Nazir vs Ramjan & Ors on 20 September, 2013

[Cites 7, Cited by 0]

Rajasthan High Court - Jaipur

Nazir vs Ramjan & Ors on 20 September, 2013

This appeal under Order XLIII, Rule 1(u) CPC has been filed aggrieved against judgment dated 04.11.2008 passed by the Additional District Judge (Fast Track) No.5, Jaipur City, Jaipur, whereby, the appeal preferred by the respondents under Section 96 has been allowed and the judgment and decree passed by the trial court dated 23.07.2008 has been set aside and the matter has been remanded back to the trial court with a direction to provide opportunity to the respondents-defendants to lead evidence and, thereafter hear the parties and redecide the suit.

The brief facts of the appeal may be noticed thus: a suit seeking eviction and arrears of rent was filed by plaintiff Nazir against respondents-defendants regarding house situated at 3923 Kumharon Ki Nadi, Purana Tabela, Chokadi Ram Chandra, Jaipur. The suit was filed on the grounds of arrears of rent and bona fide necessity.

The defendants failed to file written statement and, therefore, the right to file written statement was closed by the trial court on 30.09.2003. The defendants filed application seeking permission to file written statement, which was dismissed on 15.01.2004, against which, writ petition was preferred before this Court, which also was dismissed on 02.11.2007.

In the meanwhile rent was determined under the provisions of Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act'), which was questioned by the defendants and the appeal against the determination was dismissed. However, on failure to comply with the direction issued under Section 13(3) of the Act their defence against eviction was struck off under provisions of Section 13(5) of the Act. Thereafter, the plaintiff completed his evidence, whereby, the defendants cross-examined the plaintiff's witnesses. After closing of the evidence by the plaintiff, the defendants filed an application seeking permission to lead evidence. The said application came to be rejected by the trial court by its order dated 30.04.2008, inter alia, with the following directions:-

??????????? ?? ???? ?? ?????? ?? ???? ???? ?? ???? ????? ??? ?????? ???? ?? ???? ??? ????? ??? ??? ??????????? ?? ??? ?????? ??? ??? ????? ??? ??? ?? ???? ??? ??? ??????????? ?? ??? ?? ??? ???????? ???? ??? ???? ??? ????? ???? ?? ???????? ????? ????? ???? ??? ?? ?? ?????? ???? 8 ???? 1 ?(3) ??.??. ?? ?????? ?? ??????? ?? ?? ???? ?? ????? ???? ??? ??? ??? ?? ???? ???? ???? ?? ? ???? 8 ???? 1 ? 3 ??.??. ?? ????????? ???? ? ???????? ???? 19 ???? 1 ?? ??????? ?? ?????? ??????? ?? ??????? ?????? ??????????? ?? ????? ?????? ?? ???????? ???????? ?? ??? ??? ??? ?? ??? ??????? ??? ???? ?? ?????? ???? ???? ? ??: ??????????? ?? ?? ????????? ???? ???? ? ???? ?? ?? ??????? ??? ???? ?? ??????? ???? ?? ?? ????????? ???? ?????????? ???????? ?? ????? ???? ???? ?? ?"

However, no documents as envisaged by the order dated 30.04.2008 was filed and the trial court by its judgment and decree dated 23.07.2008 decreed the suit for eviction and arrears of rent against the defendants-respondents.

Feeling aggrieved by the judgment and decree dated 23.07.2008, the defendants filed regular first appeal before the appellate court. The appellate court after hearing the parties, by its judgment dated 04.11.2008 while relying on the law laid down by this Court in Ganpat Chand v. Jeth Mal : AIR 1983 Rajasthan 146, though without referring to order dated 30.04.2008 passed by the trial court (supra), came to the conclusion that the defendants should have been granted opportunity to lead evidence, which was wrongly refused by the trial court and, consequently, passed the judgment allowing the appeal directing as under:-

"??: ?????????-????????? ?? ??????? ????? ?????? ?????: 04/2008 ? 05/2008 ??????? ?? ???? ??? ??? ??????? ??????? ???????? ?????? ????? ???????? ?????? ? ?????? ?????? 23.7.2008 ?????? ???? ???? ??????? ??????? ???????? ?? ?? ??????? ???? ???? ?? ?? ?????????-????????? ?????? ?????? ?????? ??? ????????? ?? ?????? ?? ?????? ???-???? ??? ????? ???? ?? ??? ???????? ????? ????????? ?? ??????? ???????? ???? ?? ???? ??? ??? ????????? ????????? ?? ????? ????? ????? ??? ??? ?? ??? ???? ?? ?????? ? ?????? ????? ???? ?"

