ivil Appeal No 3740 of 1988
From the Judgment and Order dated 771988 of the Patna High Court in CR No 167 of 1988
Dr Shankar Ghosh and D P Mukherjee for the Appeliant
HKPuri for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
The appeal is disposed of by the judgment herein
This is an appeal from the judgment and order of the High Court of Patna Ranchi Bench dated 7th of
July 1988 By the aforesaid order the High Court confirmed the striking off of the defence of the
appellant in a suit for eviction under the Bihar Building Lease Rent and Eviction Control Act 1982 hereinafter called the Act  on the ground of personal necessity and change of the nature of the business by the appellant etc
The plaintiff respondent filed a suit for eviction against the defendant appellant from the shop room under Section 11 of the said Act on the aforesaid grounds The appellant tiled the written statement contesting the said suit
The case Or the appellant was that the PG NO 411 respondent landlord s case was false and a pretext for reletting the premises for much higher rent after her attempt to increase rent did not succeed
It was further alleged that the landlord had sufficient alternative accommodation which would not entitle him to get a decree
It was denied that there was no change of business carried on apart from those business permitted by the contract of tenancy
There was however no such bar in this case
On 4th of February 1983 the asked for an order under Section 15 of the said Act against the appellant for deposit of arrears and current rent
The Trial Court by its order on that date directed the appellant to deposit the arrears if ny and continue to deposit rent month by month in future by 15th day of the month next following
It was stated that the appellant accordingly got challans passed for 2 months together each time and deposited the amount in time in the court treasury throughout
However through some inadvertence rent for the months of November and December 1986 could not be deposited
It as alleged that the appellant had genuine belief that his son had deposited the same
It was further the case of the appellant that neither the landlord nor any court of law ever pointed out this non deposit to the appellant
The appellant further asserted that the challans for subsequent period having been passed without any objection the appellant got the impression which was bona fide that he had complied with the earlier order of the court and continued to be in bona fide occupation of the premises in question
In the premises the respondent filed a petition under section 15 of the Act in the trial court for a direction to strike out the defence on the ground that the appellant failed to deposit rent for the months of November and December 1986
The appellant contested the application inter alia contending that the rent for the said period had been duly deposited and asked for a report from the Accounts Branch of the court
This according to the appellant was because the challan for that period was found missing from the record of the appellant as asserted by the appellant
It later transpired on the challans being produced that the rent for the months of November and December 1986 had not been actually deposited
The appellant s case was and throughout has been that this was a mistake
The appellant therefore got a fresh challan passed on or about 9th March l988 and deposited the amount
It is further the case of the appellant that all subsequent amounts have been duly deposited for all subsequent periods
The respondent made his application as mentioned hereinbefore under section 15 of the Act for striking out the defence
On 27th March 1988 the learned Subordinate Judge III Jamshedpur found that the rent for the months of November and December 1986 had not been deposited
The defence against the ejectment therefore was struck off
It PG NO 412 was contended before the learned Subordinate Judge that the time to deposit the rent from time to time though originally granted for two months had expired could be extended
On the other hand on behalf of the respondent it was urged that the defence was bound to be struck off since it was apparent that the amount had not been deposited
It was asserted that the defence of the appellant that the amount had been deposited and the assertion to which the appellant struck was obstinate and wrong and therefore not bona fide
Taking view of these evidence the learned Subordinate Judge came to the conclusion that the excuse for non deposit was not bona fide and there was unexplained delay to deposit the rent for the months of November and December 1986 as enjoined by the order of the court and therefore under section 15 of the Act it was obligatory for the court to strike off the defence
The High Court was moved in revision
The High Court dismissed the application on the 7th July 1988 in limine
Hence this appeal
Section 13 of the Act enjoins making of an application for deposit by a tenant in suits for ejectment
The said section provides as follows  13
Deposit of rent by tenants in suits for ejectment
If in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent if any and the Court after giving an opportunity to the parties to be heard may make order for deposit of rent at such rate as may be determined month by month and the arrears of rent if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month in the fifteenth day of the next following months the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment
