SHESHRAO Vs. SHILPA SHESHRAO

JUDGEMENT

(1.) A reference is made by the learned Single Judge (A. S. Oka, J.) to resolve the conflict of opinions as to the nature and scope of the rights available to the defendant whose "defence has been struck out" is taken up for final hearing at the admission stage by consent of parties. Why Reference:

(2.) IN the case of Ganpat Shankar Waghmare vs. Smt. Anjalibai Rao Waghmare, reported in 2001 (2) Mh. LJ. 756 learned Single Judge (Khanwilkar, J.) has taken a view that once defence is struck out under Order 39, Rule 11 of the Code of Civil Procedure (CPC for short) as amended by the Bombay High Court, the defendant in consequence thereof looses his right to cross-examine the plaintiff and his witnesses. Whereas in the case of Suryabhan Ranuba Wagh vs. Shobha Bhimrao Pawar, reported in 2003 (1) Mh. L. J. 512 learned Single Judge (Dabholkar J.), while considering the case of absence of written statement has ruled that the defendant cannot be denied right to participate in the process of hearing or cross-examine the plaintiff. The defendant although can be allowed to cross-examine witnesses, the scope of cross-examination cannot be permitted to travel beyond limited object of pointing out falsity or weakness of the plaintiffs case and in any case, it cannot be converted into presentation of defence theory.

(3.) THE learned Single Judge (Oka J.) having confronted with the above opposite views was required to pass an order directing placement of papers before the learned Chief Justice as required by rule 7 of Chapter 1 of the Appellate Side Rules for resolving the conflict by a larger Bench.