It is submitted by learned counsel for the appellant that the learned First Appellate Court was not justified in remanding the suit to the trial court as the right to file written statement had already been closed and the same had been upheld by this Court and further the defence against eviction also stood struck off under the provisions of Section 13(5) of the Act and, therefore, the defendants had no right whatsoever to lead evidence. It was further submitted that by order dated 30.04.2008 the trial court had granted opportunity to the defendants under the provisions of Order VIII, Rule 1A(3) CPC, however, the said opportunity was also not availed and, therefore, the First Appellate Court was not justified in remanding the matter permitting the defendants to lead evidence.

Reliance was placed on judgment of Hon'ble Supreme Court in the case of Modula India v. Kamakshya Singh Deo : (1988) 4 SCC 619 and the judgment of this Court in Mst. Pari & Ors. v. Om Prakash : (2007) 1 WLC 123.

Contesting the submissions made by learned counsel for the appellant, it was submitted by learned counsel for the respondents-defendants that the judgment impugned passed by the First Appellate Court does not call for any interference. It was submitted that the order dated 30.04.2008 passed by the trial court permitting the defendants to produce documents under the provisions of Order VIII, Rule 1A(3) CPC was a farce, inasmuch as, even if, the said documents were filed by the defendants, in absence of opportunity to prove the said documents by leading evidence, the said documents would have been mere piece of papers and could not have been looked into by the Court. It was further submitted that the law laid down by this Court in the case of Ganpat Chand (supra) was not at all dealt with by the trial court and rather a order contrary to the said judgment had been passed and, consequently, the First Appellate Court was justified in setting aside the judgment and decree passed by the trial court and remand the matter to the trial court so as to comply with the requirements of law laid down by this Court in the case of Ganpat Chand (supra). It was also submitted that despite the judgment of Hon'ble Supreme Court in the case of Modula India (supra), the judgment of this Court in the case of Ganpat Chand is still a good law and, as such, the appeal filed by the appellant deserves to be dismissed.

I have considered the rival submissions.

Undisputed facts are that the defendants failed to file any written statement, which right was closed by the trial court, application seeking recall of the said order was also rejected and writ petition against the said order was dismissed by this Court.

Besides the above, the defence was also struck off by the trial court under the provisions of Section 13(5) of the Act.

Despite the above position of not filing of written statement and striking off defence, the defendants filed application on 11.09.2007 before the trial court, which reads as under:-

"??????????? ?? ?? ?? ????? ????????? ?? :-

1. ?? ?? ????? ???? ??? ???? ??????????? ?????? ?? ?????? ???? ?? ???? ?????? ????? ???????? ??? ???? ???, ??????????? ????? ??? ???? ? ???? ?????? ?? ???? ????? ????? ???? ??? ?????? ??? ??????????? ?? ???? ?? ??????? ?? ????????? ???? ???? ???? ??? ?????? ???????? ?? ????? ??? ????? ???? ???????? ???? ???? ???????? ??? ???? ?????? ???? ?

??: ????????????? ??? ?? ?????? ?? ?? ????? ???? ??? ????????? ?? ??????? ???????? ???? ???? ???? ?????? ???? ?? ???? ?????? ???? ?? ???? ?????? ?????"

The trial court by its order dated 30.04.2008 as quoted hereinbefore noticed that right to cross-examination has already been granted earlier and in the interest of justice the defendants can participate in the final arguments and further went on to permit filing of documents under the provisions of Order VIII, Rule 1A(3) of the Act alongwith affidavit under Order XIX, Rule 1 CPC in support of the said documents but rejected the prayer to lead evidence.

