KAMAL SINGH Vs. SAT PAL

JUDGEMENT

(1.) This is plaintiffs appeal against the remand order of the Additional District Judge whereby the decree of the trial Court passed in favour of the plaintiff was set aside and the case was remanded for fresh decision.

(2.) During the trial, ex parte proceedings were taken against the defendant on March 6, 1981. On that date, the plaintiff examined his two witnesses. On the very next date, i.e. March 7, 1981, an application for setting aside the ex parte proceedings was filed. Therein, the prayer made was that the defendant be allowed to cross-examine the two witnesses of the plaintiff examined on March 6, 1981. That application was allowed on January 25, 1982 and the case was fixed for March 30, 1982 for cross-examining the said witnesses. On that date, in spite of the opportunity having been afforded to the defendant, no cross-examination was made of the said two witnesses. Ultimately, the trial Court decreed the plaintiffs suit vide its judgment and decree dated February 5, 1983. In appeal, it was contended on behalf of the defendant, that if the statement of P.W.4 Kamal Singh plaintiff and that of P.W.5 Chander are excluded out of consideration, then the suit of the plaintiff is bound to fail. According to the lower appellate Court, since these two witnesses were examined in the absence of the defendant and they being the material witnesses, the fate of the case is dependant on their statements. It has been further observed that the counsel for the defendant might have been under the impression that the case is fixed for fresh evidence of the plaintiff and that if that was not done then there was nothing to be cross-examined. On that basis, the decree of the trial Court was set aside and the case was remanded for fresh decision after affording the parties sufficient opportunity to prove their case.

(3.) The learned counsel for the appellant contended that it was a case where ex parte proceedings were set aside under Order 9 Rule 7, C.P.C. and therefore, the defendant was entitled to proceed from the stage he was proceeded ex parte. Moreover, argued the learned counsel, the only prayer made in the application filed under Order 9 Rule 7, C.P.C. was that the defendant be allowed to cross-examine the two witnesses examined on March 6, 1981. That prayer was allowed. In spite of that, the defendant did not avail of the opportunity of cross-examining on March 30, 1982. According to the learned counsel, the whole approach of the lower appellate Court in this behalf is wrong, illegal and misconceived. In support of his contention, he referred to Kumara Pillai v. Thomas, AIR 1961 Ker 287.