Patna High Court
Sachidanand Singh vs Smt. Tarawati Mishrain And Ors. on 5 May, 1992
Equivalent citations: AIR1992PAT164, AIR 1992 PATNA 164, (1992) 2 BLJ 109 (1992) 2 PAT LJR 195, (1992) 2 PAT LJR 195
Author: B.N. Agrawal
Bench: B.N. Agrawal
JUDGMENT Nagendra Rai, J.
1. The petitioner (defendant No. 2), has filed the present revision application against the order dated 11-3-1986, passed by the Subordinate Judge, Bhagalpur, in T.S. No. 250/83, by which he has rejected the prayer of the petitioner to lead evidence and to cross-examine the plaintiff's witnesses even on issues not relating to the defendants against ejectment qua tenant after his defence has been struck off on account of non-payment of arrears of rent and current rent within the time granted by the Court under Section 15(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act').
2. The facts giving rise to the present application are that the plaintiff (opposite party No. 1) filed a suit against the defendants including the petitioner for their eviction from the suit premises, for a declaration that the defendant first party is the tenant of the suit premises and the defendant second party Sub-tenant of defendant first party and also for a decree for the arrears of rent and arrears of electrical charges amounting to Rupees 2,149.30p.
3. The plaintiff's case, in brief, is that the suit premises, described in Schedules 'A' and 'B' of the plaint, belong to her. Defendant first party was inducted as tenant of the suit premises on a monthly rental of Rs. 100/- and the rent for every month was agreed to be payable on the expiry of the month within 5th day of succeeding month. He paid rent up to the month of April, 1980 only, for which rent receipts were granted on her behalf and thereafter he stopped paying rent from May, 1980 without any justification. Defendant first party shifted to Ranchi after sub-letting the suit premises, described in Schedule 'A', to defendant No. 2 on a monthly rental of Rs. 100/- and also the suit premises, described in Schedule 'B', to defendant No. 3 on a monthly rental of Rs. 50/- and, thus, he violated the terms and conditions of the tenancy by sub-letting the aforesaid property to the defendant second party. The defendant first party did not pay the electrical charges worth Rs. 2,149.30p. up to September, 1983, and also did not pay rent to the plaintiff from the month of May, 1980 to the month of April, 1983, but the plaintiff claimed the rent from the month of October, 1980 to the month of September, 1983, amounting to Rs. 3,600/-. Thus, the landlady claimed the eviction on the ground of non-payment of rent by the defendant first party as well as sub-letting of suit premises by him to the defendant second party.
4. The defendant-petitioner only filed the written statement and contested the claim of the plaintiff. According to his case, the defendant first party was never inducted as tenant by the plaintiff. The plaintiff inducted him as tenant of Schedule 'A' premises on a monthly rental of Rs. 100/- in November, 1980 and defendant No. 3 was inducted as tenant of Schedule 'B' premises on monthly rental of Rs. 75/- in the year 1976. The claim with regard to arrears of rent was denied and with record to claim of electrical' charges it was asserted that the sum given by the plaintiff is inflated one and that there is no connection since February, 1979. He is ready to pay half share of the correct charges.
5. During the pendency of the suit a petition under Section 15 of the Act filed on behalf of the landlady for a direction to the defendants to deposit the arrears of rent as well as current rent, By order dated 4-7-84 the Court below directed the defendant-petitioner to deposit arrears of rent from October, 1980 at the rate of Rs. 100/-in respect of Schedule 'A' premises within 15 days and the current rent by 15th of the following month. It was further ordered that the plaintiff would not be entitled to withdraw the amount till the disposal of the suit.
6. The petitioner aggrieved by the aforesaid order came to this Court in C.R. No. 1565/84, which was withdrawn on 6-5-1985. As the petitioner did not comply with the order dated 4-7-84 the Court below by order dated 16-12-85 ordered that the defence of the defendants-tenants be struck off.
7. On 18-1-1986, the petitioner filed a petition before the Court below stating, inter alia, that as he has been treated to be a tenant he can cross-examine the plaintiffs witnesses and lead evidence with regard to arrears of rent and as such he should be allowed to lead evidence and cross-examine', the plaintiffs witnesses on the point of arrears of rent. The plaintiff-opposite party filed a rejoinder on 31st March, 1986, wherein the right of the defendant-petitioner to cross-examine and lead evidence on the point other than defence against ejectment was challenged and it was asserted that the defendant-petitioner could not contest the suit on any of the grounds, as the defendant had not deposited the rent as per the order dated 4-7-1984.
