V.S. Sirpurkar, J.
1. By this revision, applicant-original defendant challenges judgment and decree passed by the Additional Judge, Small Causes Court, Nagpur decreeing the plaintiff's suit and passing a money decree for Rs. 1,100/- as arrears of rent from 1-4-1986 to 30-11-1986 at the rate of Rs. 150/- per month and also for Rs. 50/- as notice charges.
2. Originally, a civil suit came to be filed by 4 plaintiffs, who claimed that they had purchased the suit house from one Jagdishchandra. It was their contention that all the plaintiffs had jointly purchased the suit house by a sale-deed dated 18-12-1981. They contended that defendant Rambhau was occupying a portion of the said house as a tenant on monthly rent of Rs. 150/-. It was their case that Rambhau who was occupying a portion of the suit house had paid rent for only one month to them after he was informed about the change in ownership and that was for the month of January, 1981. They claimed that thereafter the tenant did not pay rent and had fallen in arrears of the same. A decree for Rs. 1,100/- on that count was claimed in the suit. Originally suit was for ejectment, damages and notice charges. However, subsequently, claim for ejectment was withdrawn and the suit remained in respect of claim of arrears of rent only. This claim was opposed by the defendant, who raised number of pleas in the written statement. Pre-dominantly his case was that the plaintiffs were not the owners at all. There is a diabolic plea in respect of this payment of rent for the month of January, 1981. As regards ownership of the plaintiffs, though in para 5 there is admission of ownership, subsequently defendant gave a long history that the present plaintiffs had got the property transferred from the erstwhile owner Jagdishchandra and in fact since the amount was borrowed from the defendant for the construction of the house, he had a charge in that house and the said charge continued so far as the said amount was not made good to the defendant. In short, this was completely confused plea, wherein defendant had not either bothered to deny the title or to assert his own title. During the pendency of this suit, on 7-12-1982, plaintiffs made an application under the provisions of section 151 directing the tenant to make payment of the accumulated rent as also directing him to continue the payment of rent in the Court. This application was replied to by the tenant by his reply dated 24-2-1983 and ultimately order came to be passed on 17-3-1983 by the Court directing the tenant to pay the rent by 11-4-1983. The defendant then filed a review application on 28-4-1983 but that review application was also dismissed on 1-8-1983. In short, till that stage atleast, the defendant was directed to make the payment of the accumulated arrears of rent.
3. Thereafter the suit took a new turn in as much as plaintiff thereafter filed application on 23-7-1983, by which application plaintiff prayed for striking off the defence of the defendant as he had failed to comply with the order passed by the Court on 17-3-1983. Indeed, the defendant had not complied with the order and he could not make any effective defence to the application for striking off the defence, which application was served upon him and when the said application was being decided, defendant was even heard. Ultimately, the application came to be allowed and the defence was ordered to be struck off on 6-8-1984. Even then the defendant did not come out of his slumber and instead of challenging it before the proper forum filed an application for restoration of defence on 3-2-1987 (Exh. 43) i.e. after about 3 years of striking off the defence order was passed. Again the said application met the same fate i.e. it was dismissed on 10-3-1987. Thereafter it seems that the Court proceeded to record the evidence of the plaintiff and ultimately passed the judgment on 1-11-1991 decreeing the suit of the plaintiff. It is this judgment, which is under challenge in the present proceeding.
4. Shri Gulhane, learned Counsel for the applicant attacked the judgment on various grounds. His first contention is that in fact order dated 6-8-1984 itself was not proper and the Court erred completely in allowing the application for striking off the defence. He contended that presumably the Court had acted under the provisions of Order XV-A, Rules 1 and 2 of Civil Procedure Code. However, he pointed out that firstly that provision was not available at all and further even if it could be availed of, it could not be used for striking off the defence as the defendant was not given a notice as contemplated under the provisions of Order XV-A. His further submission is that even if it is presumed that order striking off the defence is passed under Order 39, Rule 11, even then, notice contemplated under that provision was not given and, therefore, the Court was wholly incorrect in striking off the defence. His further contention is that once this illegality was committed, it tainted the further proceedings in as much as he was not allowed to raise his defence and that has caused great prejudice to him. He pointed out that he had raised further legal submissions to the effect that the said house was in the slum area and as such no suit could have been filed in respect of the same and for that purpose he had also produced a witness but he was not allowed to be examined by the Court, in view of the fact that his defence was struck off. This prejudiced the case of the defendant as he got no opportunity to meet the case of the plaintiff by leading evidence. He further pointed out that once he had disputed the title of the plaintiff, this being a Small Causes Court, could not have gone into the question of title and should have returned the plaint under section 23 of the Provincial Small Causes Act.
