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TMI Blog1991 (11) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... g three grounds :-- 1. that the tenant was in default of rent for a period of more than six months; 2. that he had sub-let the tenement to Jai Narain chaudhary and 3. that the shop in question lay unused for more than 10 months when the suit was filed. On the aforesaid three grounds, trial court framed three issues. Issue No. 1, on which the suit was decreed, was whether the defendant had not paid rent for the period from 11-9-1982 to July, 1985. The second and third issues were to the effect as to whether the defendant had stopped business by subletting the shop. Second and third issues were decided against the plaintiff whereas issue No. 1 was decided in her favour. 3. On filing the suit, an application under Section 13(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or tendered the amount of rent due from him for six months; 4. Learned counsel for the appellant opened his submission by contending that even if the appellant was held to be a defaulter, but as he was ready and willing to pay the rent of the shop let out to him, he would not be liable to be evicted. Readiness or willingness, however, has to be demonstrated by showing that the tenant was prepared to comply with the provisions of Section 13 of the Act and willing to pay the rent. In the instant case, the order under Section 13(4) was made long time back but the tenant, at no point of time, deposited the rent in the trial court and it is on account of his failure to do so that a decree of ₹ 9000/- towards arrears of rent for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (b) to address argument on the basis of the plaintiff's 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 the very limited objective of pointing out the falsity or weakness 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. 7. In view of the aforesaid decision of Hon'ble Supreme Court, though the defence had been struck off, the appellant was not preclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low that the non-payment of arrears of rent, for which the suit had been filed, was fully established. 8. Criticism of the learned counsel for the appellant, however, was that as Bahikhatas had been filed by the appellant, the same should have been relied upon and not discarded on flimsy and scanty grounds, as was done by the trial Court. I have already pointed out above that the defence of the appellant had been struck off and result of striking out the defence would be that the appellant could not refer to his evidence for establishing his claim in respect of payment of rent. In this regard, following paragraph from the 'Halsbury's Laws of England-Fourth Ed. at page 57' is relevant :-- The power so to order is compleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence which could be led by the appellant and they had lost the efficacy of providing a guide to proper mode of trial. Alternatively, the court below examined threadbare oral and documentary evidence adduced by the defendant-appellant and came to the conclusion that the Bhaikhatas produced by him for proving the payment of rent, were unreliable and suspicious. An entry in Bahikhata is an admission by the maker thereof in his own favour and it is accepted as evidence only if it strictly complies with the requirements of being kept regularly and in the ordinary course of business. The words 'regularly kept' mean account kept in accordance with certain fixed method or form referring to system. Section 34 of the Evidence Act although dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MAINE PESH NAHIN KIYA..... 10. Briefly the case of the defendant-appellant was that the cloth had been supplied to Satya Narain, husband of the plaintiff-respondent for the amount of rent and that the amount was mentioned in the bills but these bills were not produced. This statement establishes that the bills which could have some evidentiary value to establish the case of the defendant-appellant, were not coming forth and were withheld. The Court below, therefore, rightly concluded that the defendant-appellant miserably failed to prove the theory of payment, taken up in the written statement. 11. Another important fact, which is established by the own showing of the defendant-appellant is that he admitted that Satya Narain, the hu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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