HIGH COURT OF JUDICATURE AT ALLAHABAD ?Judgment reserved on 14.03.2011 Judgment delivered on 04.07.2011 Court No. - 30 Case :- CIVIL REVISION DEFECTIVE No. - 80 of 2009 Petitioner :- Abdul Jalil Respondent :- Jalil Beg & Others Petitioner Counsel :- Ajit Kumar Respondent Counsel :- Khursheed Alam And Case :- CIVIL REVISION No. - 387 of 2009 Petitioner :- Abdul Jalil Respondent :- Jalil Beg & Others Petitioner Counsel :- Ajit Kumar Respondent Counsel :- Khursheed Alam Hon'ble Sibghat Ullah Khan,J.
Both these revisions have been filed by the plaintiff-landlord.
In this case on 14.03.2011 when arguments were heard and judgment was reserved, the following order was passed:-
" Heard learned counsel for the parties at length.
The only point involved in these revisions, according to learned counsel for both the parties, is as to whether in a suit where written statement has not been filed by the defendant, defendant can be permitted to lead the evidence after the evidence of the plaintiff is over. Certain authorities have been cited by learned counsel for both the parties. However, there is no authority which directly deals with the point in question.
Accordingly, judgment is reserved. However, if any of the learned counsel is able to find out some direct authority photo state copy of the same may be supplied within a week."
The first civil revision is directed against the order dated 23.05.2009 passed by J.S.C.C/A.D.J. Court No.3 Allahabad in S.C.C. Suit No.22 of 2002 Abdul Jalil Vs. Jalil Beg rejecting the plaintiff's application no. 139-C. Second Revision is directed against order dated 14.09.2009 through which application for review/ recall of the order dated 23.05.2009 was rejected. Both these revisions have been filed on the same date i.e. 03.10.2009. 43 days delay in filing the first revision is condoned as the cause shown is sufficient.
The suit has been instituted by the petitioner- landlord against the tenant Jalil Beg, for eviction from a house. The defendant filed the written statement beyond the date fixed for the same. Plaintiff filed an application praying that defendant must not be permitted to lead evidence. Through an earlier order dated 28.04.2009, the trial Court had permitted the defendant to adduce evidence. The gist of the finding of the trial court in the impugned order dated 23.05.2009 is quoted below:-
"In the present case the defence of the defendants is not struck off, but it is also true that the W.S. filed by the defendants beyond the time fixed by Hon'ble High Court has not been taken on record implying that there is no W.S. of defendants and no case of defence. The case is not proceeding ex parte against the defendants."
Defendant had contended that he had deposited the entire amount of rent alleged to be due on the first date of hearing hence he was entitled to the benefit of Section 20(4) of U.P. Act No.13 of 1972.
The trial Court held that defendant could only adduce evidence on legal points which would not prejudice the interest of the plaintiff in any manner. The trial Court referred to the authority reported in Modula India Vs. Kamakhya Singh A.I.R. 1989 S.C. 162. In that case defence had actually been struck off by a positive order.
The tenant Jalil Beg died on 22.06.2003 and was substituted by his legal representatives. The relief claimed was for eviction from the house in dispute bearing No. D-903 G.T.B. Nagar, Karely Allahabad and for recovery of arrears of rent of Rs.21,280/- and other amounts including water tax etc. Total amount sought to be recovered was Rs. 34,490/-.
The suit was decreed ex parte on 14.10.2005. Thereafter, restoration application was filed. According to the plaintiff-landlord he agreed for restoration hence on 11.11.2005 ex parte decree dated 14.10.2005 was set aside. The suit was again decreed ex parte on 09.03.2007. Restoration application was filed on 16.05.2007 which was rejected on 21.08.2008 against which civil revision no.98 of 2008 was filed before this Court which was allowed on 12.09.2008. Through the said order ex parte judgment and decree was set aside and defendant was directed to file W.S. on 18.09.2008. The said order was also passed on the agreement of the parties. Order dated 21.08.2008 rejecting the restoration application of the tenant was set aside with cost of Rs.2000/- and it was directed that the suit be decided expeditiously within a period of four months. Further, parties were directed to appear on 18.09.2008 before the trial Court on which date it was directed that the cost of Rs.2000/- should be deposited and written statement should be filed which should be accepted without any objection of period of limitation under order 8 Rule 1 and 10 C.P.C.
On 18.09.2008, the trial Court on the adjournment application of defendant passed an order that even though ground for adjournment was not sufficient still in the interest of justice it was accepted on payment of Rs.300/- as cost and the W.S. should be filed on 05.10.2008. On 06.10.2008 W.S. was filed. Thereafter landlord filed an application for recall of the order dated 18.09.2008. The said application was allowed on 23.01.2009 and order dated 18.09.2008 permitting the defendant to file W.S. by 05.10.2008 was recalled. Against the order dated 23.01.2009 tenant filed Civil Revision No.60 of 2009. I dismissed the revision on 23.03.2009.
In the aforesaid authority of Modula India, the Supreme Court has held that even if defence has been struck off still defendant shall be permitted to cross examine the witnesses of the plaintiff.
Even though refusal to accept the written statement does not amount to striking off the defence still defendant cannot be permitted to adduce evidence for the reason that evidence can be adduced to prove the pleaded facts and in the absence of pleading (W.S.), this exercise will be futile. No amount of evidence can be looked into unless there is corresponding pleading for the same.
Accordingly, impugned orders permitting the tenant to adduce evidence even though his written statement has been directed not to be taken on record/ accepted are erroneous in law and without jurisdiction.
However, the question is as to whether defendant can be permitted to assert that he had deposited the entire required amount on the first date of hearing as required by Section 20(4) of the Act hence decree for eviction should not be passed against him? In my opinion, such a plea cannot be said to be a plea in defence. It is statutory requirement as provided under Section 20(4) of the Act and no evidence is required to prove the deposit as details of the deposits are always available on the file of the suit.
Accordingly, both the revisions are allowed. Impugned orders are set aside. Both the parties are directed to appear before the trial Court on 11.08.2011 on which date arguments must be heard by the Court concerned. If due to any reason, on the said date the arguments are not heard, one more date for the said purpose may be fixed by the Court. If the tenant is able to prove that he had deposited the entire amount required to be deposited under Section 20(4) of the Act on the first date of hearing then benefit of the said Section shall be given to him.
Order Date :- 4.7.2011 vks