Point of Law: Cross examination - it is evident that it is like an ex-parte decree and even an opportunity to cross examine the plaintiff’s witness was denied. In the above circumstances we are of the opinion that an opportunity may be given to the defendants to contest the suit on merits.

JUDGMENT :

P.N. DESAI, J.

RFA No.100309/2017 is filed assailing the judgment and decree passed in O.S.No.83/2015 dated 30.11.2016, by the I Addl. Senior Civil Judge, Gokak.

2. RFA No.100234/2018 is filed challenging the final decree dated 23.3.2018, passed in FDP No.9/2017.

3. At the stage of admission itself, by consent of both the sides, we have heard the learned counsel appearing for both the parties.

4. The appellants in both appeals were defendants No.1 and 2 before the trial Court and respondents were the plaintiffs No.1 to 3. For the sake of convenience, they will be referred as per their respective ranks before the trial Court.

5. The brief plea of the plaintiffs before the trial Court is that, the plaintiffs and the defendants are brothers and sisters, they belong to Muslim caste and governed by Mohammedan Law. It is stated that, the propositus of plaintiffs and defendants died on 17.6.1995 leaving behind his wife and children as legal heirs. The defendants without the consent and knowledge of the plaintiffs got mutated their names to the suit schedule properties. The plaintiffs demanded their legitimate share but as the defendants denied, this suit for partition and separate possession came to be filed.

6. The defendants, though appeared through counsel, did not file their written statement. Thereafter plaintiff No.1 got herself examined as PW.1 and one more witness was examined on behalf of the plaintiffs as PW.2. Six documents were marked as Exs.P.1 to P.6. After hearing the arguments of plaintiffs’ counsel, the suit was decreed.

7. The learned counsel for the defendants argued that the defendants were not given sufficient opportunity to contest the suit. The main ground urged by the learned counsel for the defendants is, the trial Court committed illegality by denying right of the defendants to cross examine the plaintiffs’ witnesses, only on the ground that defendants had not filed written statement. The trial Court decreed the suit without hearing the defendants. The learned counsel argued that the suit was barred by law of limitation, and the defendants have got evidence to show that the plaintiffs are not entitle to any relief.

8. On the other hand, learned counsel for the respondents supported the trial Court judgment and submits that interference of this Court is not required.

9. We have perused the copy of the order sheet of the trial Court. It is evident that on 13.7.2015, defendant No.2 appeared and on 18.9.2015 defendant No.1 filed appearance voluntarily through counsel and on that day itself the written statement of defendant No.2 was taken as not filed. Then, on 17.10.2015, written statement of defendant No.1 was also taken as not filed. The plaintiffs took time more than three times to lead evidence and examine a witness as PW.1. On 13.4.2016, one more witness was examined as PW.2. The further proceeding was deferred for hearing on question of law. The learned counsel for the appellants submits that the said question of law is to ascertain whether defendants can cross examine plaintiffs’ witnesses without filing the written statement. Then in the afternoon session, the case was called and prayer of defendants for cross examination was rejected as no grounds were made out; the plaintiffs side evidence was closed. It is further stated that since the defendants have not filed the written statement, there is no scope for defendants’ evidence and the case was posted for arguments or for settlement. Then after hearing the arguments of plaintiffs side, the impugned judgment and decree came to be passed.

10. From the above, the point that arises for our consideration is, “Whether the defendants who have not filed the written statement, have a right to cross-examine the plaintiff and their witness?”

11. Order VIII of Civil Procedure Code deals with the provisions regarding written statement, set off and counter claim. Order VIII Rule 5 of CPC empowers the Court to pronounce the judgment based on the facts stated in the pl