Sri Sanjay Agarwal, vs M/S.Superbuild India P Ltd
2021 Latest Caselaw 1683 Tel

      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

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.

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

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.

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.

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.

AIR 1989 SC 162 = (1988) 4 SCC 619

2019 (2) ALD 225

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.

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

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

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