This Court in the case of Ganpat Lal (supra) while dealing with a case, wherein, no written statement was filed by the defendants, by relying on judgment of Patna High Court in the case of Siai Sinha v. Shivadhari Sinha : AIR 1972 Patna 81 held as under:-

.....In my humble view, ordinarily the course which Untwalia, J., has pointed out in Siai Sinha's case is the proper course to be followed in such cases and the defendant should be allowed not only to cross-examine the plaintiff's witnesses but he should also be allowed to lead evidence in rebuttal so as to demolish their version but as pointed out by Untwalia, J., the defendant cannot be allowed to lead evidence in respect of specific defences which have not been raised by him on account of his failure to file a written statement. However, within the limited sphere pointed out above, the defendant could also be allowed to lead his evidence in rebuttal. The defendant should also then be permitted to take part in the final arguments, before the trial court proceeds to decide the suit. The aforesaid procedure should also be applied to the present case.

(emphasis supplied) The said judgment provided that even in a case where the defendant had failed to file his written statement, not only such defendant would be entitled to cross-examine the plaintiff's witnesses, but he should also be allowed to lead evidence in rebuttal so as to demolish their version, but the defendant could not be allowed to lead evidence in respect of specific defenses, which have not been raised by him on account of his failure to file a written statement.

However, the Hon'ble Supreme Court in the case of Modula India (supra) while dealing with a case where, the defence of the defendant had been struck off under the provisions of the relevant Rent Control Act dealt with the right of such a defendant and came to a categorical conclusion and held thus:-

24. For the above reasons, we agree with the view of Ramendra Mohan Datta, Acting C.J., that, even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:

(a) to cross-examine the plaintiff's witnesses; and

(b) to address argument on the basis of the plaintiff's case.

We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly on in the form of suggestions put to the plaintiff's witnesses.

(emphasis supplied) The Hon'ble Supreme Court ruled even in a case where the defence has been struck off, the defendants are entitled only to cross-examine the plaintiff's witnesses and to address arguments on the basis of the plaintiff's case and has clarified, rather emphasized that the defendants would not be entitled to lead any evidence of their own nor can their cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case.

The case in hand is a case where the defendants not only did not file their written statement but their defence has also been struck off by the trial court.

In view of the law laid down by the Hon'ble Supreme Court in the case of Modula India (supra), in the opinion of this Court, the judgment in the case of Ganpat Chand (supra) permitting the defendants to lead evidence in rebuttal being contrary to the law laid down by the Hon'ble Supreme Court is no longer a good law to the extent it permits the defendants to lead evidence in rebuttal.

Though the trial court permitted the defendants to cross-examine the plaintiff's witnesses and participate in the final arguments, which approach is in consonance with the law laid down by Hon'ble Supreme Court. The First Appellate Court as noticed above not only permitted the defendants to lead evidence in rebuttal but also permitted the defendants to lead evidence on ground of eviction put forth by the plaintiff other than the ground relating to default in payment of rent. The approach of the First Appellate Court is, therefore, wholly contrary to the law laid down by the Hon'ble Supreme Court.

So far as argument of learned counsel for the respondents regarding the so called opportunity provided to the defendants by order dated 30.04.2008 is concerned, the order granting opportunity to the defendants to file documents under Order VIII, Rule 1A(3) CPC was in fact wholly uncalled for and, therefore, passing of the said order to that extent is of no consequence.

In view of the above discussion, the appeal filed by the appellant is allowed. The judgment dated 04.11.2008 passed by the Additional District Judge (Fast Track) No.5, Jaipur is set aside and the first appeal is restored back with a direction to the First Appellate Court to hear and decide the same within a period of four months from the date this order is placed before the said Court. The record of the trial court be returned back immediately to the First Appellate Court. The parties are directed to appear before the First Appellate Court on 04.10.2013. No costs.

(ARUN BHANSALI), J.

A.K. Chouhan/-

134

all the necessary corrections have been incorporated in the judgment/order.

Ashwini Kumar Chouhan P.A.

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Rajasthan High Court - Jaipur