JUDGMENT :

Shampa Sarkar, J. - This revisional application has been filed challenging an order dated May 4, 2023, passed by the learned Civil Judge (Junior Division), 4th Court, Alipore, South 24 Parganas in Ejectment Suit No.127 of 2017.

2. By the order impugned, the learned court below rejected the application of the defendant No.3 praying for liberty to cross-examine the plaintiffs witness, PW1. The learned court below rejected the application, inter alia, holding that the application filed by the defendants was redundant in view of the fact that his defence has been struck off and the order striking out the defence, had been upheld by the Honble High Court.

3. Mr. Roy, learned advocate appearing on behalf of the petitioner, submits that the order suffers from perversity. Reliance has been placed on the decision of the Honble Supreme Court in the case of Modula India v. Kamakshya Singh Deo reported in AIR 1989 SC 162 . It is submitted that even if the defence had been struck off by the court, the right to cross-examine the plaintiffs witness cannot be taken away.

4. Mr. Chatterjee, learned advocate appearing on behalf of the plaintiff/opposite party no.1, submits that the issue involved in this revisional application is not simpliciter whether the defendants would be allowed to cross-examine the plaintiffs witness or not.

5. According to Mr. Chatterjee, this suit had been fixed for ex parte arguments on February 6, 2023 on an application filed by the plaintiff. Upon contested hearing, the application was allowed. Thereafter, the defendant could not have asked for liberty to cross-examine the plaintiffs witness when the order fixing the suit for ex parte hearing had not been recalled.

6. According to Mr. Chatterjee, no such prayer was ever made. Hence, learned court below rightly rejected the application by which the substituted defendant no.3 had sought permission from the court to cross-examine the plaintiffs witness.

7. Relying on a decision of the Honble Apex Court in the matter of Arjun Singh v. Mohaindra kumar and others reported in AIR 1964 SC 993 , Mr. Chatterjee submits that once the suit was decided to be heard ex parte, the learned court below had no other option, but to complete the argument of the plaintiff and pass judgment.

8. Mr. Chatterjee, further submits that although the petitioner/substituted defendant no.3 filed an application praying for liberty to cross-examine the plaintiffs witness, but in the said application, no reasons had been assigned as to why such prayer was not made earlier. The defendant no.3 chose to waive his right by not coming at an earlier stage.

9. Heard the parties. The decision of Arjun Singh (supra) cited by Mr. Chatterjee, is not applicable in the facts of this case, inasmuch as, the Honble Supreme Court had held that once the hearing had been completed and judgment had been reserved, the party opposing the suit could not come at such a later stage and pray for recalling of the order of ex parte hearing of the suit. In this case, the argument had not commenced. Hence, the petitioner is allowed to cross-examine the PW.

10. This court is of the view that the substituted defendant no.3 came into the proceedings later. The application filed by the plaintiff for ex parte hearing of the suit was objected to by the petitioner. Subsequently, when the suit was fixed for ex parte argument of the plaintiff, the petitioner once again approached the court by filing the application, so that he may be allowed to cross-examine the PW.

11. Right to cross-examine of the plaintiff, when defence has been struck off, has been upheld by the Honble Apex Court. The defendant does not h