Phool Kanwar and Others vs Baru Ram and Others

S.S. Sodhi, J.—Where an order directing that the defendant be proceeded against ex-parte becomes final and the defendant subsequently appears and wants to join in the proceedings, can he be permitted to lead evidence and examine witnesses? Herein lies the controversy raised.

The defendant-Baru Ram, was proceeded against exparte and this order became final against him Later, when he appeared in court, the trial court not only permitted him to participate in (he proceedings, but also to lead evidence in support of his case. In doing so, it purported to follow the judgment in Radhamoni Padhiri v. Tanqudu Jaganatham and Anr.,1, where it was held that the defendant-who had been proceeded against ex-parte and was allowed to join the proceedings was not only entitled to cross examine the witnesses of the plaintiff, but also to lead evidence in support of his case.

The view of the Supreme Court on this point is, however, to the contrary and must therefore, prevail In Modula India v. Kamakhya Singh, Deo,2, it was held that when the defence of a defendant is struck of, the defendant is entitled to cross-examine the plaintiff''s witnesses and also to address arguments, but he cannot be permitted to adduce evidence in support of his case. In other words, his right was limited pointing out the falsity or weakness in the plaintiff''s case by demonstrating that his witnesses were not speaking the truth or that the evidence led by the plaintiff was not sufficient to establish his case, but he cannot lead evidence on his own

Such thus being the settled position in law, there can be no escape from the conclusion that the trial court clearly fell in error in holding the defendant entitled to lead evidence to controvert that led by the plaintiffs. The impugned order of the trial court is consequently modified accordingly.

This revision petition is thus accepted with costs. Counsel fee Rs. 300/-