8. The Court below, after hearing the parties by the impugned order rejected the petition of the petitioner and directed the plaintiff-opposite party to produce the witness,
9. The case was heard by the learned single Judge of this Court and at the time of dictating the judgment, his Lordship felt that the case should be referred to a Division Bench "for hearing and interpretation of the scope of Section 15 of the Act" and this is how this case is placed before us for hearing.
10. Learned counsel appearing for the petitioner contended that even after striking off the defence of the tenant for non-payment of arrears of rent as well as current rent, as ordered under Section 15(1) of the Act, the tenant is not precluded from adducing his own evidence and cross-examining the plaintiffs witnesses on the grounds other than the defence qua tenant against ejectment. In support of his submission he relied upon a Full Bench decision of this Court in the case of Mahabir Ram v. Shiva Shanker Prasad, AIR 1968 Pat 415. He further contended that even after the insertion of words in Section 15 to the effect that "further the tenant shall not be allowed to cross-examine the landlord's witnesses" the aforesaid Full Bench judgment still holds the field and, as a matter of fact, the said provision has been inserted to give effect to the aforesaid judgment. According to him even after the insertion of the aforesaid words in Section 15, there is no change in the law laid down by this Court with regard to the interpretation of Section 11A of 1947 Act and the tenant is not precluded from adducing his evidence and cross-examining the plaintiffs witnesses on the grounds other than his defence qua tenant against judgment. According to him, the Court below has acted illegally and with material irregularity in rejecting the prayer of the petitioner for not allowing him to cross-examine the plaintiffs witnesses and to adduce his own evidence on the point of arrears of rent and electrical charges, as it is open to the tenant to prove in the suit that, in fact, the rent and electrical charges are not in arrears.
11. Learned counsel appearing for the other side, on the other hand, submitted that there has been material change in the provisions of Section 11A of the Act of 1947 and Section 15 of the Act of 1982, which provides, inter alia, that "further the tenant shall not be allowed to cross-examine the landlords witnesses and as such the tenant is precluded from cross-examining the plaintiffs witnesses on any of the grounds of defence taken by him and not only with regard to his defence qua tenant against ejectment. He further submitted that the Full Bench judgment of this Court in Mahabir Ram's case (AIR 1968 Pat 415) (supra) was based on the provision of Section 11A of 1947 Act and the said decision is not applicable in the facts and circumstances of this case specially in view of the provisions of Section 15 of the Act. According to him, the Court below rightly rejected the prayer of the defendant-tenant, as the tenant is now precluded from cross-examining and adducing his evidence even on the grounds such as denial of the title of the landlord, arrears of rent etc.
12. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Act 3 of 1947) was enacted to regulate the letting of buildings and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom in the State. That Act was replaced by an Act of 1977 and again it has been replaced by the present Act of 1982 (i.e. Bihar Act No. 4 of 1983).
13. A tenancy is essentially based on and governed by an agreement or contract. The lease of immovable property is dealt with under Chapter V of the Transfer of Property Act. The lease comes into existence purely as a matter of contract under the Transfer of Property Act. The tenant under the Transfer of Property Act is liable to eviction after determination of his tenancy by issuance of notice. The Act has made an encroachment on the freedom of contract, as a result of which certain restrictions have been put on the landlords and tenants with regard to the rights and obligations arising out of the contract. Most of the provisions under the Act have been made for the benefit of the tenant. The tenant under the Act cannot be evicted at the sweet will of the landlord. He shall be liable to eviction only in execution of a decree passed by the Court on one or more of the grounds mentioned in Section 11(1) of the Act. Some of the provisions under the Act have been made for the benefit of the landlords for the simple reason that the equity and justice demand a fair play on the part of the legislature not to completely ignore the helpless situation of many of the landlords. Sections 14 and 15 of the Act have been enacted for the benefit of the landlords. Section 15 of the Act relates to deposit of the rent by the tenant in a suit for ejectment when a suit for eviction is filed against the tenant for his eviction on any of the grounds as mentioned in Section 11 of the Act. Section 15 of the Act imposes an obligation on the tenant to deposit the rent.
