The phrase “defence struck off” or “defence struck out” is not unknown in the sphere of law. Indeed it finds place in various provisions of Code of Civil Procedure (CPC) and other special and local laws. This blog tries to explain the term defence struck off in general without referring to any provision in particular and other related concepts like when it is done, what are the steps that the defendant can still do at trial and what is the procedure thereafter.
When a defence is struck off in the circumstances mentioned in CPC or any other law, it means that the defendant be placed in the same position as if he has not defended. But it does not necessarily follow that once the defence is struck off, the defendant is completely helpless and his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default.
Principles on which Defence can be struck off
The principle governing the court’s exercise of its discretion is that it is only when the default on the part of the defendant to perform an act as ordered by the court is wilful and as a last resort the court should strike out the defence when the defendant is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court to arrest the trial of the suit.
As pointed out by Lord Russel C.J. in Reg. vs Senior and affirmed by Cave L. C. in Tamboli vs G.l.P. Railway, ‘wilfully’ means that:
“the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it”.
So it is settled law that the defence to be struck off only in extreme cases as a last resort where obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established and that too after giving him a reasonable opportunity of hearing.[i] This is in consonance with the fact that the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it.[ii]
So the power of striking out of the defence should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.[iii]
In Khajah Assenoolla Joo vs Khajah Abdool Aziz[iv], Pigot J. made an order striking out the defence of the defendant under section 136 of the CPC, 1882 in consequence of non-compliance with the earlier order for production of certain documents, and at the same time mentioned that the party against whom the order was made might come in and seek to set it aside on showing sufficient grounds for the application.
What defendant can do after his defence is struck off by the court
Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff’s witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him.
A party whose defence is struck off can still appear, when the suit is called on for hearing, not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiffs case on evidence that the Court will not pass any decree in the plaintiff’s favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the Court. These are, valuable rights under the Code which are not taken away by striking off defence.
It has to be understood that filing of written statement is not the only way of defending a suit. A defendant may ably and successfully defend a suit against him by cross-examination and arguments.
Why Defendant is provided with Right to Cross-Examine the Plaintiff Witnesses even after striking off his defence
While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff’s case by the cross-examination of his witnesses, but it would be equally correct to say that the cross-examination of the plaintiff’s witnesses really constitutes a finishing touch which completes the plaintiff’s case. It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff’s witnesses cannot constitute the plaintiff’s evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff’s witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff’s evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the defendant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiff’s witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute.
Moreover it is basic principle that where a plaintiff comes to the court he must prove his case even where no defendant appears. It will at once be clear to say that the Court can only do this by looking the plaintiff’s evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff’s statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff’s averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff’s case. So on this reasoning the defendant should be allowed his right of cross-examination and arguments.[v]
But this right is subject to some important safeguards
Firstly, the defendant cannot be allowed to lead his own evidence.
Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiff’s witnesses by the defendant whose defence is struck off, procedural chaos may result unless great care is exercised and that it may be very difficult to keep the cross-examination within the limits. Under the guise of cross-examination and purported demolition of the plaintiff’s case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. But this is a difficulty of procedure, rather than substance. This is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion.[vi]
The third safeguard is based on the observations of Hon’ble court in Sangram Singh’s case. As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant in spite of him not having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case, the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceedings the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff.
How the case Proceeds when the Defence of Defendant is struck off
Where a defence is struck off, the order would be that the defendant be placed in the same position as if he has not defended. This indicates that once the defence is struck off, the position would be as if the defendant had not defendant and accordingly the suit would proceed as if it was ex-parte.[vii]
In Sangram Singh vs Election Tribunal, [1955] 2 SCR 1, it was held that if the court proceeds ex parte against the defendant under Order IX, Rule 6(a)[viii], the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff’s suit. Every Judge in dealing with an ex parte case has to take care that the plaintiff’s case is, at least, prima facie proved.
Conclusion
Based on the above discussion it can be said that in a case where the defence of the defendant is struck off under provisions of law, the defendant, subject to the exercise of appropriate discretion by the court on the facts of a particular case, would generally be entitled:
- to cross-examine the plaintiff’s witnesses; and
- to address the argument based on the plaintiff’s case.
The defendant 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 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.