Writ Petition No.3375 of 2003

3rd November, 2004

Petitioner Counsel: Mr. A. S. CHANDURKAR
Respondent Counsel: Mr. L. B. AMBARKHANE

Cases Cited:
Ganpat Shankar Waghmare Vs. Smt. Anjalibai Rao Waghmare, 2001(3) ALL MR 149=2001(2) Mh.L.J. 756 [Para 2,10]
Suryabhan Ranuba Wagh Vs. Shobha Bhimrao Pawar, 2003(1) ALL MR 1070=2003(1) Mh.L.J. 512 [Para 2,10]
Modula India Vs. Kamakshya Singh Deo, AIR 1989 SC 162 [Para 9,15,16]
Paradise Industrial Corporation Vs. M/s. Klin Plastics Products, AIR 1976 SC 309 [Para 13]
M/s. Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, (1978)4 SCC 188 [Para 14,16]
Sangram Singh Vs. Election Tribunal, Kotah, AIR 1955 SC 425 [Para 17]
Rambhau Vs. Narayan, 1995 AIHC 5024 [Para 19]

JUDGMENT

V. C. DAGA, J.:- A reference is made by the learned Single Judge (A. S. Oka, J.) to resolve the conflict of opinions as to the nature and scope of the rights available to the defendant whose "defence has been struck out" is taken up for final hearing at the admission stage by consent of parties.

WHY REFERENCE :

2. In the case of Ganpat Shankar Waghmare Vs. Smt. Anjalibai Rao Waghmare, reported in 2001(2) Mh.L.J. 756 : [2001(3) ALL MR 149], learned Single Judge (Khanwilkar, J.) has taken a view that once defence is struck out under Order 39, Rule 11 of the Code of Civil Procedure (CPC for short) as amended by the Bombay High Court, the defendant in consequence thereof loses his right to cross-examine the plaintiff and his witnesses.

Whereas in the case of Suryabhan Ranuba Wagh Vs. Shobha Bhimrao Pawar, reported in 2003(1) Mh.L.J. 512 : [2003(1) ALL MR 1070] learned Single Judge (Dabholkar, J.) while considering the case of absence of written statement has ruled that the defendant cannot be denied right to participate in the process of hearing or cross-examining the plaintiff. The defendant although can be allowed to cross-examination witnesses, the scope of cross-examine cannot be permitted to travel beyond limited object of pointing out falsity or weakness of the plaintiffs case and in any case, it cannot be converted into presentation of defence theory.

3. The learned Single Judge (Oka, J.) having confronted with the above opposite views was required to pass an order directing placement of papers before the learned Chief Justice as required by rule 7 of Chapter 1 of the Appellate Side Rules for resolving the conflict by a larger Bench.

4. In view of the contradictory views expressed by the learned Judges, the learned Chief Justice was pleased to refer to this Court the following question for decision:-

"Whether a defendant whose defence has been struck out under Rule 11(1) of Order XXXIX of Code of Civil Procedure has a right to cross-examine the plaintiff and the witnesses examined by him ?"

FACTUAL RESUME :

5. The short factual resume required for answering the reference is as under :-

6. The petitioner is a Defendant in Civil Suit No.226 of 1999 filed by the respondent (plaintiff) in the Court of Civil Judge, Senior Division, Akola. In is not in dispute that the defence of the petitioner was struck out by the learned trial Judge vide its order dated 10-12-2002 and also by another order dated 16-6-2003, both orders were passed in exercise of powers under rule 11 of Order 39 of the Code of Civil Procedure, 1908.

7. The petitioner (defendant) made an application at Exhibit-45 contending that though his defence has been struck out, he has a limited right to cross-examine the respondent and her witnesses. A prayer, accordingly, was made for recalling respondent and her witnesses for cross-examination. The trial court by an order dated 16-8-2003, which was the subject matter of challenge before the learned Single Judge, rejected the application at Exhibit-45 seeking to recall witnesses of the plaintiff for cross-examination. One of the grounds of rejection as given by the learned trial Judge is that the defence of the petitioner has already been struck out.

8. This order of the learned Trial Court was a subject matter of challenge before the Learned Single Judge in a writ petition filed under Article 227 of the Constitution of India.

9. The learned counsel appearing for the petitioner while challenging the order in a writ petition filed before the learned Single Judge has relied upon the judgment in the case of Suryabhan Ranuba Wagh Vs. Shobha Bhimrao Pawar (cited supra) wherein the learned Single Judge has held that in absence of written statement no conclusion can be drawn that the proceedings are ex-parte. The leaned Single Judge in that case held that the defendant could be allowed to cross-examine the witnesses of the plaintiff. However, the scope of cross-examination being limited, cross-examiner cannot be permitted to travel beyond the limited object of pointing out falsity or weakness of plaintiffs' case but in no case it can be converted into presentation of defence theory. This view of the learned Single Judge is based on the Apex Court judgment in the case of Modula India Vs. Kamakshya Singh Deo, reported in AIR 1989 SC 162.

10. In order to counter the aforesaid submission of the learned Single Judge in the case of Suryabhan Ranuba Wagh Vs. Shobha Bhimrao Pawar (cited supra) another judgment delivered by the learned Single Judge (Khanwilkar, J.) taking contrary view in the case of Ganpat Shankar Vs. Smt. Anjalibai Rao and another (cited supra) was pressed into service; where it has been held that as a consequence of the defence of the defendant having been struck out under Order 39, Rule 11(1) of the CPC, the defendant loses right to cross-examine the plaintiff and his witnesses.

