Deoki Nandan, J. - (1.) This is a defendant's second appeal in a suit for ejectment and arrears of rent. The substantial question of law on which notice was issued to the respondents at the hearing under Order 41, Rule 11 of the Code of Civil Procedure is the one contained in ground No. 7 of the memorandum of appeal which is to the effect that "the court below had no jurisdiction to proceed ex parte even though defence had been struck off."
(2.) The appellant's defence was struck off by the trial court under Order 15, Rule 5 of the Code of Civil Procedure, by order dated 5th November, 1973. The operative portion of the order reads as follows: ORDER 41-C is hereby allowed. The defence of the defendant is hereby struck off. The suit shall proceed ex parte against the defendant. Fix 29-11-1973 for ex parte hearing. "The parties had already gone to trial and the plaintiff's evidence had already been recorded and even an order passed on the 16th August, 1973 for the issue of a commission to the District Judge, Ambala for examination of a witness at the defendant's instance. The defendant thereafter made repeated attempt to have the order striking off his defence recalled. These attempts failed, when the trial court took up the suit for final hearing on 23rd April, 1975, Shri S.M. Srivastava Advocate was present for the plaintiff and Shri R. Singh Advocate for the defendant. Learned counsel for the plaintiff stated that he shall not lead any additional evidence. The trial court thereupon observed that the suit is proceeding ex parte against the defendant as the defence has been struck off under Order 15, Rule 5 of the Code of Civil Procedure." The trial court heard the arguments and reserved judgment fixing 25th April, 1975 for pronouncing it. A further note has been added to the above orders of the trial court and it is to the effect that the defendant's evidence having been struck off, no commission need be issued to the District Judge, Ambala, as the defendant's evidence is not to be recorded due to the striking off of the defence.
(3.) On these facts Mr. V. K. Barman, learned counsel for the appellant contended before me that the order directing the suit to proceed ex parte amounted to a refusal to permit the defendant to participate in the further hearing of the suit after striking off his defence; and further that his evidence for recording which a commission had already been ordered to be issued before the striking off the defence could not have been shut out, and the order recalling the commission was illegal.;