- (1.) This revision petitionhas been filed against the order passed by the learned Munsif, Jaipur City (East) dated December 8, 1977.
(2.) In a suit for eviction on the basis of personal necessity, sub-letting and defaults in payment of rent, the defence of the defendant against eviction was struck off, as he failed to comply with an order passed by the trial Court under sub-section (3) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (herein after referred to as the Act"). After the closure of the plaintiff's evidence the case was fixed for recording the evidence of the defendant on September 7, 1977. The defendant took some adjournments and thereafter his statement was partly recorded on November 28, 1977 on that day, the defendant desired to prove 33 receipts, which, according to him, were signed and given by the plaintiff to the defendant in respect of rent, house tax etc. The defendant also filed an application on December 8, 1977 before the trial Court paying that he may be allowed to prove the receipts in question, which have been marked as Ex. A1 to Ex. A33. The stand of the plaintiff was that as the defence of the defendant against eviction has been struck off, he could not be allowed to prove the receipts in question. The trial Court by its impugned order dated December 8, 1977 disallowed the defendant to prove the receipts and rejected the defendant's application in that respect. He also closed the evidence of the defendant by the same order on the ground that several opportunities had already been afforded to the defendant to lead his evidence and no further opportunity can be allowed to him to do so. This order passed by the learned Munsif has been challenged in the present revision application.
(3.) It is settled law that if in a suit for eviction, the defence of the defendant is struck of, then he cannot be allowed to lead evidence in respect of the defence pertaining to his liability to ejectment or the loss of protection of the provisions of the Act. But the defendant cannot be prohibited from leading evidence in respect of other matters, including the special defences taken by him in the suit. In Nana Shah v. Ramkukar,1966 RajLW 446, Bhandari, J. as he then was observed as under :- "The proper interpretation is that it does not mean that entire defence of the defendant because in a suit against eviction, the defendant may be taking up defence, such as his tenancy has not terminated or that he is not a tenant at all, or that he is a tenant of only a part of the property, and not of the entire property for which the suit has been brought against him. .... These words must be construed as meaning striking off the defence against eviction taken up by the tenant in answer to allegations of the landlord that his case falls under clauses (a) to (k) of sub-section (i). If this interpretation is not adopted, a person who is in fact nor a tenant, will be at the mercy of the plaintiff who alleges that the defendant is his tenant end that he had committed default in the matter of payment of rent." A similar view was expressed by Late J.P. Jain, in Mohanlal v. Lekhe Khan and it was held that the tenant loose his right to be heard in respect of the defences he had taken against eviction and he will not be entitled to prove by producing evidence the incorrectness or falsity of the averments made by the plaintiff in respect of the grounds of eviction contained in Section 13 of the Act. But the tenant defendant would be entitled to cross-examine the plaintiff and his witnesses, who may be produced by him in support of the allegations regarding the existence of the grounds relating to the defendant's liability for eviction and to demolish the plaintiff's case by such cross-examination and he would also be entitled to argue the case on the basis of the evidence led by the plaintiff in respect of the grounds of eviction pleaded by the landlord. It cannot be dispute that an order striking off the defence of the defendant against eviction is restricted to the liability of the tenant defendant for eviction, on account of the existence of one or more of the grounds enumerated in Section 13(i) of the Act. Thus, the defendant looses protection of the provisions of the Act, but it does not mean that the defences of the defendant outside the Act cannot be proved by him by leading evidence in respect thereof. In the words, the safeguard provided to the tenant by the provisions of Section 13 of the Act, which is a special law, ceases to be available to him, on account of his failure to comply with the statutory obligation imposed upon him by the provisions of Section 13 itself. But, if besides a decree of eviction, the plaintiff desires to obtain a money decree of eviction, the plaintiff desires to obtain a money decree for a certain amount, claiming the same as arrears of rent and house tax etc. and if the defendant denies the allegations of the plaintiff about his liability in that respect and if his defence is that no amount is due on that account or lesser amount is due to the plaintiff, then even a part from the provisions of the Act, the defendant would have been entitled to prove his case in that respect, not only by cross-examining the plaintiff's witnesses but also by leading positive evidence to show that the amount alleged to be due by the plaintiff was in fact not due, or that in fact a lesser amount was due. In my view, the defendant cannot be placed in a worse position than that which would have prevailed in this respect, if the rent control legislation would not have been enforced at all. A breach of the statutory obligations contained in Section 13 of the Act by the tenant, would have the effect of taking away only the protection, which has been afforded to the tenant against eviction, by the provisions of Section 13 itself. But the defendant has every right to demolish the case of the plaintiff in respect of other matters not covered by the provisions of the Act and to demolish the case of the plaintiff in respect of matters other than his liability of eviction on one or more of the grounds contained in Section 13(i) of the Act, not only by cross-examination of the plaintiff's witnesses, but also by leading positive evidence in respect of his defences outside the provisions of the Act. The defendant can also lead evidence to rebut the plaintiff's case in respect of matters other than the ground for eviction specified in Section 13(1) of the Act. In my view, the order striking off the defence of the defendant against eviction only takes away the right of the defendant to lead evidence in respect of or relating to the existence of one or more of the grounds of eviction contained in Section 13(i) of the Act. As for illustration, if the plaintiff files the suit for the eviction on the basis that he is the sole owner of the rented premises and in case the defendant denies the allegation of the plaintiff in that respect, then it will certainly be open to the defendant to disprove the plaintiff's allegation by leading positive evidence in rebuttal and to show that there were other co-owners in existence besides the plaintiff or that the plaintiff is not at all the owner Rule or the landlord of the premises in dispute. similarly, when a decrees for money on account of non-payment of arrears of rent and other charges is claimed by the plaintiff and the allegation is denied by the defendant, than how could the defendant be prohibited from leading evidence to show that the amount claimed to be due by the plaintiff has already been paid to him of his authorised agent of course, in doing so, the defendant cannot be heard to say that he was not a defaulter in payment of rent, as that would relate to a ground of eviction contained in Section 13(1) of the Act. Thus, in the present case, the defendant is entitled to lead evidence, in rebuttal relating to issue Nos. 4 and 5 as also in support of issue Nos. 6 and 7, of which the burden has been placed upon him. The issue Nos. 4 to 7 framed in the suit do not relate to the liability of the defendant to eviction and are not concerned with any of the grounds contained in Section 13(1) of the Act. They relate to matters outside the provisions of the Act, which either the plaintiff was bound to prove in order to succeed in his suit or which were raised by way of special defences by the defendant. The plaintiff cannot get a decrees for eviction under the general law without proving the fact that a notice in accordance with law, terminating the tenancy of the defendant had been duly served upon the latter and similarly he cannot get a money decrees without proving the fact that the amount claimed was due and payable by the defendant. The receipts sought to be proved by the defendant, in respect of issue No. 5 and 6 to show as to whether a sum of Rs. 24,07/- is due and payable by the defendant. In my view, the trial Court was not justified in depriving the defendant of his right to contest the claim for arrears of rent, by disallowing him from proving the receipts in question. In case the receipts are proved to be genuine and the amount specified therein is proved to have been duly paid to the plaintiff, then in that event, how could the plaintiff be allowed to obtain a decree for money to the extent, the payment is proved by such receipts Therefore, the defendant should be allowed to lead evidence in order to prove the receipts. A1 to Ex. A33 and also to prove the actual payment of the amount specified therein. He can also lead evidence in respect of other matters covered by issue Nos. 4, 6 and 7.;