- (1.) The plaintiff-respondents filed a suit for possession of 8 Marlas of land out of Khasra No. 29/32 situate at village Bhareli, tehsil Kalka, against the appellants on the ground that they were the owner of the said land and the appellants were in illegal possession of the same. The appellants asserted in the written statement filed by them, that they had been in possession of this land for over 24 years as owners. In the course of trial, an adjournment was granted at the request of the appellants on payment of costs which they failed to pay, on that basis their defence was struck off. Subsequently, when the plaintiff respondents led their own evidence, the appellants were not allowed to cross-examine the witnesses produced by them. In this manner, on the basis of some evidence which was not allowed to be tested by cross-examination, the suit of the respondents was decreed. The first appeal filed by the appellants was also dismissed. They have now come up in second appeal before me.
(2.) It has been vehemently argued by Mr. Agnihotri that even if the defence of a defendant in a suit is struck off that does not disentitle him to participate in the remaining proceedings of the suit and to assist the learned trial Court that the witnesses being examined by the other party were not the witnesses of the truth and then to argue that the plaintiff had not been able to make out a prima facie case. It is submitted that the procedure adopted by the learned trial Judge has resulted in manifest miscarriage of justice.
(3.) A similar matter came up for consideration before the Supreme Court of India in M/s Babbar Sewing Machine Co. v. Trilok Nath Mahajan, 1979 2 RCR(Rent) 581 wherein their Lordships of the Supreme Court observed as under :- "It was further contended that the High Court was in error in observing that in view of the clear language of Order XI, Rule 21 the defendant has no right to cross examine the plaintiff's witness. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant be placed in the same position as if he has not defended. This indicates that once the defence is struck off under Order XI, rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh v. Election Tribunal, 1955 AIR(SC) 425 it was held that if the Court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the Court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the Court may dismiss the plaintiff's suit. Every Judge in dealing with an ex-parte case has to take care that the plaintiff's case is, at least, prima facie proved. But as we set aside the order under Order XI, Rule 21, the contention does not survive for our consideration. We, therefore, refrain from expressing any opinion on the question.";