5. Mr. Mehadia, learned Counsel for the original landlords has supported the judgment and has contended that the trial Court had correctly followed the procedure as also the law applicable. The main thrust of the argument of Shri Mehadia was that the tenant had not in any manner challenged the order dated 6-8-1984, when it was passed and was trying to question the same now only after the final judgment was given by the Trial Court. He further submitted that the notice contemplated under Order XV-A, Rule 2 or Order 39, Rule 11 was given in as much as the defendant was supplied with a copy of the concerned application.
6. In order to appreciate the rival contentions, it will be better to consider the provisions of Order XV-A, Rules 1 and 2, which are as under :
'1. In any suit by a lessor or a licensor against a lessee or a licensee, as the case may be, for his eviction with or without the arrears of rent or licence fee and future mesne profits from him the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the Order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent or licence fee claimed in the suit as the Court may direct. The defendant shall, unless otherwise directed continue to deposit such amount till the decision of the suit.In the event of any default in making the deposits, as aforesaid, the Court may subject to the provisions of sub-Rule (2) strike off the defence.
2. Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his advocate to show cause as to why the defence should not be struck off and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence'.
This new provision has been added by amendment with effect from 5-9-1983. Similarly, original Order 39 was amended and Rule 11 was added by the same amending Act with effect from 5-9-1983. Rule 11 runs like this :
'(1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defence, if the default or contravention or breach is committed by the defendant or the opponent.
(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit for proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court; Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed'.
Shri Gulhane contended that the application for depositing the rent was filed under section 151 of Civil Procedure Code and not under Order 39, Rule 10 or Order XV-A. He contends that, therefore, the Court could not have used Order XV-A for striking off the defence at all. His second contention is that when the order directing the rent to be deposited was passed on 17-3-1983, the provisions of either Order XV-A or the provisions of Order 39, Rule 11 were not on the statute book and, therefore, there was no question of the Court directing striking off the defence under any of those provisions.
Though the order to deposit the rent was passed on the application under section 151, it is clear that the power to pass such order could be derived only from Order 39, Rule 10 and thus it can be safely said that the said order was passed under that provision.
In fact, the language of Order 39, Rule 10 is wide enough. Rule 10 covers the cases, where the subject matter of the suit is money or some other thing capable of being delivered and where there is an admission by the party that the party holds such money or other thing as a trustee for another party or that it belongs or due to another party. Now in this case, in the written statement, there is a clear cut admission by the defendant that he had paid the rent for one month. If this is accepted, then it amounts to an admission regarding his status of a tenant and his liability to pay the rent, though subsequently the defendant had tried to deny the title of the plaintiff. The case was, therefore, fully covered by Order 39, Rule 10 Civil Procedure Code and the trial Court had also passed the order dated 17-3-1983 to deposit the said rent in the Court. Order 39, Rule 11(1) mandates that where there is such a breach on the part of the party, who is directed by the Court to do or not to do something, fails to comply with the order of the Court and if such party is plaintiff, the suit may be dismissed for non-compliance and if such party is defendant, his defence may be struck off. The language of Rule 11 is not restricted to the eventualities provided by Rule 10 alone. It speaks generally of an order passed by the Court directing the parties to do something or to refrain from doing something. Rule 11 further provides that where there is a default on the part of any party in complying with the order passed by the Court, then either the suit may be dismissed if the defaulting party is plaintiff or defence may be struck off, if the defaulting party is a defendant. Sub-rule (2) provides that the Court on a sufficient cause being shown may restore the suit or rejuvenate the defence which is struck off. The proviso to this sub-rule provides that where the order is to be passed under sub-rule (2), then a notice shall be given to the parties likely to be affected by the order to be passed. It is an admitted position that the order dated 17-3-1983 was not complied with at all by the defendant and that necessitated the plaintiff to file an application for striking off the defence. Not only this but the said application of the plaintiff for striking off the defence was allowed. Shri Gulhane, case is that since the order dated 17-3-1983 was passed under section 151, the defence could not have been struck off under the provisions of Order XV-A. In the first place, there is very little in the order to suggest that the defence was struck off by order dated 6-8-1984 under the provisions of Order XV-A. There is nothing in the order to suggest that. Shri Gulhane relied on the judgment of this Court, wherein an observation was made that admittedly the order was passed under the provisions of Order XV-A. Such is not the case. In that judgment, though observation is that admittedly the order was passed under Order XV-A, the so called admission was attributed to the defendant and the defendant could not have presumed that the order was passed under the provisions of Order XV-A. There is nothing in the order dated 6-8-1984 to suggest that that order was passed under the provisions of Order