The landlord may also apply for permission to withdraw the deposit rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so
The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant
 PG NO 413 In case an order of a deposit is made the court may pass an order to deposit the rent on a particular date andor on 15th day of the following month and if such a deposit is not made then the court shall order the defence against the ejectment to be struck out and the tenant be placed in the same position as he had not defended the claim for ejectment
The question is if the deposit is not made the provision of the section mandates the court to strike out the defence
The question therefore arises whether there is any discretion for the court in case the deposit is not made within the stipulated time
Indisputably in this case the deposit had not been made
The section is clear in its terms
The Act as the preamble states is inter alia to prevent unreasonable eviction of tenants 
Therefore though it is for protection of tenants the Act is enjoined to regulate the rights and the duties of the landlords and the tenants
In the facts of this case as found by the court there was failure to deposit the rent within the stipulated time
The actual problem in the instant case is whether in a case of a genuine mistake which we must hold there was in this case does the court have jurisdiction to extend the time and treat the deposit subsequently made as properly made In Ganesh Prasad Sah Kesari  Anr
vs Lakshmi Narayan Gupta  this Court was concerned with the Bihar Buildings Lease Rent and Eviction Control Act 1947 and Section 11A thereof as it stood at the relevant time
The said section like the present section 13 enjoins that the court shall order the defence against ejectment to be struck out and the tenant be placed in the same position as if he had not defended the claim to ejectment 
This Court held that failure to comply with an earlier direction should not necessarily visit the tenant with the consequences of his defence being struck off because there might be myriad situations in which default may be commited
The Court should therefore adopt such a construction as would not render the court powerless in a situation in which the ends of justice demand relief being granted
It was found in that case that the tenant had deposited all arrears of rent though there were some irregularities in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence
In that case it was held that the defence should not be struck off and the Court should also not consider the word shall  in the context of the section as mandatory but directory
In the cue of Mrs Manju Choudhary and Anr
vs Dulal Kumar Chandra it was held that if there was unexplained delay then the court is bound to strike off the defence
There was observation that there is a duty cast PG NO 414 on the court to strike off the defence if there is failure to deposit the rent in terms of the order of section 13 of the Act
The said observations would apply to the facts of this case and therefore the court must from a proper perspective judge the question whether the delay or failure to deposit the rent in terms of order under section 13 of the Act has been properly explained and if that delay has been properly explained then the court has a discretion to excuse the delay but if the delay has not been properly explained then the court has no discretion
In our opinion such a construction would be a harmonious rendering of the language of section 13 to the claim for justice in each particular case
Therefore the court should consider whether the delay has been reasonably explained or not
In construing that question the court in the scheme of the administration of justice must take a constructive and purposeoriented approach
If it does then the element of discretion comes into play though not in the form of directory or mandatory provision but in considering whether the delay was properly explained or not
In the facts of this case
we find that there is good deal of justification for the delay and the delay has been properly explained in the background of the facts and the circumstances of the case
If that is the position the court should consider the question in that light
The trial court did not look at it from that perspective
The court therfore committed an error resulting in miscarriage of justice
The High Court in not interfering with this miscarriage of justice too committed an error of jurisdiction
In this connection reference may be made to the observations of this Court in Ms BPKhemka Pvt Ltd vs Birendra Kumar Bhowmick and Anr I971 2 SCC 407
There the court was concerned With the default in payment under the West Bengal Premises Tenancy Act 1956 as introduced by Ordinance 6 of 1967There the court had to consider the expresion shall  in section 173 of the West Bengal Act
It was held that the court s power was discretionary and in that case the High Court was of the opinion that the delay of two months in payment of rent being of technical nature the court should have exercised discretion and refused to strike off the defence
It was the view of the court that the words shall order the defence against delivery of possession to be struck out  occuring in section 173 of the West Bengal Act have to be construed as directory provision and not mandatory provision as the word shall  should b read as may 