14. In the Act of 1947 there was no provision directing the tenant to deposit rent during -the pendency of the suit and the legislature with a view to provide remedy to the landlord against the defaulting tenant inserted Section 11A by Section 12 of the Bihar Act XVI of 1955. Section 11A of 1947 Act was replaced by Section 13 of 1977 Act and by Section 15 of the present Act.
15. For appreciating the points involved in the case, it is necessary to set out the provisions of Section 11A of the Act of 1947 and Section 15 of the Act of 1982, which are as follows:--
"Section 11A. Deposit of rent by tenants in suits for ejectment -- If in a suit for recovery of possession of any building the tenant contests, the suit, as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a, rate at which it was last paid and also the arrears, of rent, if any, arid the Court, after giving an. opportunity to the parties to be heard, may; make an order for deposit of rent at such rate as may be determined 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 any such date for any month by, the. fifteenth day of the next following month the Court shall order the defence against ejectment to he struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment/The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant."
"S. 15. Deposit of rent by tenants in suits for ejectment-
(1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment. Landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both of before and after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent-within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the, landlords witnesses.
(2) Tf in any proceeding referred to in Sub-section (1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in Court the amount payable by him under Sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.
(3) If the Court is satisfied that any dispute referred to in Sub-section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in Sub-section (1).
16. A bare reading of the aforesaid provisions will show that some changes and additions have been made in Section 15 of the Control. Act. In sub-sec. (1) of Section 15 it has been added that "further the Court shall not allow the tenant to cross-examine the landlords witnesses". Sub-section (2) provides that in case of dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit the rent in the Court and no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. Sub-section (3) provides that if the tenant raises a dispute as to the person/persons to Whom rent is payable and the Court is satisfied that the dispute raised by the tenant is based on false and frivolous reason then the Court may order the defence against the eviction to be struck off and will proceed with the hearing of the suit.
17. Section 11A came up for consideration before a Division Bench of this Court in the case of Nagina Ram v. B. P. Khemani, 1964 BLJR 197. From the facts of the cases It appears that during the pendency of the eviction suit against the tenant he was directed by the Court to deposit the arrears of rent. The tenant did not deposit the rent arid, therefore, the learned Munsif ordered that the defence of the petitioner should be struck off with regard to the claim of ejectment and thereafter the suit was fixed for ex parte hearing. The defendant challenged the aforesaid order in this Court on the ground that even if the defence against ejectment has been struck off a suit cannot be decided ex parte, he has right to cross-examine the witnesses produced on behalf of the plaintiff and to dispute the claim of the plaintiff for ejectment of the defendant from the house in question. This Court rejected the aforesaid stand taken on behalf of the defendant and held that "the learned Munsif was right in holding that the suit should be fixed for ex parte hearing and the petitioner was not entitled to cross-examine any witness who might be produced on behalf of the plaintiff". Again the scope of Section 11A came for consideration in the case of Chaturbhuj Mistry v. Jagan Ram, 1967 BLJR 44 and this Court held that once the defence was struck out in accordance with the provision of Section 11A of the Act that would also include the defendants' plea against the plaintiffs' title and asserting their own title This Court further held in that case as follows:--
".....In the written statement, the defendants raised a plea that they had title to the property, and the plaintiffs had no title over it. This was also in connection with the ejectment. If they would be permitted to lead evidence or prove their plea of title, that will be only in answer to the plaintiffs' claim of ejectment of the defendants from the suit houses. If the defence in regard to ejectment was struck out, that would also include the defendants' plea against the plaintiffs' title and asserting their own title. That part of the order was obviously wrong, and, therefore, Civil Revisions Nos. 1347, 1348 and 1349 of 1963 will have to be allowed, so far as the latter part of the impugned order is concerned."
18. The controversy as to the scope and meaning of Section 11A of the Act was set at rest by a Full Bench judgment of this Court in the case of Mahabir Ram (AIR 1968 Pat 415) (supra). The view taken in Chaturbhuj Mistry's case (supra), that if the defence with regard to ejectment was struck out then that will also include the defendants' plea against the plaintiffs title and asserting his own title, was not approved ,by the Full Bench. This Court in the said case held as follows (at p. 418 of AIR) :--
"....The emphasis throughout in this section is on the word "tenant" and whatever defences are open to him as a tenant against ejectment have to be struck out, in case of his failure to make the deposit under that provision. In other words, his defence qua tenants only would be struck out. If a defendant in a suit for his eviction on the grounds mentioned in Section 11 of the Buildings Control Act takes a defence that he was not the tenant of the plaintiff landlord and that the plaintiff had no title to the house in question and that he (defendant) was the owner of it, then that defence obviously is not in the capacity of a tenant, inasmuch as, there is a clear denial of the relationship of landlord and tenant."