11. The aforesaid conflicting views canvassed before Learned Single Judge were also reiterated and pressed into service before us by the counsel appearing for the rival parties in support of their rival contentions.

STATUTORY PROVISION :

12. Having heard rival views, it is necessary to consider as to what is the effect of striking out the defence. In order to consider this issue, it is necessary to have a look to the relevant provisions which permit the Court to strike out defence. One of such relevant statutory provisions is under rule 21 of Order 11, which reads as under :-

"21. Non-compliance with order for discovery. - (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, he liable to have his suit dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.

(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action."

Order 39, Rule 11 (Bombay Amendment) is also relevant which reads as under :-

"11. Procedure on parties, defying orders of Court and committing breach of undertaking to the Court - Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention of breach is committed by the defendant or the opponent.

2. The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Curt.

Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed."

CONSIDERATION :

13. It is necessary to dissect the aforesaid provisions in order to consider as to what is the effect of striking out defence. Whether the defendant is completely precluded from participating in the proceeding or can he still cross-examine the plaintiff's witnesses and show that on the basis of his own evidence the plaintiff is not entitled to a defence. In Paradise Industrial Corporation Vs. M/s. Klin Plastics Products, reported in AIR 1976 SC 309, the effect of striking out defence has been considered by their Lordships of the Supreme Court in the following words :-

"Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff's 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 placed at a grater disadvantage."

The aforesaid case was under the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947. It makes it clear that even if defence is struck out the defendant is entitled to appear, cross-examine plaintiff's witnesses and point out that even on the evidence produced by the plaintiff he is not entitled to a decree.

14. The Apex Court in the case of M/s. Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, reported in (1978)4 SCC 188 also had an occasion to consider the provisions of Order 11, Rule 21 and observed as under :-

"It was further contended that the High Court was in error in observing that in view of the clear language of Order XI, Rule 21 the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant be placed in the same position as if he has not defended. This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh Vs. Election Tribunal AIR 1955 SC 425 it was held that if the court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff's suit. Every judge in dealing with an ex-parte case has to take care that the plaintiff's case is, at least, prima facie proved."

15. The Apex Court in Modula India Vs. Kamakshya Singh Deo (cited supra) also had an occasion to examine the case whether the tenant can exercise power conferred by section 17(4) of the W.B. Premises Tenancy Act (12 of 1956).

The question before the Apex Court was whether after striking out the defence, the defendant was still entitled to cross-examine plaintiff's witnesses and address argument on basis of plaintiff's case. The Apex Court considered the law on this aspect and observed at page 175 of the report as under :-

"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 aspect including the demolition of the plaintiff's case by the cross-examination of his witnesses, it 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 considered satisfactory or valid unless it is tested by cross-examination. 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 plaintiff's evidence cannot be acted upon. Looked at from the 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 forward by the plaintiffs is not sufficient to fulfill the terms of the statute."

The Apex Court on the same page 175 proceeded to observe as under :

"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, in spite 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."

16. In view of the aforesaid three judgments referred to herein above, which are still holding the field, the issue sought to be referred to us is no more res integra. However, it appears that the judgment of the Apex Court in the case of M/s. Babbar Sewing Machine Company Vs. Trilok Nath Mahajan & Modula India Vs. Kamakshya Sing Deo (cited supra) were not brought to the notice of the learned single Judge (Khanwilkar, J.) when the case of Ganpat Shankar Waghmare Vs. Smt. Anjalibai Rao Waghmare was argued before him. In view of the judgments of the Apex Court referred to herein above, the question, referred to us is no more open for debate.

17. It will not be out of place to make a reference to the case of Sangram Singh Vs. Election Tribunal, Kotah, reported in AIR 1955 SC 425 in which it has been held as under:-

"A Code of procedure must be regarded as such. It is 'procedure' something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to both sides), lest the very means designed for furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our law of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

18. In the case at hand, it is true that the written statement of the defendant was struck out. It simply means that he was not entitled to press his pleas and might not even be entitled to adduced evidence. But that could not prevent him from cross-examining the plaintiff and his witnesses and from showing that on the basis of the material on record, the plaintiff was not entitled to any decree. The striking out defence does not necessarily mean that the plaintiff's suit should automatically stand decrees. The learned trial Court was, therefore, wrong in holding that, Exhibit-45, seeking to recall the witnesses of the plaintiff for cross-examination, was not maintainable or that the defendant was not entitled to participate in the proceedings for want of his defence on record.

19. So far as the view taken by the learned Single Judge (Shirpurkar, J.) in the case of Rambhau Vs. Narayan and others reported in 1995 AIHC 5024 holding that as a consequence of striking out defence of the defendant was that he was not entitled to examine his witnesses in respect of the defences raised by him is in consonance with the views taken by the Apex Court referred to herein above.

20. On the above canvas, the view taken by the learned Single Judge (Khanwilkar, J.) cannot be said to be a good law. Reference stands answered accordingly.

21. Now, it is necessary to hear and decide the substantive writ petition No.3375 of 2003 on its own merits in this view of the matter, we direct the Registry to place this petition for further hearing on merits thereof before the learned single Judge dealing with the subject matter involved in the petition.

Order accordingly.