XV-A. It seems that the order has been passed or atleast could have been passed under Order 39, Rule 11. Again if a comparison is to be made, the provisions of Order 39, Rule 11 and the provisions of Order XV-A, Rules 1 and 2 so far as they relate to the striking off the defence are almost of a similar or overlapping nature to a certain extent. Both the provisions contemplate firstly a direction by the Court to do something. In contradistinction with Order 39, Rule 11, Rule 1 of Order XV-A operates in narrow compass and contemplates only an order directing to deposit rent or such amount as the Court may direct on account of arrears upto the date of order. However, in so far as the power of the Court of striking off the defence is concerned, it is covered by the latter portion of Rule 1 of Order XV-A. There the position is almost identical as in case of Order 39, Rule 11. Order 39, Rule 11 has wider connotation in comparison to Rules 1 and 2 of Order XV-A. While the default as contemplated in Order XV-A only relates to the payment and deposit in the Court of the arrears of rent, the default as contemplated in Order 39, Rule 11 is of any order, issuing any direction to any of the parties. Again Order XV-A, Rules 1 and 2 operate only against a defendant and contemplate striking off the defence alone. In contradistinction thereto, the Court has power even to dismiss the suit of the plaintiff, if the plaintiff fails to comply with the order directing him to do something. Thus Order 39, Rule 11 has wider connotation than Order XV-A, Rules 1 and 2. The Court, under such circumstances, if proceeded to strike off the defence under the provisions of Order 39, Rule 11, then it could not be said that any illegality was committed by the Court. For non-compliance as complained in the present suit, the Court could have undoubtedly struck off the defence under the provisions of Order 39, Rule 11, as in its wider connotation, the case of non-payment of rent as directed by the Order dated 17-3-1983 could have been as well covered under the provisions of Order 39, Rule 11 also, not to speak of Order XV-A, Rules 1 and 2 alone.
Apart from this, merely because earlier order was passed under the provisions of section 151 for making payment of rent, it cannot be said that the order striking off defence could not have been passed under the provisions of Order XV-A, Rules 1 and 2. The wording of the latter part of Rule 1 is, 'in the event of any default in making deposit as aforesaid, the Court may subject to the provisions of sub-rule (2) direct striking off the defence.' Probably the thrust of the argument of the learned Counsel is on the words, 'as aforesaid'. It is for this reason probably that the learned Counsel insisted that the earlier order directing payment of rent should have been made only under the provisions of Order XV-A, Rule 1. Such is not clearly the case. Even if there is an order independent of the first part of Rule 1 and more particularly under Order 39, Rule 10, non-compliance thereof could always be dealt with under the provisions of Order XV-A, Rules 1 and 2 in the present set of facts. Rule 1 which gives power to strike off the defence merely contemplates a default on the part of the defendant in compliance with direction to deposit the rent. Merely because such direction was given under the provisions of section 151 or Order 39, Rule 10, it could not be said that the non-compliance with the same would not be punished under the provisions of Rule 1. The words, 'as aforesaid' used in the latter part of Rule 1 do not suggest that the order directing the payment should have been passed only under the provisions of Order XV-A, Rule 1. Even if it is an order passed under any of the other powers which the Court has, the Rule will still operate and the failure on the part of the defendant to pay the rent could be considered under the provisions of Order XV-A. In this case, this discussion would be of no consequence since even under Order, 39, Rule 11, such striking off the defence could have been ordered.
7. The further argument of Shri Gulhane is that he did not have a notice before the defence was so struck off by an order dated 6-8-1984. His case is that on the application made by the plaintiff if the Court comes to conclusion that there is failure on the part of the defendant to comply with the order directing to deposit the rent then independently a notice has to be given. Such is clearly not the import of Rule 2 of Order XV-A. In the first place, in the present case, this argument will not survive as under the provisions of Order 39, Rule 11, no such notice is contemplated. There is nothing in sub-rule (1) of Rule 11 to suggest that before passing an order of striking off the defence any notice is necessary. Such notice is necessary only under a proviso to sub-rule (2), where the Court has power either to restore the dismissed petition or to restore the defence, which is already struck off. It is only, when the Court wishes to restore the dismissed civil suit or to rejuvenate the defence which is already struck off. Then only such notice is contemplated to the other side by this proviso. The words used by this proviso, under this sub-rule (2) encompass only sub-rule (2) of Rule 11 which speaks only of the powers of restoration of the suit or rejuvenation of the struck off defence, as the case may be. However, even if it is to be presumed that in the present case, the provisions of Order XV-A, Rule 2 were applicable and that the Court struck off the defence not under Order 39, Rule 11 but under Order XV-A, Rule 1, it will be seen that the defendant has been served with a copy of the application by the plaintiff to strike off the defence. Not only this but the defendant was fully heard, as the Court records show, before passing the order of striking off the defence. Even during the argument, the defendant had opportunity to deposit the payment, yet defendant did not avail of it. Under such circumstances, it cannot be said that the defendant did not have the notice. The argument of the learned Counsel that the Court erred in striking off the defence by its order dated 6-8-1984 will have, therefore, to be rejected.
