Supreme Court was inclined to hold that the defendant was
entit1ed 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 B
been struck out he would not be permitted to cross-
examine the plaintiffs 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 c
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 D
the proceedings and make his submissions against the
plaintiffs case for delivery of possession. The learned Judge
was, tl;ierefore, justified in allowing the defendant to cross-
examine the plaintiff's witness and to adduce evidence by
examining himself on the point of notice."
E
This is the background against which the issue has to be con-
sidered 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 I=
eviction, one important safeguard to the iandlord is in this provi-
sion 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. G

(b) Defence being struk off does not merely mean. the ex-
clusion of the written statement or_ the eositive 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 eject-
ment. Cross examination of the plaintiff's witnesses and putting H
354 SUPREME COURT REPORTS [1988] Supp. 3 S:C.R. '
'
forth arguments demolishing the plaintiffs case are as crucial
A and vital parts of the defence as the putting in of a written state-
ment or examin~tion 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
e· 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 tJght 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.
c
(d) The concession that the defendant can cross-examine the
plaintiffs witnesses or put forward arguments to demolish the
plaintiff's case will lead to confusion and practical difficul-
ties. 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, I 1975] 2 SCR 1004 and the
errors pointed out by M.M. Dutt, J. in the mode of the crO§S·
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
E guise of demolishing the plaintiff's case from becoming the indi-
rect 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
F 1977 Cal. 110, the Patna High Court in Ganesh Ram v. Smt. Ram
Lakhan Devi, [ 1981] l 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
G ~ritten statemen{, '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:

H (a) The expression "defence being struck out" obviously relates
MODULA INDIA v. K.S. DEO [RANGANATHAN, J.] 355

to the consideration of a document being ruled out. It suggests
that the intention is only that the written statement should be
A
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 posi-
tion cannot be worse than that of a similarly placed defendant
under the Original Side Rules of the Calcutta High Court or B
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 c
that the statutory conoitions justifying eviction are fulfilled. This
the plaintiff can establish· only by leading evidence and such evi-
dence will not be worth anything unless tested by cross-examina-
tion. The cross-examination of the plaintiff's witnesses is more
an integral part of the plaintiffs case than an aspect of defence. D

(c) The Calcutta High Court has uniformly held that, even in
an undefended action, a challenge on ground of non-issue or .'lit~
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 E
filing of the suit, the non-issue or invalidity is just one of the
pleas that can b.e 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.
F
(d) The observations of this Court in Sangram Singh,
Paradise Industrial Corpn. and Eabbar Sewing Machine Com-
pany, (supra) are categorical and directly on this aspect of pro-
cedural law and deserve to be followed in the context of like
provisions of tenancy legislations as well.
G
We have considered the contentions urged on behalf of both the
parties and the respective view points of the two lines of decision_s 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 H
356 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A provisions are most helpful and instructive. After giving careful
ihought to all the aspects, we have come to the conclusion that the
view expressed in the case under appeal by Ramendra Mohan Dutta,
Acting Chit>Oustice, 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
B now to set out the reasons for o'ur 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 circums-
pection before striking out the defence of a tenant under this provi-
sion. This Court has interpreted provisions like this in rent acts to say
c 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
D 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. Those
decisions have enunciated a general equitable principle. We are also of
E the same view that provisions of this type should be construed strictly
and that 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 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. The
F provisions should not be given any wider operation than could have
been strictly intended by the legislature.

I.t 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.
G 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 regard-
H ing the validity of the notice has invariably to be taken as a plea
MODULA INDIA v. K.S. DEO [RANGANATHAN, J.] 357

in defen.ce in such suits. The rule, 'therefore, is really an exception to
the strict application of a rule that a tenant. whose defence is struck off A
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 in the case in any manner? B
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, ii' 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 con-
sidered satisfactory or valid unless it is tested by cross-examination. C
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 o
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 fwward by the plaintiff is
not sufficient to fulfill the terms of the statute'. · 'I E

To us it appears that the basic principle tilat 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 evi- F
dence 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 state-
ments. For after all, the court on its own motion, can do very littl~ to
ascertain the truth or otherwise of the plaintiff's averments and it is G
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 H
358 SUPREME COURT REPORTS (1988] Supp. 3 S.C.R.

that this right should be subject to certain important safeguards. The
A 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.
B
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
G 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
D 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 sorted out in practical applica-
tion 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
E 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 la\itude
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
F 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 proceed-
ing the plaintiff is not taken by surprise or gravely prejudiced. This
difficulty however can be easily overcome in practice, because there is
G 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
H basis of the provisions of Order VIII of the Code of Civil Procedure.
.,,, r: ._-;;,;,.
~·- '
o--Cl;:·' "'""'·Ci'

MODULA INDIA v. K.S. DEO [RANGANATHAN, J.] 359

Rules 1, 5 and 10 of this Order have been recently amended by the
A
Amend111ent 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 B
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
c
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" prgnounce 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 0
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 r of rule 5. This sub-rule,
however, has application only in a case where a pleading is filed but E
does not contain a specific or implicit denial of the averments con-
tained 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 con-
tained in the plaint and pass a decree straightaway. These provisions of
the Code of Civil Procedure, far from supporting the contentions of F
the plaintiff that a decree on the basis of the plaint should follow a
failure t() file the written statement, rather indicate a contrary posi-
tion, 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. G

For the above reasons, we agree with the view of Ramendra
'''I Mohan D_utta, 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 dis-
cretion by the court on the facts of a particular case, would generally H
be entitled:
360 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A (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
B
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 legiti-
mate scope and to convert itself virtually into a presentation of the
defendant's case either directly or in the form of suggestions put tci the
plaintiff's witnesses.
c
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.