JUDGMENT - DAGA V.C., J.: - A reference is made by the learned Single Judge (A.S. Oka, J.) to resolve the conflict of opinions as to the nature and scope of the rights available to the defendant whose "defence has been struck out" is taken up for final hearing at the admission stage by consent of parties.

WHY REFERENCE :

2. In the case of (Ganpat Shankar Waghmare v. Anjalibai Rao Waghmare)1, reported in 2001(3) Bom.C.R. 31 , learned Single Judge (Khanwilkar, J.) has taken a view that once defence is struck out under Order 39, Rule 11 of the Code of Civil Procedure (C.P.C. for short) as amended by the Bombay High Court, the defendant in consequence thereof losses his right to cross-examine the plaintiff and his witnesses.

Whereas in the case of (Suryabhan Ranuba Wagh v. Shobha Bhimrao Pawar)2, reported in 2002(Supp. 2) Bom.C.R. (A.B.)272 learned Single Judge (Dabholkar, J.), while considering the case of absence of written statement has ruled that the defendant cannot be denied right to participate in the process of hearing or cross-examine the plaintiff. The defendant although can be allowed to cross-examine witnesses, the scope of cross-examination cannot be permitted to travel beyond limited object of pointing out falsity or weakness of the plaintiff's case and in any case, it cannot be converted into presentation of defence theory.

3. The learned Single Judge (Oka, J.) having confronted with the above opposite view was required to pass an order directing placement of papers before the learned Chief Justice as required by Rule 7 of Chapter 1 of the Appellate Side Rules for resolving the conflict by a larger Bench.

4. In view of the contradictory views expressed by the learned Judges, the learned Chief Justice was pleased to refer to this Court the following question for decision:-

"Whether a defendant whose defence has been struck out under Rule 11(1) of Order XXXIX of Code of Civil Procedure has a right to cross-examine the plaintiff and the witnesses examined by him?"

FACTUAL RESUME

5. The short factual resume required for answering the reference is as under:

6. The petitioner is a defendant in Civil Suit No. 226 of 1999 filed by the respondent (plaintiff) in the Court of Civil Judge, Senior Division, Akola. It is not in dispute that the defence of the petitioner was struck out by the learned trial judge vide its order dated 10-12-2002 and also by another order dated 16-6-2003, both orders were passed in exercise of powers under Rule 11 of Order 39 of the Code of Civil Procedure, 1908.

7. The petitioner (defendant) made an application at Exhibit-45 contending that though his defence has been struck out, he has a limited right to cross-examine the respondent and her witnesses. A prayer accordingly, was made for recalling respondent and her witnesses for cross-examination. The trial Court by an order dated 16-8-2003, which was the subject-matter of challenge before the learned Single Judge, rejected the application at Exhibit-45 seeking to recall witnesses of the plaintiff for cross-examination. One of the grounds of rejection as given by the learned trial Judge is that the defence of the petitioner has already been struck out.

8. This order of the learned trial Court was a subject-matter of challenge before the learned Single Judge in a writ petition filed under Article 227 of the Constitution of India.

9. The learned Counsel appearing for the petitioner while challenging the order in a writ petition filed before the learned Single Judge has relied upon the judgment in the case of Suryabhan Ranuba Wagh v. Shobha Bhimrao Pawar (cited supra) wherein the learned Single Judge has held that in absence of written statement no conclusion can be drawn that the proceedings are ex parte. The learned Single Judge in that case held that the defendant could be allowed to cross-examine the witnesses of the plaintiff. However, the scope of cross-examination being limited, cross-examiner cannot be permitted to travel beyond the limited object

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