IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15467 of 2011 Mostt.Damyanti Devi & Ors Versus Smt. Anita Guha ---------------------------------- O R D E R 04. 05.12.2011. 1. I have heard the learned senior counsel, Mr. S. S. Dwivedi on behalf of the petitioner and the learned counsel, Mr. Rajendra Prasad Singh, on behalf of the respondent. 2. The plaintiff have filed this application under Article 227 of the Constitution of India challenging the order dated 21.07.2011 passed by Munsif IIIrd, Patna in eviction suit No.23 of 2007 whereby the Court below allowed the amendment of written statement. 3. The learned senior counsel, Mr. Dwivedi raised a short question of law that in the eviction suit, admittedly, the defence of the tenant-respondent qua- a-tenant has been struck off but the learned Court below allowed the amendment which was related and / or available to a tenant only. 4. On the other hand, the learned counsel for the respondent submitted that even if the defence has been struck off then also defendant-respondent has the right to cross-examine the witnesses and can establish his right to the property and moreover, the amendment - 2 - sought for is necessary for determination of the real controversy between the parties and, therefore, the learned Court below has rightly allowed the same. Whether the respondent will be entitled to relief on that amended pleading or not is a matter to be considered at the time of final hearing. 5. In view of the above admitted position, the detail fact is not necessary. Section 15 of the Bihar Building (Lease, Rent, Eviction) Control Act, 1982 reads as follows : “15. Deposit of rent by tenants in suits for ejectment – (1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before or after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month; the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord’s witnesses. (2) If in any proceeding referred to in sub- Section (1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in Court the amount payable by him under sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. (3) If the Court is satisfied that any dispute referred to in sub-section (2) has been raised by - 3 - a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section (1). 6. In view of the above position of law if the defence against ejectment has been struck off, the tenant has to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord witness. As in the present case, the defence has been struck off, therefore, no defence which is available to tenant only is available to the present respondent. 7. In A.I.R. 1989 Supreme Court 162 Modula India Vs. Kamakshya Singh Deo, the Apex Court has held that we agree that full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff’s case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiff’s witnesses really constitutes a finishing touch which completes the plaintiff’s case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff’s witnesses cannot constitute the plaintiff’s evidence in the case unless and until - 4 - it is tested by cross-examination. The right of the defence to cross-examine the plaintiff’s witnesses can, therefore, 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. Looked at from this point of view it should be possible to take the view hat, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating 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. To us it appears that the basic principle that where a plaintiff comes to the Court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiff’s evidence and pleadings supplemented by such questions as the Court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the Court under a great handicap in discovering the truth or otherwise of the plaintiff’s statements. For after all, the Court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff’s averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the Court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff’s case. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. - 5 - But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case.” 8. In view of the above settled position of law, the defendant now will not be allowed to lead his evidence. He can only be permitted to cross-examine the witnesses of the plaintiffs for demolishing the case of the plaintiff. If he is not permitted to adduce evidence then there is no question of permitting the amendment in the written statement arises. 9. In the present case at our hand, the amendment application was filed by the defendant seeking to introduce a fact that during the pendency of this suit, some subsequent facts have occurred which has necessitated the amendment in the written statement. According to the defendant during the pendency of the suit, some flats were vacated on the second floor and new tenant was inducted in another flat. Hence, the claim of personal necessity comes to an end. So far this defence is concerned, the defendant cannot be permitted to adduce evidence in support of this fact because the defence qua a tenant has already been struck off and the Apex Court referred to above - 6 - held that he will not be permitted to adduce evidence to prove his own case. In such circumstances, the pleading itself is not the proof of the fact alleged. Moreover, so far this defence is concerned, it is available to a tenant only. 10. Considering the above facts and circumstances of the case, in my opinion, the amendment sought for by the defendant in the written statement could not have been allowed, particularly when his defence qua a tenant has already been struck off and this amendment sought for is available to a tenant only. As has been held by the Apex Court referred to above, the defendant can cross-examine the witnesses only. 11. The learned Court below has not considered the above position of law and allowed the amendment. Therefore, in my opinion, the learned Court below has exercised a jurisdiction not vested in it by law. Accordingly, the impugned order is set aside and the writ application is allowed. Patna High Court, Patna The 5thday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)