Siddhartha Varma, J. - (1.) A suit being suit No. 38 of 1987/1988 was filed in the year 1988 by respondent Nos. 2 and 3 with respect to plot No. 107 and plot No. 115 wherein the plaintiffs had claimed to be Bhumidhars of the said plots. When the suit was decreed ex-parte on 19.07.1988, the petitioner-defendant sucessfully got the suit restored to its original number. The suit, however when upon being renumbered as 67 of 2002/2003 was again decreed ex-parte on 5.11.2007, the petitioner filed a revision, which was dismissed on 4.12.2009. The Trial Court had decreed the suit after observing that the defendant had absented itself. It had also not taken into account the Written Statement as had been filed by the defendants as it had been very convincingly portrayed by the plaintiff that the thumb impression on the Written Statement was not that of the defendant. Further, the Trial Court had decreed the suit ex-parte only on the terms of the ex-parte judgment it had passed earlier on 19.07.1988. The Revisional Court had also affirmed the trial court's judgment. Aggrieved thereof, the petitioner has filed the instant writ petition. The counsel for the petitioner made the following submissions:-(i) Upon remand the petitioner had filed his written statement, and thereafter had not been able to appear, yet the trial court decreed the suit, without basing its judgment on any issue whatsoever, and therefore, the same deserves to be set aside.(ii) He has drawn the attention of the Court to Order XIV Rule 2 of the CPC, and therefore the same is being reproduced hereunder:-"2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--(a) the jurisdiction of the court, or(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
(2.) He submitted that the trial court had to, after framing issues under Order XIV Rule I of the CPC, pronounce its judgment on all the issues. This not having been done, the judgment was a nullity. (iii) The findings, which the trial court had arrived at regarding the signatures on the written statement being forged, also could not have been arrived at without framing a specific issue to that effect. Only after issues are framed, evidence could have been led. Simple believing of the expert at the instance of the plaintiff was not within the domain of the trial court.(iv) He relied on the judgment of Hon'ble the Supreme Court reported in ; Modula India vs Kamakshya, 1988 4 SCC 619 and stated that the plaintiff had to stand on his own legs and the court even if it took recourse to Order VIII Rule 10 of the Code of Civil Procedure it had to first frame issues and thereafter pronounce its judgment on all issues. The Court has to be, prima facie, satisfied with the correctness of the case of the plaintiff. Learned counsel further relied on the judgment reported in ; Arjun Singh vs Mohindra Kumar and others, 1964 AIR(SC) 993 and has stated that in the absence of the defendant the court should have first ordered for proceeding ex-parte and subsequently if the defendant had appeared and filed an application for the recalling of the order, then the court should have either recalled the order or should have proceeded from where the court had ordered the proceeding to proceed ex-parte, with the participation of the defendant. As the learned counsel for the party read out a certain portion of the judgment reported in 1989 SC 162, the same is being reproduced here as under:"We agree that full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff's case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiff's witnesses really constitutes a finishing touch which completes the plaintiff's case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff's witnesses cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross- examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute.To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiff's evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff's statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff's case. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to (PG NO 358) certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiff's witnesses by the defendant whose defence is struck off, procedural chaos may result unless great case is exercised and that it may be very difficult to keep the cross- examination within the limits of the principles discussed earlier. Under the guise of cross-examination and purported demolition of the plaintiff's case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion.A third safeguard which we would like to impose is based on the observations of this court in Sangram Singh's case. As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff."
(3.) It has further been submitted that as neither was the case directed to proceed ex-parte, nor was the defendant given an opportunity to examine the witnesses, the orders were palpably erroneous. (v) Learned counsel for the petitioner further submitted that the revisional court also fell in error when after rejecting the written statement it came to the conclusion that the suit had to be decreed and an order had to be passed against the defendant.(vi) It was definitely not proper on the part of the Trial Court to have restored the order dated 19.07.1988, which had been set aside earlier by the Revisional Court.;