The court expressed the view that such a construction was warranted because otherwise the intendment of the Iegislation as judged from the whole scheme in the preamble would be defeated and the class of PG NO 415 tenants for whom the beneficial provisions were made by the Ordinance in question in that case and the amending Act will stand deprived of them
This Court observed that the court is vested with the discretion either to order the defence to be struck out or not depending upon the circumstances of the case in the interest of justice
There the Court found that the delay was technical in nature
Therefore the interest of justice which is the paramount justification of the administration of justice with the purpose of the Act compels us to hold that if the delay is explained then there is no delay and the court in such a case cannot strike off the defence
If on the other hand the delay is not explained or the explanation is one which is not acceptable to the court then the court must strike out the defence and there is no discretion
Read in that light in our opinion the learned trial judge of the High Court committed an error in exercising his jurisdiction
The orders of the High Court and the Trial Court are set aside
The defence of the appellant is restored since all the rents have been deposited
In view of the delay due to interruption in the prosecution of the case it is desirable if possible to dispose of the trial within six months from today particularly since the case has been pending since 1975
The appeal is therefore disposed of accordingly
In the facts and the circumstances of the case and the conduct of the appellant in taking an incorrect defence leading to subsequent proceedings the appellant is directed to pay all costs of this appeal which are assessed as Rs 1500
RSS Appeal disposed of


Summary:
The respondent flied a suit in the High Court for a decree directing 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 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 tenantappellant moved this Court
Allowing the appeal the Court HELD A provision as in section 174 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 should 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 disabilities of a person in default should be limited 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 wider operation than could have been strictly intended by the legislature
356E F PG NO 333 PG NO 334 In truth and substance the plea regarding the validity of the 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 357A Full effect should be given to the words that defence against ejectment 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 finishing touch which completes the plaintiff s case
No oral testimony can be considered satisfactory or valid unless it is tested by cross examination
Mere statement of plaintiff s witnesses cannot constitute plaintiff s evidence 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 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 the plaintiff is not sufficient to fulfill the terms of the statute
357B D The basic principle that where a plaintiff comes to court he must prove his case should not be whittled down even in a case where no defendant appears
357E The defendant should be allowed his right of cross examination and arguments
This right 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 diffcult to keep the cross examination within limits
But this is a difficulty of procedure rather than substance
It is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion
358B D Thirdly 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
The PG NO 335 Court should ensure that by permitting the defendant at a later stage either to cross examine the witnesses or participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced there is a wide discretion with the court and it is open to the court where it believes that the plaintiff has been misled to exercise its discretion to shut out cross examination or regulate it in such manner as to avoid any real prejudice to the interests of plaintiff
358E F G Even in a case where the defence against delivery of possession of a tenant is struck off under section 174 of the Act the defendant subject to the exercise of an appropriate discretion by the court on the facts of a particular case would generally be entitled to a cross examine the plaintiff s witnesses and b address argument on the basis of the plaintiff s case
The defendant 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
In no circumstances should the cross examination be permitted 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
359G H 360B C KK Chari vs RH Seshadri AIR   Inder Mohan Lal vs Ramesh Khanna   Sangram Singh vs Election Tribunal Kotah Bhuray Lal Bava   Ms Paradise Industrial Corpn
vs Ms Kiln Plastics Products   Ms Babbar Sewing Machine Company vs Trilok Nath Mahajan  Ram Chand vs Delhi Cloth  General Mills Co Ltd   Shyamcharan Sharma vs Dharamdass   Ram Murti vs Bhola Nath  Bela Das  Ors
vs Samarendra Nath Bose   SN Banerjee vs HS Suhrawardy AIR 1928 Cal
772 Dabendra Nath Dutt vs Smt
Satyabala Dassi  Ors AIR 1950 Cal
217 SB Trading Company Ltd vs Olympic Trading Corpn
Ltd AIR 1952 Calcutta 685 Gellatty vs Cannon AIR 1953 Cal 409 Gurudas Biswas vs Charu Panna Seal AIR 1977 Cal 110 Daya Moyee Sadhukhan vs Dal Singer Singh AIR 1979 Cal
332 Sangram Singh vs Election Tribunal  and Ganesh Ram vs Smt
Ram Lakhan Devi  referred to