Civil Revision Application No. 705 of 1995

8th July, 2002

Petitioner Counsel: Shri A.M. DABIR, Shri L.R. PATHAK

Cases Cited:
Vinayak Vs. Chintaman, AIR 1938 Bombay 470 [Para 3]
Modula India Vs. Kamakshya Singh Deo, AIR 1989 SC 167 [Para 4]
Sangram Singh Vs. Election Tribunal, Kotah, AIR 1955 SC 425 [Para 7]

JUDGMENT

JUDGMENT :- Heard Advocate Shri A.M. Dabir h/f Advocate Shri L.R. Pathak for revision petitioner. Sole respondent, although served with the notice and Rule notice, is absent.

2. The revision petition challenges order passed by 3rd Joint Civil Judge (J.D.), Aurangabad, on 18.7.1995 in Regular Civil Suit No. 904/1994 on the file of Joint Civil Judge, Junior Division, Aurangabad. One Sonabai had filed RCS No. 436/1991 seeking injunction against present petitioner performing another marriage. However, that suit was dismissed, although said Sonabai claimed to be wife of present petitioner. Thereafter, present respondent, who is younger sister of Sonabai, in the year 1992 filed an application u/s 125 of Cr. P.C., 1973, for maintenance against present petitioner. It is the contention of petitioner that even respondent is not his wife. He had no alternative, but to file a suit for declaration that respondent is not his wife and, therefore, RCS No. 904/ 1994 was filed.

The respondent / original defendant, although appeared in the suit through her Advocate, she did not file any written statement. Court ordered the plaintiff to lead his evidence. After production of documents on 18.7.1995, the petitioner entered the witness box and as soon as his examination in chief was completed, learned Advocate for respondents / defendant was on his legs to cross examine the plaintiff. The inclination of the Judge to allow the lawyer of the defendant to cross examine the plaintiff was objected by plaintiff's lawyer by filling an application Exhibit 26, which application was rejected and hence the present revision petition.

3. The only question is whether a party, who has not filed any written statement crystallizing its defences as also specific contentions, can be allowed to cross examine the plaintiff.

As back as in 1938, in the matter of Vinayak V/s Chintaman (AIR 1938 Bombay, 470 ), it was observed as follows :

"A party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint. Where no written statement is filed, the Judge should, therefore, direct that the case be fixed for hearing in default of written statement and an order, "case is fixed for hearing ex parte," is not justified."

Thus, it is evident that merely because written statement is not filed, a suit can be treated as proceeding ex parte against defendant nor right of defendant to participate in the process of hearing from the stage he appears is taken away by failure to file written statement of defence.

4. In Modula India Vs. Kamakshya Singh Deo (AIR 1989 Supreme Court, 167), the respondent in that appeal had filed a suit on the original side of Calcutta High Court praying for decree directing the defendant / appellant to deliver vacant and peaceful possession of certain premises in Calcutta and also for mesne profits. The appellant company filed its written statement denying the averments in the plaint and the claims made therein. During pendency of the suit, several interlocutory applications were presented and orders were passed thereon directing the appellant to deposit certain sums in the Court. Ultimately, an application of the tenant praying to permit it to deposit the arrears of rents in monthly installments alongwith current rent was rejected on the ground that it was out of time. Subsequent to disposal of this application, the defence of the tenant was struck off under the provisions of Section 17 (3) of the Act ( W.B. Premises Tenancy Act ). Correctness of the order striking out the defence of the tenant was unsuccessfully challenged and had become final and was no longer at issue when the parties approached the Hon'ble the Apex Court.

It was contended on behalf of the tenant that, at worst, the order striking off of defence u/s 17 (3) would preclude the tenant only from adducing the evidence oral or documentary in support of the averments made in written statement, but is was open to the tenant to exercise his rights - (a) of cross-examining the plaintiff's witnesses; (b) of pointing to the Court the factual and legal infirmities in plaintiff's case, and (c) of addressing arguments on the basis of evidence as adduced by the plaintiff and tested by the cross examination on behalf of defendant.

No doubt, this was not a case wherein there was no written statement was filed by defendant, but as a result of striking off of defence, the written statement had for all practical purposes, become nonexistent.

The full Bench, on reference of controversy, of Calcutta High Court, by majority of 2 to 1 , decided that in a matter where the defence against delivery of possession has been struck down under Sub-section (3) of Section 17 of the W.B.Premises Tenancy Act, the defendant - tenant can not cross examine the witnesses called by the plaintiff, excepting on the point of notice u/s 13 (c) of the said Act. While allowing the appeal and restoring the suit before the trial judge, the Supreme Court held that even in a case where the defence against the delivery of possession by tenant is struck off, the defendant, subject to exercise of an appropriated discretion by the Court on the facts of a particular case, would generally be entitled - (a) to cross examine the plaintiff's witnesses: and (b) to address argument on the basis of plaintiff's case. It was further clarified that 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 object of pointing out the falsity or weakness of the plaintiff's case. It was further cautioned that in no circumstances, should the cross examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.

