- (1.) THIS is defendant's revision petition against the order of the learned Munsif and Judicial Magistrate No. 5 Jaipur City, Jaipur dated 6. 12. 1991 holding that the petitioner could not lead any evidence in view of the fact that his defence has been struck off.
(2.) THE suit of the non-petitioner for rent and eviction was contested by the petitioner by denying the fact that he took the premises on rent and executed a rent deed. THE grounds of eviction were non payment of rent and nuisance. THE trial court determined the rent payable by the tenant and fixed the time for depositing the same but the petitioner did not deposit the same. After the evidence of the plaintiff was closed, the defendant-petitioner wanted to lead evidence on the issue about execution of rent note, but the plaintiff objected and after hearing both the parties the learned Munsif relying upon Krishna Gopal Shanker Lal vs. Laxminarayan Tarachand and Ors. (1), Inderchand vs. Smt. Lilawati, (2) and Modula India vs. Kamakshya Singh Deo, (3) , held that where the defence has been struck off, the defendant was not entitled to lead any evidence. The learned counsel for the petitioner has relied upon Desraj vs. Om Prakash (4), wherein it has been held that under section 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (hereinafter referred to as the Act) the defence of the tenant only in relation to ground of default in payment of rent can be struck off and not the defence on other grounds mentioned in section 13 of the Act. The earlier decisions of this Court were said to be no longer good law in view of A. I. R. 1979 SC 1745 It has been contended by the learned counsel for the petitioner that in a suit where tenancy itself is contested the tenant-defendant cannot be denied the right to contest this issue because according to him the defence can be struck off only on the ground of default of payment of rent. It is contended that the other decisions relied upon by the learned Munsif were of cases wherein there was no dispute about the tenancy. In Modula India vs. Kamakshya Singh Deo (supra) a number of decisions have been examined in arriving at the conclusion as to what is the effect of striking out defence and what rights will remain with the defendant. It was held that the tenant should be allowed to cross-examine the witnesses and submit his arguments but at the same time it was laid down that the tenant cannot be allowed to lead his evidence. This view was held after taking into consideration the observations made in several decisions which were cited in the cage. Limits were placed on the nature of the cross-examination also. The Supreme Court decision has been considered and relied upon by this court in 1990 (2) R. L. R. 1% (supra) and it has been observed that in view of the Supreme Court decision 1987 (1) RLR 244 (supra) stands impliedly overruled. In Smt. Bela Das and others vs. Samrendra Nath Bose, (6), the Hon'ble Supreme Court has laid down guide lines as to how to proceed when the defence against eviction is struck off under the provisions contained in Rent Control Act. In this case the plea of the defendant was that the plaintiff being landlord of a moiety of share in the suit property could not alone claim a decree for eviction against him. Such a plea set up by the defendant to resist the suit of eviction was a plea qua tenant and not de hors it. The striking out of the defence had therefore the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiff only being co-sharer landlord was not entitled to maintain the suit for eviction. A matter similar to the present case arose in Mahabir Ram vs. S. S. Prasad (7) and the matter came up before the Full Bench. Referring to the provisions of the Rent Control Act it was observed that the emphasis throughout in section 11a is on the word tenant and whatever defences are open to him as a tenant against ejectment have to be struck out in case of his failure to make the deposit under that provision. It was held that his defence qua tenant only would be struck off, if he fails to pay the amount of rent. When he takes a defence that he was not a tenant of the plaintiff-landlord and challenged the title to the house in question, then this defence is not in the capacity of a tenant, inasmuch as there is a clear denial of relationship of landlord and tenant, he can be allowed to contest this ground even if his defence is struck out, but, his contest would be limited to the question of tenancy only. It is to be seen whether the defendant can be allowed to contest the suit on the ground of denial of tenancy. The Full Bench decision of the Patna High Court supports the view of the petitioner. Even in the Supreme Court case of Smt. Bela Das (supra), the Patna decision was referred and distinguished, because in that case there was no denial of tenancy, but the plea raised was that the plaintiff alone being the owner of a moiety share could not alone claim a decree of eviction against him. The Patna view has not been disapproved.
(3.) UNDER Section 13 (5) of the Act, the defence of a tenant-defendant qua tenant alone can be struck off and the defendant cannot be deprived of contesting his plea that he is not a tenant. This situation has not been covered either by 1987 (1) RLR 244 (supra) and by 1990 (2) RLR 196 (supra ). Relying upon the Patna case and also the observations made in the Supreme Court decision of Smt. Bela Das (supra), I hold that the petitioner can not be deprived of the right to contest his plea that he is. not a tenant. Hence this revision petition is accepted and the order of the learned Munsif is set aside. The petitioner shall be allowed to contest the issues 1 and 4. A copy of the order be sent to the trial court. .;