Calcutta High Court
M/S. Thisa (India) Private Ltd. & Anr. vs Smt. Anjali Devi Jajodia on 18 May, 2000
Equivalent citations: (2000)3CALLT331(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha. J. 1. The tenant-defendant is the Appellant. An ex-parte decree dated 29.12.96 for eviction of the defendant was passed against him, inter alia, on the ground that despite an order made under section 17(2A) of the West Bengal Premises Tenancy Act wherein the petitioner was found to be a defaulter to the extent of a sum of Rs. 14,70,250/- and despite the fact that in a revision application marked as C.O.No. 1286(W) of 1995, this Court by an order dated 19.2.96 directed the petitioner to pay half of the amount within six months from the date thereof and the remaining half in 10 equal monthly instalments after payment of the first instalment; failed and/or neglected to pay the same. The suit was fixed for ex parte hearing. An application had been filed under section 151 of the Code of Civil Procedure on 30th September, 1996 praying for recalling the order fixing the suit for ex parte hearing dated 19.9.96 however, was rejected by the learned trial Court, stating :-- "A perusal of the case record shows that on 14.8.96 this Court observed: "Just because a revision under section 115 of the CPC is allowed by the Hon'ble Calcutta High Court, this does not confer any right on the defendant to remain absent on the date fixed for further hearing of the suit. Such conduct should be discouraged. Otherwise no suit can be disposed of expeditiously. However, for the ends of justice the defendant is allowed to contest the suit, yet in order to discourage repetition of such conduct in future, the defendant is directed to pay a cost of Rs. 300/- to the plaintiff on account of delay occasioned in the hearing of the suit on account of their default. The petition in question is disposed of accordingly on contest. In view of the aforesaid clear direction of the Court a similar plea for condonation for a repeated default if allowed would amount to travesty of justice. The conduct of the defendant appears to be deliberate and motivated so that the final disposal of the suit may be delayed as far as possible. As such the petition dated 30.9.96 under section. 151 CPC is rejected on contest without cost" 2. Before coming to the merit of the matter, the fact of the case may be noticed. 3. By an agreement in writing the appellant was inducted in the suit premises on leave and licence basis in respect of flat No. 58 of Tivoli Court at a monthly rent of Rs. 3,981.25 p. The rent was increased from the month of March 1986 to Rs. 10,000/- per month; from 1st March, 1987 to Rs. 12,000/- and from 1st March, 1988 to Rs. 13,500/- per month. The defendant became a defaulter. He paid a sum of Rs. 1,00,000/- and issued 4 cheques amounting to Rs. 4,80,500/- in total which were dishonoured. He allegedly agreed to vacate the flat by February, 1989. The arrears dues regarding license fee rose to the extent of Rs. 4,26,500/- as had been calculated by the landlord in the following manner :-- "From March 86 to February 87 @ 10500 x 12 = 1,26,000.00 March 87 to February 88 @ 12000 x 12 = 1,44,000.00 March 88 to February 89 @ 13500 x 12 = 1,62,000.00 March 89 to September 89 @ 13500 x 7 = 94,500.00 5,26,500.00 Less : Paid 1,00,000.00 4,26,500.00 4. The defendant No.2 accepted his liability and wrote a letter to the husband of the plaintiff to allow him time to pay off the same. Thereafter the suit was filed on 19.9.92. An order dated 29.11.94 on the appellants' application under section 17(2) of the West Bengal Premises Tenancy Act was passed, directing the defendant to pay the arrears of a sum of Rs. 14,70,250/- in 140 Instalments. The appellant filed a revision petition in the Court thereagalnst before this Court and in the said proceedings the aforementioned directions were issued on 6.3.96 but the same had not been complied with. 5. On 9.8.95 the defence of the defendant was struck out in terms of sub-section(3) of section 17 of the Act On 30.4.96 the suit was called for hearing and although the defendant filed hazira he was found absent on call. The suit was opened and adjourned till 14.8.96 on which date he filed an application for adjournment on the ground that he had filed an application for extension of time before this Court for payment of half of the arrears and the same was allowed on payment of cost of 300/- stating :-- "Learned advocate for both the sides are present. The petition dated 5.6.96 filed by the defendant No.l praying for shifting of the suit from Board of P. hearing and for setting aside the ex parte hearing is taken up for hearing. Hd. learned advocate of both the sides. The learned advocate for the petitioner submitted that a revisional application has been field by the defendant under section 115 of the CPC against the order passed by this Court under section 17(2)(A) of the W.B.P.T. Act and that the Hon'ble Calcutta High Court was pleased to modify the order of this Court and directed the defendant to pay a total sum of Rs. 17,00,000/- within a month and the balance within further period of 6 months. Therefore, under the circumstances the defendant submitted that the matter should be heard ex parte. Learned advocate for the plaintiff submitted that the defendant did not make any payment as per order of the Hon'ble Calcutta High Court. In my opinion the contention of the plaintiff and that of defendant appears to be of no relevance here as regard the ex parte hearing of the suit. There is no explanation in the petition as to why the defendant could not appear on 30.4.96 at 1.00 P.M. when the suit was called for hearing, even though both the parties had filed haziras. Just because a revision under section 115 of the CPC is allowed by the Hon'ble Calcutta High Court, this does not confer any right on the defdt. to remain absent on the date fixed for further hearing of the suit. Such conduct should be discouraged, otherwise, no suit can be disposed of expeditiously. However, for the ends of justice the defendant is allowed to contest the suit, yet in order to discourage repetition of such conduct in future, the defendant is directed to pay cost of Rs. 300/- to the plaintiff on account of delay occasioned in the hearing of the suit on account of their default. The petition in question is disposed of accordingly on contest. Fix 19.9.96 for further hearing of the suit". 