It was further held in the said case that in a suit where the landlord has claimed arrears of rent, in that case, even after striking off defence against ejectment, it is open to the defendant to establish at the hearing of a suit that in fact the rent was not in arrear provided the suit is for the realisation of arrears of rent also.
19. Thus, it has been held in the said case that after the striking off the defence of the tenant against ejectment because of failure to deposit the rent as ordered by the Court under Section 11A of the Act, his defence as a tenant against ejectment is only struck out. It is still open for him to cross-examine and adduce evidence, on other defences, such as, the question of denial of title of the landlord, denial of relationship of landlord and tenant etc.
20. The Supreme Court had occasion to consider the scope of Section 11A in the case of Smt. Bela Das v. Samarundra Nath Bose, 1975 Pat LJR (HC) 212 : (AIR 1975 SC 398). From the facts of the aforesaid case it appears that the tenant in eviction suit took the plea that the landlord was not the absolute owner of the suit premises and there were some other landlords also of the premises in question. An order under Section 11A of the Act was passed by the Court against the tenant directing him to pay the arrears of rent and the current rent but in spite of the said order he defaulted in payment of rent and the defence was struck out by the trial Court and, thereafter, the suit was taken up for ex parte hearing. The learned Munsif decreed the suit ex part? and, ultimately, the matter came to this Court and this Court allowed the appeal relying upon the aforesaid case of Mahabir Ram (AIR 1968 Pat 415) (FB) (supra) and remitted the case back to the trial Court for afresh decision after allowing the opportunity to the parties to adduce evidence on the ground that since the defendant has not admitted the plaintiff to be his -/16/- annas landlord there was denial of relationship of landlord and tenant between the parties. The Supreme Court set aside the judgment of this Court and held as follows (at pp. 399-400 of AIR) :--
"The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more landlords of the premises in question, It was not a case of denial of relationship of landlord and tenant between the parties. In the case of Mahabir Ram (supra) the tenant had denied the title of the plaintiffs and set up a title in himself. In the instant case the plea of the defendant has been that the plaintiffs being landlords of the suit premises for a majority 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 dehors it. The striking out of the defence on July 8,1964 had the effect of striking out all defence raised by the defendant qua-tenant including his defence that the plaintiffs alone being co-sharer landlords were not entitled to maintain the suit for eviction....."
21. However, the question which falls for consideration in this case is as to whether the wordings of Section 15 of the Act of 1982 has made any change in the law laid down by this Court as well as by the Supreme Court, as mentioned above, with reference to Section 11A of 1947 Act. Except the aforesaid addition, as pointed out above, the wordings of relevant portion of Section 15 are the same as of Section 11A of l982 Act. In my opinion, the addition of the aforesaid words "further the Court shall not allow the tenant to cross-examine the landlords witnesses" in no way has made any change in law laid down by this Court and approved by the Supreme Court in Smt. Bela Das case (AIR 1975 SC 398) (supra). On the other hand, in my opinion, the legislature has given effect to the aforesaid judgment by making addition in Section 15 that the Court shall not allow the tenant to cross-examine the landlord's witnesses.
22. Section 15 was considered by a learned single Judge of this Court in the case of Champa Lal Sharma v. Smt, Sumita Maitra, 1989 Pat LJR 381, wherein it was held by his Lordship that even after the insertion of the aforesaid words the Court cannot debar the tenant to cross-examine the landlord's witnesses and adduce evidence with regard to his defence other than his defence qua-tenant. In paragraph 28 it was held as follows :--
"The question which arises for consideration in this case is whether the legislature by inserting the words "And further the Court shall not allow the tenant to cross-examine landlord's witnesses" intended to make the aforementioned Full Bench decision in Mahabir Ram's case (AIR 1968 Pat 415) (supra) ineffective and/ or inoperative. To my mind the answer is in the negative.
The legislature inserted the aforementioned sentences in Section 15 of the said Act, as I read it, ex abundant! cautela. The said words have not been inserted to render the judgment in Mahabir Ram's case inoperative."
