A defendant, even without filing a written statement, can take part in the hearing of a suit, but cannot cross-examine witnesses on questions of fact not pleaded or adduce evidence on such questions without a written statement.

N.L.Untwalia, J.

1. Siai Sinha, the petitioner in this civil revision application, was added as a defendant in the suit by the court below by order No. 50 dated 20-3-1965 (in the original order sheet 64 seems to be a mistake for 65). Summons was served on this newly added defendant, as would appear from order No. 58 dt. 10-7-1965. The petitioner did not appear and did not file any written statement for about 3 years. He appeared for the first time on 20-8-1968 and filed a petition stating therein that by rumour he had heard that 20th of August. 1968 was the date fixed in the case. He prayed for time to file written statement. The court below by order of the date has refused to permit him to file any written statement and has also not permitted him to be present at, and take part in, the hearing of the suit. He has come up in revision.

2. In this Court a plea is taken that summons was not actually served on the petitioner; it was fraudulently served bala bala. In the petition filed in the court below this plea was not taken either expressly or, as I interpret the petition, even by necessary implication. In my opinion this plea is not correct. Under Order 8, Rule 1 of the Code of Civil Procedure, the petitioner had to file his written statement at or before the first hearing or within such time as the Court may permit. He did not do so. After a lapse of 3 years the court below was justified in not permitting him to file any written statement. That portion of the order of the Court below by which the permission to file written statement has not been accorded is correct and is not being interfered with.

3. The suit, however, was not taken up for hearing ex parte against the petitioner nor was it ordered to be so taken up. The position of law in such a case is that a defendant, even without filing a written statement, can take part in the hearing of the suit. He may cross-examine the plaintiffs witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on Questions of fact which have not been pleaded by him by filing any written statement. It should be further made clear that if a defdt. files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff [see for reference a Bench decision of the Calcutta High Court in J.B. Ross and Co. V/s. C.R. Scriven, ILR 43 Cal 1001 = (AIR 1917 Cal 269 (2))]. Keeping this position of law clearly in mind, the court below is directed to permit the petitioner to take part in the proceedings in the suit at the time of the hearing.

4. In the result, the application is allowed to the extent and in the manner indicated above. Since no major opposite party has appeared, there would be no order as to cost.