JOSEPH LOUIS MARTYRES Vs. KESARIMAL MAGANLAL SONI

JUDGEMENT

(1.) By this petition, the petitioners challenge the judgment and order dated 24 April, 1992 passed by 8th Additional District Judge, Pune allowing Miscellaneous Civil Appeal No. 314 of 1987 filed by the respondent No. 1.

(2.) The petitioners are the owners and landlords of the suit premises. Respondent No. 1 is a tenant and respondent Nos. 2 to 4 are alleged to be the sub-tenants. Petitioners filed a suit bearing Regular Civil Suit No. 2142 of 1976 against the respondents in the Small Causes Court, Pune for possession. On the date of hearing, respondents remained absent. Evidence of the petitioner was recorded in the absence of the respondents. THE trial Court held that respondent No. 1 was a defaulter in payment of the rent and passed a decree for arrears of rent and possession under section 12(3)(a) of the Bombay Rents (Hotels and Lodging Rates Control) Act 1947(for short "Bombay Rent Act"). THE trial Court also held that the respondent No. 1 had sublet part of the suit premises to the respondent Nos.2/4 and that by subletting the respondent No. 1 was also profiteering, and passed a decree also on the ground of the subletting and profiteering.

(3.) While rejecting an application made under Order 9, Rule 13 of the Code, the Small Causes Court has held that the decision was not an ex parte decision inasmuch as the defence of the respondent No. 1 -defendant No. 1 was struck off on the ground of non-deposit of the arrears of rent in spite of the order passed under section 11(4) of the Bombay Rent Act. The trial Court held that the effect of striking off the defence was that though the respondent No. 1 (defendant No. 1) had appeared, he could not have contested the suit. In the circumstances the decree passed in the absence of the respondent No. 1 could not be said to have been passed under Order 9, Rule 13 of the Code. Consequently, the application Order 9, Rule 13 was not maintainable. The Appellate Court reversed this decision and by holding that the decree would be regarded as ex parte and application under Order 9, Rule 13 would be maintainable. When the defence of the defendant is struck off, the defendant is not allowed to prove the case which he has initially set up by way of a defence in the written statement but that does not mean that the defendant is precluded from taking any part in the suit. He can still appear at the hearing and may be permitted to cross-examine the plaintiff and show even on the averments made in the plaint and/or on the evidence adduced by the plaintiff, no decree can be passed against him. (see Industrial Corporation vs. Kiln Plastic Products, 1976 1 SCC 91and Modula India vs. Kamakshya Singh Deo, 1988 4 SCC 619. It is one thing to say that decree is refused on account of the defence of the defendant being accepted and another thing to say that the suit is dismissed because the plaintiff has not proved his case. Consequently, it cannot be said that the respondent No. 1 - defendant No. 1 could not have participated in the suit. The decree which was passed in the absence of the respondent No. 1 could therefore still be an ex parte decree and an application under Order 9, Rule 13 could be filed by him for setting aside the said ex parte decree.