Shanti Devi vs Mahabir Mistry

Satyeshwar Roy, J.—The plaintiff is the appellant. She filed a suit for eviction of the respondent on the ground that latter had defaulted in paying the rent from November, 1983 and on the ground that she required the building for the use and occupation of her son who was silting idle. The suit premises is a show room. The suit was decreed by the trial court but the appellate court has reversed its finding and has dismissed the suit. It appears that when the matter was pending before the lower appellate court, direction was given to the respondent, appellant in the court below, to deposit the arrear as well as current rent. He did not comply the order and his defence against ejectment was struck off.

Notwithstanding the fact that the defence was struck off, the court below not only looked into the evidence of the appellant, but also the evidence of the respondent, both oral and documentary, for non-suiting the appellant.

On 25.8.1989 at the time of admission of the appeal, fallowing substantial question of law was formulated :

As to whether the court of appeal below erred in taking into account the defence version after hearing held that the defendant respondent was debarred front making any argument in court against ejectment.

It was submitted on behalf of the appellant that in view of the fact that the defence of the respondent had been struck off, the court below could not have looked into the written statement for recording some finding oil facts against the appellant, in support of this, Learned Counsel brought to my notice the relevant portions of paragraphs 8, 14 and 15 of the appellate court''s judgment. From the perusal of the aforesaid paragraphs, the contention, made on behalf of the appellant is substantiated. As the defence of the respondent had been struck off, in law it shall be deemed that he had not contested the suit and, if that be the position written statement and the evidence adduced by the respondent could not have been looked into by the court below. For this ground alone, the finding of facts recorded by the court below cannot be sustained.

I have already noticed that as the respondent did not comply the order of the court below by depositing the rent, his defence against ejectment was struck off by order dated 23.6.1987. this was reiterated in paragraph 8 of the judgment. The court below was of the opinion that it had no option but to Struck off the defence in all the cases where rent is not deposited in terms of the direction of the court. The court below here erred in law. Merely because the rent had not been deposited the court cannot strike Out the defence. Striking out the defence is not automatic because rent has not been deposited, Reference may be made to Mannmohan Kaur VS. Surya Kant Bhagwanti : 1988 BBCJ (SC) 211 :

In view of the findings recorded hereinabove wherein I have observed that the Court below could riot have looked into the written statement and the evidence adduced by the respondent as the defence has Been struck off, the matter shall have to be sent back to the lower appellate court. It appears from the record of this appeal that this Court had directed the respondent to deposit arrear as well as current rent and I am informed by Learned Counsel appearing on Behalf of the appellant that rent in compliance of the order hits been deposited. In view of this situation and in view of the fact that the matter is being remitted, I set aside the order of the lower appellate court dated 23.6.1987 which has Seen affirmed by it in paragraph 8 of its judgment by which the defence against ejectment has Been struck off and also the judgment and decree, the court below shall hear both the parties and dispose of the appeal in accordance with law. Since eviction has been prayed also on the ground of personal necessity, the court below shall give priority to this appeal. In view of the order passed in the second appeal cross-objection is not pressed.