HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
CIVIL REVISION PETITION NO.753 OF 2021
O R D E R:
This Revision is filed under Article 227 of the Constitution of India challenging the action of the III Additional Chief Judge, City Civil Court, Hyderabad in directing the parties to proceed with hearing of I.A.No.678 of 2019 filed by the respondent/defendant after the respondent's/defendant's defence was struck off and after completion of the cross-examination of the petitioner/plaintiff/P.W.1.
2. The petitioner had filed O.S.No.69 of 2017 on 08.12.2016 against the respondent for eviction of the respondent from the suit schedule property and for recovery of arrears of rent of Rs.79,63,802/-, damages for Rs.5,00,000/- per month from 23.12.2016 till handing over of the vacant physical possession of the suit schedule property, mesne profits and costs.
3. Along with the suit, the petitioner had filed I.A.No.1582 of 2017 invoking Order XV-A CPC and sought a direction to the respondent to deposit arrears of rent of R.1,03,75,334/-.
4. After contest, the said I.A. was allowed on 29.04.2018 by the Court below and a direction was given to the respondent to deposit arrears of rent of Rs.58,75,000/- by 31.08.2018 and to continue to deposit every month rent thereafter, and time of 15 days was granted to pay the 2 arrears of rent with a default clause that if the said amount is not deposited, the defence of the respondent would be struck off.
5. This was questioned by the respondent before this Court in C.R.P.No.6356 of 2018 contending that there was a dispute about arrears of rent owed by the respondent to the petitioner herein; that though the petitioner was claiming that the total amount due was Rs.58,75,000/-, the respondent had been depositing rent which was apparent from certain documents filed by the respondent along with the written statement, although the petitioner denied about the issuance of these receipts towards payment.
6. This plea of the respondent was accepted by this Court and by order dt.23.11.2018, the CRP was allowed; the order dt.24.09.2018 passed in I.A.No.1582 of 2017 was set aside; and the Court below was directed to decide the issue with regard to amount payable by the respondent herein to the petitioner on the basis of evidence led by parties.
7. It was stated that till the said issue was decided, the respondent's defence cannot be struck off and while the said issue was decided, the respondent should continue to pay monthly rent to the petitioner on or before 7th day of each month.
8. Thereafter the Court below posted the matter for recording the petitioner's evidence in I.A.No.1582 of 2017 and chief-examination affidavit of P.W.1 was filed and Exs.P1 to P3 were marked and the matter was posted for cross-examination of P.W.1. 3
9. At that time, learned counsel for the respondent filed a memo objecting to recording of the evidence in I.A.No.1582 of 2017 contending that the orders in the said I.A. were set aside and the C.R.P.No.6356 of 2018 had been disposed of, and the Court below would have therefore to pass appropriate orders only in the suit.
10. The Court below then passed a docket order on 01.07.2019 stating that the High Court had directed to decide the issue with regard to amount of arrears of rent payable by the respondent to the petitioner on the basis of evidence led by both parties; that the said direction would mean that the High Court intended recording of evidence by both parties in I.A.No.1582 of 2017 itself; and since the petitioner had filed chief- examination affidavit in I.A.No.1582 of 2017 on 25.04.2019, the respondent should cross-examine P.W.1. It also recorded that the respondent had not complied with the direction contained in the order dt.23.11.2018 in C.R.P.No.6356 of 2018 directing the respondent to deposit the rent every month.
11. In view of non-cooperation by the respondent with regard to cross- examination of P.W.1 in I.A.No.1582 of 2017, and since there was no Revision filed by the respondent against the docket order passed by the Court below on 01.07.2019 in O.S.No.69 of 2017 intending to record the evidence in I.A.No.1582 of 2017 itself, the Court below proceeded to pass orders in the I.A.No.1582 of 2017.
12. It then took note of the chief-examination of P.W.1, marking of Exs.P1 to P3 and recorded that there was no evidence let in by the 4 respondent, and that both parties had filed memos showing calculations about arrears of rent.
13. It then proceeded to pass an order on 25.02.2020 strangely dismissing I.A. after holding that the respondent has to pay Rs.14,66,288/-, which was the undisputed amount arrived by the Court below.
14. Challenging the same, the petitioner filed C.R.P.No.759 of 2020.
15. The said CRP No.759 of 2020 was allowed on 06.10.2020 directing the respondent to deposit Rs.15,00,000/- covered by Exs.R14 and R15 to the credit of the suit along with arrears of rent calculated at Rs.1,37,500/- per month from 01.12.2019 till the date of disposal of the CRP within two (2) weeks from the date of receipt of a copy of the order, if not already paid to the petitioner. On failure to deposit the same, this Court directed that the defence of the respondent in O.S.No.69 of 2017 shall stand struck off.
16. The respondent/defendant failed to comply with the order dt.06.10.2020 in C.R.P.No.759 of 2020 and so the Court below struck off the defence of the respondent/defendant vide order dt.06.10.2020 in C.R.P.No.759 of 2020.
17. Thereafter, the Court below appointed an Advocate Commissioner to record cross-examination of the plaintiff/P.W.1. The cross- examination was conducted on 15.02.2021 and report was filed by the Advocate Commissioner on 17.02.2021.