8. This is quite apart from the fact that the defendant had the opportunity to challenge the order dated 6-8-1984. The defendant did not challenge the order dated 6-8-1984 and chose to come before this Hon'ble Court in the revision only during the execution proceedings started by the plaintiff for recovery of rent ordered by the earlier order dated 17-3-1983.
9. The last argument of Shri Gulhane has to be mentioned only to be rejected. His argument is that the provisions of Order XV-A or the provisions of Order 39, Rule 11 were introduced only by the amending Act dated 5-9-1983 and, therefore, since the earlier order directing payment of rent was made prior to these amendments, its non-compliance could not be taken care of under these amended provisions as amended provisions were prospective and not retrospective. It is clear that both these provisions are procedural and do not confer any vested rights. The provisions of Order 39, Rule 11 merely contemplate the further procedure to be taken by the party when there is a non-compliance to the order passed by the Court and the effect of such non-compliance. It does not be speak of any vested right being created in the party. Similar is the situation in respect of Order XV-A. Order XV-A has merely given a power to the Court to order to deposit the accumulated arrears of rent and a direction to keep on paying the rent during the pendency of the suit in between the landlord and the tenant. There is no new vested right created. Both the provisions i.e. Order XV-A and Order 39, Rule 11 will have to be held to be procedural amendments and will, therefore, be applicable necessarily to the pending proceedings. Therefore, even if the order directing to deposit the payment of rent was passed on 17-3-1983, still it will have to be held that even to such an order, the provisions of Order XV-A or provisions of Order 39, Rule 11, as the case may be, would still apply.
10. Shri Gulhane thereafter submitted that in fact this was a slum area in which the present house was situated and as such there was no question of filing a suit in respect of this house. He pointed out that he had called a witness, who was present with record in the Court but the Court in complete contravention of procedural law did not allow the examination of that witness. I am afraid, even here the defendant must fail. Once the defence was struck off, there was no question of any witness being examined on behalf of the defendant or in respect of the defence raised by him. This question was considered in the reported decision of the Supreme Court in : AIR1989SC162 , Modula India v. Kamakshya Singh. The Apex Court has examined the implications of the concept of the striking off defence and has also explained the implication thereof. This is how the Apex Court describes the situation :---
'Even in a case where the defence against delivery of possession of a tenant is struck off under section 17(3) the defendant tenant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled (1) to cross-examine the plaintiff's witness; and (b) to address argument on the basis of the plaintiffs case. However, when the defendant is afforded the aforesaid right he would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond every limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and 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.'
The above mentioned observation would amply clear the scope left to the defendant after the defendant's defence is struck off. In the present case, the Court was perfectly right, therefore, in not allowing examination of the witness suggested by the defendant even if he was called as a Court witness as the witness would have reiterated the facts raised by the defendant in the written statement that the house was situated in the slum area and hence the suit could not be filed against the occupant thereof. This simply was out of consideration of the Court, who had to limit itself only to the contention raised in the plaint. The Court, therefore, was justified in not examining the witness. Similar is the situation regarding challenge to the title.Firstly, the challenge to the title is haphazard and confused. In the written statement one can read the couched admissions in respect of the landlord's title but I do not want to advert to that here as it is unnecessary to consider the same.
11. In view of these confused pleadings and in view of there being admission on record in shape of rent receipts Exh. 118, whereby the tenant paid rent of one month to this very landlord, there was no question of the plaint being returned by the Small Causes Court under section 23 of the Provincial Small Causes Act. The third argument of Shri Gulhane that the Small Causes Court should not have proceeded with this suit as it involved question of title should, therefore, fail. In view of these observations I pass the following order :
The Instant Civil Revision Application is dismissed. The Judgment of the Trial Court is confirmed.