MODULA INDIA versus KAMAKSHYA SINGH DEO

Citation: [1988] SUPP. 3 S.C.R. 333 · Decided: 27-09-1988 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Case Allowed

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Judgment (excerpt)

MODULA INDIA 
A 
v. 
KAMAKSHYA SINGH DEO 
SEPTEMBER 27, 1988 
[SABYASACHI MUKHARJI ANDS. RANGANATHAN, JJ.] 
B 
West Bengal Premises Tenancy Act, 1956-Section 17(3) of-
Nature and scope of rights of defendant whose defence is struck out in a 
suit for possession. 
The respondent filed a suit in the High Court for a decree direct-
C 
ing the defendant (appellant) to deliver possession of certain premises. 
The appellant-tenant filed its written statement. During the pendency of 
the suit, orders were passed directing the appellant tenant to deposit 
certain sums in Court. The tenant made an application for permission 
to deposit the arrears of rent in monthly instalments alongwith the 
current rents. No orders were passed on this application on the ground D 
of its being out of time. Subsequent to the disposal of this application, 
the defence of the tenant was struck out under section 17 of the Act. The 
tenant/appellant moved this Court. 
Allowing the appeal, the Court, 
HELD: A provision as in s. 17(4) is a provision in terrorem. The 
Court will act with circumspection before striking out the defence of a 
tenant under this provision. This Court has interpreted provisions like 
this in rent acts to say that striking out defence is not obligatory on the 
Court merely because there is a default and that it is a matter for 
exercise of great restraint. But it does not necessarily follow that once 
the defence is struck off, the defendant is completely helpless and his 
conduct of the case· shouid be so crippled as to render a decree against 
him inevitable. To hold so would be to impose on him a punishment 
disproportionate to his default. [356B-D] 
. 
Provisions of this type should be construed strictly and the dis-
abilities of a person in default should be limikd to the minimum extent 
consistent with the requirements of justice. This should be all the more 
so in the context of tenancy legislation, the main purpose of which is to 
confer protection on the tenants against eviction by the landlord, unless 
certain statutory conditions are fulfilled. The provisions should not be 
given any wider operation than could have been strictly intended by the 
legislature. [356E-F] 
333 
E 
F 
G 
H 
334 
SUPREME COURT REPORTS 
[ 1988] Supp. 3 S.C.R. 
In truth and substance, the plea regarding the validity of the 
A notice has invariably to be taken as a plea in defence in such suits. The 
rule is really an exception to the strict application of a rule that a tenant 
whose defence is struck out cannot be heard at all against the plea of 
ejectment. [356H; 357 Al 
B 
Full effect should be given to the words that defence against eject-
ment is struck off. But while it is true that, in a broad sense, the right of 
defence takes in all aspects including the demolition of the plaintiff's 
case by cross-examination of his witnesses, it is equally correct that the 
cross-examination of the plaintiff's witnesses really constitutes a finish-
ing touch which completes the plaintiff's case. No oral testimony can be 
C considered satisfactory or valid unless it is tested by cross-examination. 
Mere slatement of plaintiff's witnesses cannot constitute plaintiff's evi-
dence unless it is tested by cross-examination. The right of defence to 
cross-examine plaintiff's witnesses can 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. Thus it should be possible 
D 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 that the 
plaintiff's witnesses are not speaking the truth or that the evidence put 
. forward by theplaintilfisnotsuftident to ful6I thetennsofthestatote. [357B-D) 
The basic principle that where a plaintiff comes to court he must 
E prove his case should not be whittled down even in a case where no 
defendant appears. [357E] 
F 
The defendant should be allowed his right of cross-examination 
and arguments. This ri~ht should be subject to certain important 
safeguards. [357H; 358A] 
First, the defendant cannot be allowed to lead his own evidence. [358A) 
Secondly, if cross-examination is permitted of the plaintiff's 
witnesses by the defendant whose defence is struck off, procedural 
chaos may result unless great care is exercised and it may be very 
G difficult to keep the cross-exa;nination within limits. But this is a diffi-
culty of procedure rather 

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