In paragraph 34 it was held as follows:--
"It, therefore, logically follows that the defence, which are directed to be struck off are only such defences which he could raise only as a tenant and not otherwise. On the touchstone of these considerations the insertion of the words "and further the Court shall not allow the tenant to examine the landlord's witnesses" must be viewed. The very fact that the tenant is not being allowed to. cross-examine the landlords witnesses on the question of the relationship of landlord and tenant and as such if there arises a dispute as to whether the plaintiff is a landlord or not and whether a tenant is a tenant of the plaintiff or not or as to whether a defendant is a tenant of the plaintiff or not, the same may have to be decided without there being any material brought on record on the part of the defendant-tenant. In such a situation the defendant in his capacity other than a tenant of the plaintiff can certainly cross-examine the witnesses of the plaintiff, who is not his landlord. The power of the Court to direct striking off a defence has to be read as a whole and the last-sentence occurring in Section 15 of the said Act cannot be read in isolation. Such a reading of Section 15 of the said Act shall, in my opinion, violate the well known principles of construction of statute."
In paragraph 40 of the said judgment it was further held that:--
".....I am of the view, on a proper construction of Section 15 of the said Act it must be held that while defence of a defendant is struck off, the same only means his defence qua-tenant and not his other defences, which if permitted to be raised, would enable him to prove the substance of title in respect of the properties in suit in the plaintiff and/or absence of relationship of landlord and tenant by and between the plaintiff and himself."
23. 1 am in respectful agreement with the views expressed in the aforesaid case. The emphasis in this section is on the word "tenant" and "landlord". On failure of the tenant to deposit current rent as well as arrears of rent within the time granted by the Court, the Court has power to pass an order to strike out the defence against ejectment and further the Court shall not allow the tenant to cross-examine the landlord's witnesses. The true meaning of the words "defence against ejectment is the defence as the tenant. If there is any other defence against ejectment not in the capacity of tenant but otherwise, that would not be struck, off on failure of the tenant to deposit the current rent as well as arrears of rent.
24. Section 15 penalises the defendant for the fault on his part. After the defence against ejectment as tenant is struck off he is put in a position as if he had not defended the suit and he is further precluded from participating in the proceeding by way of cross-examining the landlord's witnesses. In my opinion, the legislature has inserted the words "further the Court shall not allow the tenant to cross examine the landlord's witnesses" with a view to penalise the tenant for not depositing the rent within the time granted by the Court. The true import of the aforesaid words are that the tenant is stopped from cross-examining the landlord's witnesses not only with regard to his defence qua-tenant against ejectment but also with regard to testing the veracity or showing the infirmity in the evidence of landlord's witnesses. If in a case for eviction the defence of the tenant is only qua-tenant and his defence is struck out then the Court shall fix the suit for ex parte hearing and the tenant shall not be permitted to cross-examine the plaintiffs witnesses on any point. It does not mean that when the suit proceeds ex parte, the Court will pass a decree for ejectment in all the cases, the plaintiff is still to prove his case to the satisfaction of the Court for the eviction of the tenants on any of the grounds mentioned in Section 11 of the Act. However, if the tenant has other ground of challenge than his defence qua-tenant against ejectment, such as denial of relationship of landlord and tenant, the tenant claiming title in himself etc. then in such a case even after the addition of the aforesaid words in Section 15, the same shall not preclude the tenant to cross-examine the landlord's witnesses on the said grounds. Any interpretation precluding the tenant from cross-examining the landlord's witnesses even on the ground other than the defence qua-tenant would be unreasonable and arbitrary for the simple reason that on the failure of the tenant to deposit the rent within time his defence as tenant is only struck out and not other defences. Stopping the tenant to cross-examine the plaintiffs witnesses with regard to the grounds or defence unconnected with the defence qua-tenant, in my opinion, would result in declaring the provision as ultra vires.
25. There is other reason to hold that the aforesaid words shall not preclude the tenant from cross-examining the plaintiffs witnesses with regard to defences other than his defence against ejectment qua-tenant. The aforesaid provision is a penal one. It is well settled that the penal provision is to be interpreted strictly. If there are two possible constructions then the Court must adopt the con struction which is more lenient one. The Supreme Court in the case of Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, while dealing with a penal provision under Bombay Rents, Hotel and Lodging House Rates (Control) Act (57 of 1947), held as follows:--
"The provisions of Section 18(1)of Bombay Act 57 of 1947 are penal in nature and it is a well settled rule of construction of penal statute's that if two possible and reasonable construction can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning on an expression used by the Legislature in order to carry out the intention of the Legislature (1946) AC 278."
