JUDGMENT - DABHOLKAR N.V., J.:---Heard Advocate Shri A.M. Dabir h/f Advocate Shri L.R. Pathak for revision petitioner. Sole respondent, although served with the notice and rule notice, is absent.

2. The revision petition challenges order passed by 3rd Joint Civil Judge (J.D.), Aurangabad, on 18-7-1995 in Regular Civil Suit No. 904/1994 on the file of Joint Civil Judge, Junior Division, Aurangabad. One Sonabai had filed R.C.S. No. 436/1991 seeking injunction against present petitioner performing another marriage. However, that suit was dismissed, although said Sonabai claimed to be wife of present petitioner. Thereafter, present respondent, who is younger sister of Sonabai, in the year 1992 filed an application under section 125 of Cri.P.C., 1973, for maintenance against present petitioner. It is the contention of petitioner that even respondent is not his wife, he had no alternative, but to file a suit for declaration that respondent is not his wife and, therefore, R.C.S. No. 904/1994 was filed.

The respondent/original defendant, although appeared in the suit through her Advocate, she did not file any written statement. Court ordered the plaintiff to lead his evidence. After production of documents on 18-7-1995, the petitioner entered the witness box and as soon as his examination in chief was completed, learned Advocate for respondent/defendant was on his legs to cross-examine the plaintiff. The inclination of the Judge to allow the lawyer of the defendant to cross-examine the plaintiff was objected by plaintiff's lawyer by filing an application Exhibit 26, which application was rejected and hence the present revision petition.

3. The only question is whether a party, who has not filed any written statement crystallizing its defences as also specific contentions, can be allowed to cross-examine the plaintiff.

As back as in 1938, in the matter of (Vinayak v. Chintaman)1, A.I.R. 1938 Bombay 470, it was observed as follows:

"A party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint. Where no written statement is filed, the Judge should, therefore, direct that the case be fixed for hearing in default of written statement and an order, "case is fixed for hearing ex-parte," is not justified."

Thus, it is evident that merely because written statement is not filed, a suit cannot be treated as proceeding ex parte against defendant nor right of defendant to participate in the process of hearing from the stage he appears is taken away by failure to file written statement of defence.

4. In (Modula India v. Kamakshya Singh Deo)2, A.I.R. 1989 Supreme Court 162, the respondent in that appeal had filed a suit on the original side of Calcutta High Court praying for decree directing the defendant/appellant to deliver vacant and peaceful possession of certain premises in Calcutta and also for mesne profits. The appellant company filed its written statement denying the averments in the plaint and the claims made therein. During pendency of the suit, several interlocutory applications were presented and orders were passed thereon directing the appellant to deposit certain sums in the Court. Ultimately, an application of the tenant praying to permit it to deposit the arrears of rents in monthly instalments alongwith current rent was rejected on the ground that it was out of time. Subsequent to disposal of this application, the defence of the tenant was struck off under the provisions of section 17(3) of the Act (W.B. Premises Tenancy Act). Correctness of the order striking out the defence of the tenant was unsuccessfully challenged and had become final and was no longer at issue when the parties approached the Hon'ble the Apex Court.

It was contended on behalf of the tenant that, at worst, the order striking off of defence under section 17(3) would preclude the tenant only from adducing the evidence

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