Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 557 (PNJ)

Sewa Singh v. Anil Kumar

2000-05-24

S.S.SUDHALKAR

body2000
Judgment S.S.Sudhalkar, J. 1. The petitioner has filed eviction petition against the respondent in the Court of Rent Controller. On 18.4.1998, the Rent Controller had passed the following order :- "Written statement again not filed. Counsel for the defendant has availed several opportunities for written statement. Hence defence of the defendant is struck off. For evidence of the petitioner to come up on 6.8.1998". 2. Thereafter on 1.2.1999, the Rent Controller passed the following order :- "Respondent served for today through Munadi but respondent has not come present as such respondent is proceeded ex-parte. One AW already examined and closed the case. Now for consideration to come up on 20.2.1999." 3. Thereafter the respondent filed an application for setting aside the ex- parte order and on 20.2.1999 the Rent Controller passed the following order :- "Counsel for the respondent had laid applications on 9.2.1999 for setting aside ex-parte order dated 1.2.1999. To come up for reply and consideration on 6.3.1999." 4. On 24.5.1999, the counsel for the petitioner has made a statement that there is no objection if the ex-parte order dated 1.2.1999 is set aside. The Rent Controller passed the impugned order dated 29.5.1999. It is a short order. It can be re-produced as below : "In view of the statement of the counsel for the applicant recorded on 24.5.1999, ex-parte proceedings are hereby set aside subject to Rs. 200/- as cost. For filing writing (written ?) reply and payment of cost, now case is adjourned to 12.6.1999." 5. The petitioner has come in revision challenging the order dated 29.5.1999. According to the counsel for the petitioner, `set aside of ex-parte proceedings does not mean right to file written statement and if the defence is struck off the said order cannot be revived by setting aside the order to proceed ex-parte. Learned counsel for the petitioner has relied on the case of Modula India v. Kamakshya Singh Deo reported in AIR 1989 Supreme Court 162 : 1988(2) RCR(Rent) 530 (SC). It has been held by the Supreme Court that if the defence is struck off the defendant is entitled to cross-examine the plaintiffs witnesses and address arguments on the basis of plaintiffs case. It has been observed on page 175 of the judgment that in such cases the defendant should be allowed to cross-examine an adverse argument but this right should be subject to some important safeguards. It has been observed on page 175 of the judgment that in such cases the defendant should be allowed to cross-examine an adverse argument but this right should be subject to some important safeguards. Firstly, the defendant cannot be allowed to lead his own evidence. Secondly, the latitude that may be extended by the Court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff and the Court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding, the plaintiff is not taken by surprise or gravely prejudiced. 6. The learned counsel for the respondent has drawn my attention to the various orders passed before 18.4.1998 by the Rent Controller. The first order before 18.4.1998 is that of 2.3.1998. On that date lawyers were on strike. Written statement was not filed and it was ordered that it be filed on 18.4.1998. The orders produced also show that the matter was pending for filing the written statement and there was no mentioning that the right to file the written statement was closed or that defence was struck off. Counsel for the respondent further argued that the mention in the order dated 18.4.1998 that the defence is already struck off does not disclose the correct position and therefore, he had no opportunity to challenge any other order because there was no such order. Counsel for the petitioner argued that the word `availed appears to have been written by mistake in the order. However, the fact is that before the order dated 18.4.1998, defence was not struck off and while passing the impugned order dated 29.5.1999, Rent Controller ordered that the case would come up for filing written statement and payment of costs as ordered in the said order (supra). 7. From a reading of the various orders in the order sheet which are in the record of the trial Court, it is found that there are no orders specifically passed for striking off the defence. In view of the impugned order it will be hazardous to presume that the defence was struck off on 18.4.1998. This being the position, there is no infirmity in the impugned order. This revision petition deserves to be dismissed and is dismissed as such. Record of the Rent Controller be returned forthwith. In view of the impugned order it will be hazardous to presume that the defence was struck off on 18.4.1998. This being the position, there is no infirmity in the impugned order. This revision petition deserves to be dismissed and is dismissed as such. Record of the Rent Controller be returned forthwith. Parties are directed to appear before the Rent Controller on 12.6.2000. Revision dismissed.