26. If the aforesaid words are interpreted to mean that the tenant is completely stopped from cross-examining the plaintiffs witnesses even with regard to his all defences other than his defence qua-tenant, then that would put the tenant in a complete helpless position and, as a matter of fact, the tenant would be Crippled and the decree against him would be inevitable even if he has a good defence on the question of title etc. In my view, such was never the intention of the legislature specially when the main object of the Act is to give protection to the tenant against unreasonable eviction.
27. The learned counsel appearing for the petitioner in course of argument referred to the decision of the Supreme Court in the case of Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 and submitted that in view of the law laid down in the said case in spite of the insertion of the aforesaid words the tenant is entitled to cross-examine the plaintiff's witnesses with a view to point out the falsity and weakness of the plaintiffs case. From the said judgment it appears that the question for consideration in that case was Section 17(3) of the West Bengal Premises Tenancy Act (12 of 1956). According to the said provision, upon failure of the tenant to deposit the rent, as mentioned in Sub-sections (1) and (2) of Section 17, within the time specified or within the extended time as may be allowed under Clause (a) of Section (2A) or fails to deposit or pay any instalment permitted under Clause (b) of Section 2(A) Within the time fixed thereafter, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. In the said section there is no provision similar to Section 15 of the Act of 1982, wherein, the tenant is debarred from cross-examining the landlords witnesses after his defence has been struck out.
28. No doubt, the Supreme Court has held in the aforesaid case that the tenant is entitled to cross-examine the plaintiffs witnesses for the limited purpose of pointing out the falsity and the weakness of the plaintiff's case, the question is as to whether in view of the provision contained in Section 15 to the effect that the Court shall not allow the tenant to cross-examine the landlord's witnesses, it is still open to the defendant to cross-examine the witnesses on the aforesaid points.
29. In my opinion, the aforesaid observation was made by the Supreme Court with reference to the provisions of the West Bengal Tenancy Act. So far as Section 15 of Bihar Act is concerned, as pointed out above, the same has been enacted for the benefit of the landlord and the addition of the aforesaid words has been made purposely by the legislature with a view to prevent the tenant from unnecessarily delaying the case after the defence has been struck out. In my opinion, once the defence of the tenant is struck out on his failure to deposit the rent, all modes of his participation including his right to cross-examine the plaintiff's witnesses even for the limited object of pointing out falsity of the witnesses of the plaintiff are curtailed.
30. After considering the aforesaid submissions my conclusions are that if the defence of the tenant is struck out the tenant is stopped from adducing his own evidence and to cross-examine the plaintiffs witnesses with regard to his defence qua-tenant. He is also precluded from cross-examining the plaintiffs witnesses even for the limited purpose of showing the falsity and infirmity in the plaintiff's case in view of the addition of specific provision under Section 15 of the Act to the effect that the court shall not allow the defendant to cross-examine the landlord's witnesses. However, the tenant is not stopped from adducing his own evidence and to cross-examine the plaintiffs witnesses with regard to his defence other than qua-tenant against ejectment.
31. Coming to the facts of the present case apart from the decree for eviction and declaration of defendant No. 1 as tenant and defendants No. 2 and 3 as sub-tenants, the plaintiff has also prayed for arrears of rent and electrical charges. Prayer for arrears of rent and electrical charges in no way are connected with the defence against ejectment qua-tenant and, as such, the defendant is entitled to cross-examine the plaintiffs witnesses on the aforesaid points to show that there was no arrears of rent and electrical dues against him. He is also entitled to adduce evidence in support of his case on these points. The court below acted illegaly and with material irregularity in exercise of jurisdiction in disallowing the prayer of the petitioner to adduce evidence and cross-examine the plaintiffs witnesses on the points other than his defence against ejectment quar tenant.
32. In the result, this revision application is allowed and the impugned order is set aside. The petitioner is entitled to cross-examine the plaintiffs witnesses and also to adduce his own evidence on the points mentioned above.
33. In the facts and circumstances, there will be no order as to costs.
B.N. Agrawal, J.
34. I agree.