5. In the present case, the defence of defendant is not struck off. From that angle, he stands on somewhat better footing than the defendant in the reported case. However, the defendant has not presented any positive defence on record and with the principle of natural justice that a party can not be taken by surprise, the limitations laid down by the Supreme Court in the reported matter, although defence of defendant was struck off in that case, would also govern present matter. The defendant although can be allowed to cross examine witnesses. The scope of the cross examination can not be permitted to travel beyond limited object pointing out falsity or weakness of plaintiff's case and in any case, it can not be converted into presentation of defence theory.

6. While recording above observations, the Hon'ble the Apex Court has also considered provisions of Rules 1,5 & 10 of Order 8 of the Code of Civil Procedure, as amended in 1976 and held that an objection to aforesaid conclusion by relying upon those provisions, was not sustainable. According to Apex Court, those were only rules of permissive nature enabling the Court in an appropriate case to pronounce a decree straightway on the basis of plaint and the averments contained therein. Inspite of use of word " shall" in Rule 10 or Order 8, the Court was not obliged to pronounce the judgment, but there was an option with the Court, either to pronounce judgment or make such other appropriate order as the Court may think fit and, therefore, it is not mandatory that a judgment ought to be pronounced as soon as defence fails to file written statement.

7. In Sangram Singh Vs Election Tribunal, Kotah (AIR 1955 Supreme Court, 425). While considering the scope of Order 9 Rules 6, 7 and Order 17 Rule 2, the Hon'ble the Supreme Court has observed as follows :

"Order 9 Rule 6 (1) (a) is confined to first hearing of the suit and does not per se apply to subsequent hearings; the first hearing is either for the settlement of issues or for final hearing. If it is only for the settlement of issues, then the Court can not pass an ex parte decree on that date because of proviso to Order 15 Rule 3 (1). 'Ex parte' merely means in the absence of the other party.

When the defendant has been served and has been afforded an opportunity of appearing then if he does not appear, the Court may proceed in his absence. But the Court is not directed to make 'ex parte' order. Of course, the fact that it is proceeding 'ex parte' will be recorded in the minutes of its proceedings, but that is merely a statement of the fact and is not an order made against the defendant in the sense of an 'ex parte' decree or other 'ex parte' order, which the Court is authorised to make. All that Rule 6 (1) (a) does is to remove a bar and no more. It merely authorises Court to do that which it could not have done without this authority namely to proceed in the absence of one of the parties."

It was further observed:

"If the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceed without a written statement, and O.9 R.7 makes it clear that unless good cause is shown the defendant can not be relegated to the position that he would have occupied if he had appeared. That means that he can not put in a written statement unless he is allowed to do so and if the case is one in which the Court considers a written statement should have been put in, the consequences entailed by O.8, R.10 must be suffered."

8. By observing that Order 17 Rule 2 applies if the defendant does not appear at the adjourned hearing and the Court is given widest possible discretion, either to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit, the Apex Court held that it was not a case in which defendant did not appear at the first hearing. The Election Tribunal did not exercise its discretion because it considered that it had none and thought that until the ex parte order was set aside, the defendant could not appear, either personally or through counsel. No good cause was shown and so the defendant had no right to be relegated to the position that he would have occupied if he had appeared on 17.3.1953 but he had right to appear through counsel on 20.3.1953 and take part in the proceedings from the stage at which they had then reached subject to such terms and conditions as the Tribunal might think fit to impose. It was held that there was no justification for not allowing the counsel to argue.

Of course, in this matter, the Supreme Court did not express any view on the aspect whether three witnesses who were already examined by other party after appearance of the counsel of appellant, should have been allowed to be cross examined by the appellant and the aspect was left to judicial discretion of the Election Tribunal.

9. However, in the light of ratio laid down by the Supreme Court in the matter of Modula India (supra), the omission on the part of defendant to file written statement of defence will not deprive the defendant an opportunity to participate in the proceedings from the adjourned date of hearing. The learned trial Court, in allowing Advocate to cross examine the plaintiff, therefore, appears to have committed no illegality or material irregularity. The scope of such cross examination would be absolutely limited as indicated in the case of Modula India.

10. For the reasons above, the revision petition is dismissed. Rule discharged.

Revision dismissed