6. On 19.9.96 the defendant's lawyer refused to conduct the suit. The hearing was concluded on that date and 30th September, 1996 was fixed for orders. The order dated 19th September, 1996 reads thus :-- "Petitioner filed hazira. Learned advocate for defendant No.1 stated that he may be granted leave to retire from the above suit. Let the petition be kept with the record. The suit is taken up for ex parte hearing, P.W. 1 Shree Vallabh Singh is examined in chief in full. Documents marked exhibits on proofs. Head learned advocate for the pltff. to 30.9.96 for order". 7. An application for setting aside the ex-parte hearing was filed on 30th September, 1996 which was dismissed. 8. As against the order passed by this Court dated 19.2.1996 a special leave application was filed before the Supreme Court on 18,10.96. On 16.11.96 the defendant again filed an application for adjournment before the learned trial Judge which was allowed on payment of cost of Rs. 200/-. Again on 21.11.96 the Court dismissed the application of the defendant and delivered the judgment. 9. Against the said Judgment and decree this appeal has been filed. On 6.3.97 while hearing the stay application, a Division Bench of thts Court directed, "Arrears calculated as per the decree which came to Rs. 18,20,187.50 p. The defendant is directed to pay Rs. 2,00,000/- by 31.3.97 and balance by 14 equal instalments." The defendant paid Rs. 2,00,000/- and thereafter paid 3 cheques all of which were dishonoured for want of fund. On 30th July, 1997 a prayer was made for extension of time which was allowed whereafter the defendant paid a sum of Rs. 3,74,783/-. The plaintiff-Respondent preferred a special leave application before the Supreme Court of India against the aforementioned order of extension. By an order dated 10.1.98 the Supreme Court granted special leave to appeal and directed the executing Court to execute decree subject to the result of pending appeal in the High Court for ejectment whereafter again no payment had been made by the defendant. The executing Court, however, refused to execute the decree despite the order of the Supreme Court on the ground that no execution can be effected as the same would be subject to the result of the appeal and not Irrespective of the result thereof. The plaintiff filed a contempt application before the Supreme Court of India. On 31.7.98 before the Supreme Court of India the defendant gave an undertaking that he would pay all arrears within two weeks and vacate the suit premises within 3 months. The defendant's application for extension of lime before the Supreme Court of India dated 6.11.1998 was rejected and it was directed that the plaintiff would be put in possession with the help of the Commissioner of Police, Calcutta. Bailable Warrant of arrest was also issued against the defendant whereafter, possession of the premises was handed over to the plaintiff on 9.11.98. 10. On 23.11.98 he appeared before the Supreme Court and as full payment was made, the Supreme Court recalled the contempt notice. The Applicant No.2 expired on March, 1999 and an application has been filed marked as C.A.N. No. 4484 of 1999 for taking appropriate note of subsequent events. 11. Mr. Bachwat, the learned senior counsel appearing on behalf of the appellant submitted that had an opportunity to cross-examine the witness been given to the defendants, It could have shown that they were not defaulters. According to the learned counsel, the appellant further could have shown having regard to the description of the premises as mentioned in the schedule to the plaint vis-a-vis the evidence, that the eviction is sought for only In respect of a portion of the suit premises. In support of the first contention strong reliance has been placed by the learned counsel on Modula India v. Kamakshya Singh Deo in the following terms :-- "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? 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 plaintiffs case by the cross-examination of his witnesses, It would be equally correct to say that the cross-examination of the plaintiffs witnesses really constitutes a finishing touch which completes the plaintiffs case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it Is tested by cross-examination. The mere statement of the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witness can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Look 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 plaintiffs witnesses are not speaking the truth or that the evidence but forward by the plaintiff is not sufficient to fulfill the terms of the statute." 12. To us It appears that the basic principle that where a plaintiff comes to the Court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear say that the Court can only do this by looking the plaintiff's evidence and pleadings supplemented by such questions as the Court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the Court under a great handicap in discovering the truth or otherwise of the plaintiffs statements. For after all, the Court on Its own motion, can do very little to ascertain the truth or otherwise of the plaintiffs averments and it is only the opposite party that will be more familiar with the detailed facts or a particular case and that can assist the Court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff's case. 13. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, insplte 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. 14. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiff witnesses by the defendant whose defence is struck off, procedural chaos may result unless great care 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 plaintiffs case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion. 15. A third safeguard which we would like to impose is based on the observations of this Court in Sangram Singh's case . As pointed out therein, the essence of the matter In all such cases Is that the latitude that may be extended by the Court to the defendant in spite of his not having filed a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in Just enough evidence to establish a prima facie case. Therefore, the Court should ensure that by permitting the defendant at a large stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the Court and it is always open to the Court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the Interests of the plaintiff. 16. Mr. Ashok Banerjee, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that it is not fit case where this Court sould Interfere with the impugned judgment. The learned counsel submitted that an opportunity to cross-examine the witnesses examined on his behalf had been granted to the appellant but they failed to avail the same. It was submitted that the learned trial Judge having arrived at a factual conclusion that the defendants for all Intent and purport Intended to delay the proceedings, the appellant is not entitled to any equitable relief. 17. The basic fact of the matter, as noticed hereinbefore, is not in dispute. Although the appellant's defence against ejectment has been struck out, he might have been entitled to cross-examine the witnesses examined on behalf of the plaintiff but such cross-examination could have been only for a limited purpose. The defence of a tenant although has been struck off, In view of the aforementioned Supreme Court decision, he was entitled to show by cross-examining the wlthnesses of the plaintiff that the plaintiff has failed to prove his own case. For such a limited purpose repeated adjournments were not called for. A suit for ejectment should as far as possible be disposed of expeditlously. A tenant while occupying the premises either during subsistence of tenancy or even after termination thereof is bound to pay rent to the landlord. The West Bengal Premises Tenancy Act (hereinafter referred to as the said Act), in the matter of grant of a decree on default has granted special benefits to the tenant by reason of sections 17(2) and 17(2A). Once the aforementioned provisions of the said Act is complied with, the tenant gets the statutory protection from being evicted on the ground of default. Such is not the position of legislation in respect of defaulters in most of the other States in India. 18. A special protection granted to a tenant must, therefore, be strictly complied with. At this Juncture, keeping in view the undisputed facts, as noticed hereinbefore. It is not for the appellant to raise a contention that his defence ought not to have been stuck off. It may be noticed that although eviction of the appellant was sought for on various grounds, the decree was passed only on the ground of default. It has also to be borne in mind that the direction to deposit the rent was passed in the appellant's own application and the said order has not been set aside. The said order thus attained finality. 19. The only question which survives for consideration is as to whether he availed the opportunity of cross-examination despite the same having been granted to him. 20. The order sheets dated 14.8.96 and 19.9.96 clearly show as to under what circumstances the learned trial Judge refused to grant adjournment. The factual matrix of the matter as stated hereinbefore shows that the appellant was also not entitled to grant of such opportunity. A discretionary order should not be passed in favour of a litigant who approaches the Court with a pair of dirty hands. The narration of facts clearly depicts that he times and again failed to comply with the order of this Court as also the apex Court. 21. A point has been raised in the Memo of Appeal that the appellant was not granted any opportunity to contest the case as he was not aware that his lawyer would not conduct hts case. But his lawyer refused to conduct the case on 19.9.96 and thereafter again he filed an application for adjournment on 16.11.96 which was allowed on payment of cost of Rs. 200/-. He did not even comply therewith and again filed an application on 21.11.96 which was dismissed by reason of the order quoted supra. 22. His subsequent conduct also shows that he had tried his best to remain in the tenanted premises by making false assurances and even went to the extent of issuing cheques which had bounced not once but on several occasions. He even did not comply with the undertakings given before the Supreme Court of India. It is, therefore, not a fit case where, this Court can come to a reasonable conclusion that the learned trial Judge exercised his discretion in refusing to grant adjournment wrongly. 23. A Court in terms of Order XVII of the Code of Civil Procedure has a right either to grant or to refuse adjournment. An order refusing to grant adjournment cannot be assailed before a higher forum unless it is shown to be either without jurisdiclton or patently erroneous. For the reasons, aforementioned, we do not find any merit in this appeal which is accordingly dismissed. In the facts and circumstances of this case the Appellant shall bear the costs of this appeal. Counsel's fee assessed at 200 Cms. M.H.S. Ansari, J.
24. I agree.
25. Appeal dismissed