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18. Thereafter, instead of proceeding to deliver judgment, the Court below proceeded to hear I.A.No.678 of 2019 filed by the respondent under Order XVI Rules 1, 2, 3 CPC filed in O.S.No.69 of 2017 to summon a witness from Bank of India, Mumbai with regard to four (4) documents, i.e., (a) Memorandum of deposit of title deeds dt.12.12.2014,
(b) Memorandum of deposit of title deeds by constructive delivery dt.18.12.2014, (c) Supplementary Memorandum of Entry executed on 22.01.2015 regarding extension of equitable security by giving oral assent for constructive delivery of title deeds, creation of equitable security by deposit of title deeds in respect of immovable properties and creation of charge of Bank of India as collateral security, and (d) Deed of Reconveyance dt.01.02.2018.
19. This prayer was made by the respondent contending that the rights of the petitioner/plaintiff stood transferred to the petitioner's lender, Bank of India, and the rights would not be redelivered or released until the whole of the monies, indebtedness and liability of the petitioner to the said lender, intended to be secured by the security/charges by the original deposit/delivery of the title deeds of the suit schedule property, is discharged.
20. Thus, it is clear that the examination of the said witness in IA No.678 of 2019 was sought by the respondent to set up a new defence to the suit for recovery of possession filed by the petitioner against the respondent.
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21. The petitioner contended that the documents referred to above were already received by the Court below and were marked in the cross- examination in spite of objections raised by the counsel for the petitioner/plaintiff, but still the respondent/defendant is insisting the Court below to hear I.A.No.678 of 2019 even though the said I.A. is not maintainable because once the defence of the respondent/defendant is struck off, the respondent/defendant is not entitled to lead any evidence of his own, nor can his cross-examination of plaintiff's witnesses be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the petitioner's/plaintiff's case.
22. Counsel for the petitioner placed reliance on the judgment of the Supreme Court in Modula India v. Kamakshya Singh Deo1 and also the judgment of the High Court of Telangana and Andhra Pradesh at Hyderabad in Deepa Sharma v. Navneet Rai2.
23. Counsel for the respondent did not dispute that the cross- examination of P.W.1 had been concluded on 15.02.2021 and the Advocate Commissioner who recorded the cross-examination of P.W.1 had filed his report on 17.02.2021.
He however sought to contend that he is entitled to pursue I.A.No.678 of 2019 filed by the respondent in support of his client's defence that the petitioner/plaintiff transferred his right in the property to Bank of India from whom he had borrowed money and so the petitioner/plaintiff had no right over the property. 1 AIR 1989 SC 162 = (1988) 4 SCC 619 2 2019 (2) ALD 225 7
24. In Modula India (1 supra), the Supreme Court had considered to what extent the defendant has rights in the trial of the suit once his defence is struck off.
It observed that even if the defence of the defendant is struck off, the right to cross-examine the plaintiff's witnesses ought to be permitted in order to enable the defendant to demonstrate to the Court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute applicable.
It however held that there are certain safeguards to be followed and that the first of the safeguards was that the defendant cannot be allowed to lead his own evidence nor try to substantiate his own case. Secondly, it also observed that great care is to be exercised to keep the cross- examination within certain limits and the defendant cannot put questions in the cross-examination to substantiate pleas in defence which the defendant may have in mind. Thirdly, it was held that no prejudice should be allowed to be caused to the plaintiff and the plaintiff ought not to be taken by surprise by allowing such cross-examination. It held that when the defence of a tenant against delivery of possession is struck off, the defendant/tenant would only be entitled to cross-examine the plaintiff's witnesses and to address arguments on the basis of the plaintiff's case and he 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 weaknesses of the plaintiff's case. 8 It held that in no circumstances, should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.
25. This principle was reiterated by a learned Judge of this Court in Deepa Sharma (2 supra).
26. In the light of this settled legal position, it is surprising that the Court below adjourned the matter eight (8) times to 04.03.2021, 12.03.2021, 17.03.2021, 23.03.2021, 25.03.2021, 30.03.2021, 09.04.2021 and 20.04.2021 for hearing I.A.No.678 of 2019 when there is specific prohibition for the defendant to introduce any new documents/evidence in view of the above judgments.
27. In this view of the matter, I strongly deprecate the attitude of the Court below in not proceeding to pass judgment in the suit O.S.No.69 of 2017 after considering the evidence on record, i.e., the evidence of P.W.1 which has been subjected to cross-examination, and instead, allowing the defendant, whose defence has been struck off, to adduce not only documentary evidence but also oral evidence by summoning an employee of Bank of India, Mumbai to give evidence.
28. In this view of the matter, the Civil Revision Petition is allowed; in exercise of power of this Court under Article 227 of the Constitution, I.A.No.678 of 2019 in O.S.No.69 of 2017 on 08.12.2016 filed by the respondent is dismissed in limine as not maintainable; and the III Additional Chief Judge, City Civil Court, Hyderabad is directed to 9 proceed to hear arguments of the parties and decide the suit within four (4) weeks from the date of receipt of a copy of this order.
29. It shall also keep in mind the principle laid down in the above decisions that the defendant will not be allowed to produce any evidence and so it shall eschew from consideration any portion of the cross- examination of P.W.1 which refers to the documents mentioned above. The respondent shall pay costs of Rs.50,000/- to the petitioner within four weeks.
30. Pending miscellaneous petitions, if any, in this CRP shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J Date: 21-06-2021 Svv