Abhra Aich vs Arati Paul And Others
2023 Latest Caselaw 4233 Cal

July 14, 2023 Sl. No.6 Court No.19 s.biswas CO 2001 of 2023 Abhra Aich vs.

Arati Paul and others

Mr. Partha Pratim Roy Mr. Lakshminath Bhattacharya ... for the petitioner Mr. Kushal Chatterjee Mr. Shibjit Mitra ... for the opposite parties

This revisional application has been filed

challenging an order dated May 4, 2023, passed by

the learned Civil Judge (Junior Division), 4th Court,

Alipore, South 24 Parganas in Ejectment Suit No.127

of 2017.

By the order impugned, the learned court below

rejected the application of the defendant No.3

praying for liberty to cross-examine the plaintiff's

witness, PW1. The learned court below rejected the

application, inter alia, holding that the application

filed by the defendants was redundant in view of the

fact that his defence has been struck off and the

order striking out the defence, had been upheld by

the Hon'ble High Court.

Mr. Roy, learned advocate appearing on behalf

of the petitioner, submits that the order suffers from

perversity. Reliance has been placed on the decision

of the Hon'ble Supreme Court in the case of Modula

India v. Kamakshya Singh Deo reported in AIR

1989 SC 162. It is submitted that even if the

defence had been struck off by the court, the right to

cross-examine the plaintiff's witness cannot be taken

away.

Mr. Chatterjee, learned advocate appearing on

behalf of the plaintiff/opposite party no.1, submits

that the issue involved in this revisional application

is not simpliciter whether the defendants would be

allowed to cross-examine the plaintiff's witness or

not.

According to Mr. Chatterjee, this suit had been

fixed for ex parte arguments on February 6, 2023 on

an application filed by the plaintiff. Upon contested

hearing, the application was allowed. Thereafter, the

defendant could not have asked for liberty to cross-

examine the plaintiff's witness when the order fixing

the suit for ex parte hearing had not been recalled.

According to Mr. Chatterjee, no such prayer was

ever made. Hence, learned court below rightly

rejected the application by which the substituted

defendant no.3 had sought permission from the

court to cross-examine the plaintiff's witness.

Relying on a decision of the Hon'ble Apex Court

in the matter of Arjun Singh v. Mohaindra kumar

and others reported in AIR 1964 SC 993, Mr.

Chatterjee submits that once the suit was decided to

be heard ex parte, the learned court below had no

other option, but to complete the argument of the

plaintiff and pass judgment.

Mr. Chatterjee, further submits that although

the petitioner/substituted defendant no.3 filed an

application praying for liberty to cross-examine the

plaintiff's witness, but in the said application, no

reasons had been assigned as to why such prayer

was not made earlier. The defendant no.3 chose to

waive his right by not coming at an earlier stage.

Heard the parties. The decision of Arjun Singh

(supra) cited by Mr. Chatterjee, is not applicable in

the facts of this case, inasmuch as, the Hon'ble

Supreme Court had held that once the hearing had

been completed and judgment had been reserved,

the party opposing the suit could not come at such a

later stage and pray for recalling of the order of ex

parte hearing of the suit. In this case, the argument

had not commenced. Hence, the petitioner is

allowed to cross-examine the PW.

This court is of the view that the substituted

defendant no.3 came into the proceedings later. The

application filed by the plaintiff for ex parte hearing

of the suit was objected to by the petitioner.

Subsequently, when the suit was fixed for ex parte

argument of the plaintiff, the petitioner once again

approached the court by filing the application, so

that he may be allowed to cross-examine the PW.

Right to cross-examine of the plaintiff, when

defence has been struck off, has been upheld by the

Hon'ble Apex Court. The defendant does not have

any right to argue on other points or make out his

own case. He may only deal with the plaint case.

Thus, one last opportunity should be given to

the defendant no.3 to cross-examine PW. However,

on account of the delay, the PW should be

compensated with cost.

Reliance is placed on the decision of Modula

India (Supra), where the limited right to cross-

examine the plaintiff's witness has been upheld.

Therefore, the defendant no.3 is permitted to cross-

examine the plaintiff and to advance arguments on

the plaint case. As the defence was struck off, the

position of the defendant no.3 is that of a man who

on account of non-compliance of laws, stands

precluded from arguing his own case in the suit.

Thus, the order impugned is set aside. The

order fixing the suit for ex parte argument is also set

aside. The cross-examination of PW shall be

completed in a day, to be fixed by the learned court

below, provided the defendant no.3 pays cost of

Rs.5000/- to the plaintiff or to the learned Advocate

of the plaintiff, within a period of two weeks from

date. Cost is being awarded on account of the delay

and the harassment caused to the plaintiff. The

learned court below, thereafter, shall complete the

hearing of the suit within two months. No

unnecessary adjournments shall be given to the

defendant no.3 on the next dates.

The revisional application is disposed of.

All the parties are directed to act on the basis of

the server copy of the order.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Shampa Sarkar, J.)