KRUSHNA CHANDRA SAHOO Vs. SHYAMSUNDAR SAHOO

JUDGEMENT

(1.) THE petitioner is Defendant No. 6 in C.S. No. 1 of 2002 pending before the Civil Judge (SD), First Court, Cuttack. The said suit as one for partition and for setting aside a sale deed executed in favour of a stranger purchaser and for other ancillary reliefs. Admittedly, the petitioner did not file his written statement within ninety days as mandatorily required under Order 8, Rule 1, CPC. He was therefore set ex parte. Thereafter, the petitioner filed a petition under Order 9, Rule 7, CPC for setting aside the ex parte order. He also filed a written statement with a petition to the accept the same, but the Trial Court rejected both the petitions on the ground that in consonance with Order 8, Rule 1, CPC, the written statement filed by a defendant after ninety days could not be accepted. The Court below also relied upon several decisions.

(2.) THERE is no quarrel about the proposition that after lapse of ninety days a written statement cannot be accepted as per provision of Order 8, Rule 1, CPC. But then, Order 8, Rule 9, CPC clearly stipulates that a Court may at any time require a written statement on additional written statement from any of the parties, and fix a time of not more than thirty days for presenting the same.

(3.) The dispute as to what should be the right of a defendant who has not filed his written statement or whose defence has been struck off was before the Supreme Court in the case of Modula India v. Kamakkshya Singh Deo, reported in AIR 1989 SC 162. In the said case the Supreme Court held that even in a case where the defence is struck off, the defendant, subject to the exercise of an appropriate discretion by the Court on facts of a particular case, would be generally entitled to take part in the proceeding. A reading of the aforesaid decision leads to the conclusion that even without filing a written statement a defendant can be permitted to disprove the plaintiff case and it would not be proper to set the defendant ex parte only on the ground that he has not filed written statement. If the defendant is appearing in Court in person or through advocate, he cannot be set ex parte and should be allowed to take part in the trial of the suit and even should be permitted to exercise his right of cross -examination and arguments. But the law is equally clearly that this right should be circumvented to certain safeguards, i.e., the defendant cannot be allowed to lead evidence of his own, or try to substantiate his own case, nor can his cross -examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. Under no circumstances, a defendant who has not filed his written statement should be permitted to cross -examine beyond his legitimate scope or to convert itself virtually into presentation of a defendant's case, either directly or in the form of suggestion put to the plaintiff's witnesses. He can address argument on the basis of the plaintiff's case and not beyond. In view of such settled legal position, the impugned order refusing to set aside the ex parte order and rejecting the petition filed under Order 8, Rule 7, CPC is not correct.