Writ Petition No. 2496 of 2011,Writ Petition No. 2476 of 2011,Writ Petition No. 2493 of 2011,Writ Petition No. 2497 of 2011

21st November, 2011

Petitioner Counsel: Mr. V.D. SALUNKE, Advocate holding for Mr. B.A. SHINDE
Respondent Counsel: Mr. S.P. BRAHME, Mr. N.V. GAWARE

Cases Cited:
Suryabhan Ranuba Wagh Vs. Shobha Bhimrao Pawar, 2003(1) ALL MR 1070 =2002 Mh.L.R-4-10 [Para 3,5]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard with the consent of learned Counsel for the parties.

2. All writ petitions raise only point that, whether in view of the loss of opportunity to file written statement since the defendants in respective matters were not present on the date when the matter was fixed for filing written statement can be deprived from cross examining the plaintiff on the ground that, the matter proceeded exparte against respective respondents.

3. Learned Counsel appearing for the petitioners submits that, though the petitioners did not file written statement and the matter proceeded exparte against the petitioners, however, they have right to cross examine the plaintiff restricted to the examination in chief. Learned Counsel for the petitioners in support of his contention has placed reliance upon the judgment in the case of Suryabhan Ranuba Wagh vs. Shobha Bhimrao Pawar reported in 2002 Mh.L.R-4-10 : [2003(1) ALL MR 1070] and submitted that, these writ petitions may be allowed thereby setting aside the impugned orders challenged in these writ petitions.

4. On the other hand, learned Counsel for the respondents would submit that, since the matter proceeded exparte against the petitioners herein i.e. original defendants, in respective matters, there was no question of cross examination of the plaintiff by the respective defendants. Therefore, the Counsel for the respondents submits that, these writ petitions may be dismissed.

5. I have given due consideration to the rival submissions. The point arise in these writ petitions is no more res-integra in view of the authoritative pronouncement of this Court in the case of Suryabhan Ranubawagh, [2003(1) ALL MR 1070] (supra). Para-9 of the said judgment reads thus :

"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 high Court held that 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."

6. Therefore, from reading para-9 of the judgment cited supra, it is abundantly clear that the omission on the part of defendants to file written statement of defence will not deprive the defendants an opportunity to participate in the proceedings from the adjourned date of hearing. Therefore, the petitioners in the present case, who are the defendants were entitled to cross examine the plaintiff in respective suits. However, it appears that, the learned trial Court by impugned order declined such prayer of the petitioners to cross examine the plaintiff on the ground that, the suit proceeded exparte against the defendants and the application of the defendants for setting aside exparte order is rejected and the said order has been confirmed by this Court. That appears to be only ground on which 3rd Joint Civil Judge, Senior Division, Ahmednagar held that the defendants are not entitled to cross examine the plaintiff or any other witness of any party. Therefore, the orders impugned in the respective petitions, are contrary to the judgment of this Court and in particular-9 of the judgment cited supra. Therefore, the impugned orders in respective petitions are quashed and set aside. The petitioners herein, who are the defendants, will be entitled to cross examine the plaintiff on the date fixed by the trial Court and will not ask for unnecessary adjournment unless there is an extraordinary circumstance for asking the adjournment.

7. Writ Petitions stand allowed and disposed of. Rule made absolute to the above extent.

Petitions allowed.