In a case where the defense has been struck down, the defendant is entitled to cross-examine the plaintiff's witnesses and address arguments on the basis of the plaintiff's case.

Veena Birbal, J. (Oral)-Allowed, subject to just exceptions.

CM(M) No. 586/2008

1. By way of present petition, petitioner has challenged impugned order dated 14.3.2008 wherein prayer of the petitioner for expunging the cross-examination of PW-1 from the record has been rejected.

2. Learned Counsel for petitioner has submitted that in the present case respondent/ defendant did not file written statement despite repeated opportunities given and as such the right of the respondent to file written statement was closed by the learned trial Court vide order dated 26.9.2005. The same was challenged by the respondent/ defendant before this Court vide CM. (M) No. 2441/2005. The order of learned trial Court was upheld by this Court. Respondent/ defendant challenged the same before Honble Supreme Court by filing a SLP. Even the same was rejected. Thereafter, petitioner filed examination-in-chief by way of affidavit before learned trial Court and was partly cross-examined by defendant/respondent on 22.11.2007. On said date petitioner/plaintiff moved an application for expunging the cross-examination of plaintiff on record stating therein that as the right of defendant to file written statement has already been closed and his defence has been struck down, he should not have been allowed cross-examination of the petitioner/plaintiff (PW-1) specially when the said order was upheld by the High Court as well as by the Supreme Court. The said application was rejected by the learned trial Court vide impugned order dated 14.3.2008 which is challenged in the present proceedings by filing petition under Article 227 of Constitution of India.

3. Learned Counsel for petitioner has contended that the right to file written statement has been closed by the learned trial Court vide order dated 26.9.2005 and the same order has been upheld by the High Court and the Supreme Court.

4. I have heard learned Counsel for petitioner and gone through the file of present case.

5. The scope of right to cross-examine in a case where defence has been struck off has been dealt by the Apex Court in Modula India v. Kamakshya Singh Deo, reported in 1988 (4) SCC 619, wherein it is held that in a case where defence has been struck down defendant is entitled to cross-examine plaintiffs witnesses. He is also entitled to address arguments on the basis of plaintiffs case. It is further held that the defendant would not be entitled to lead any evidence of his own nor his cross-examination can be permitted to travel beyond the very limited objective of pointing out the falsity or the weakness of the plaintiffs case. It is further held that in no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself virtually into presentation of the defendants case either strictly or in the form of suggestion put to the plaintiffs witnesses.

6. In the present case, learned trial Court vide impugned order dated 14.3.2008 has held that a person whose defence has been struck down can continue to appear in the proceedings and cross-examine the witness.

" There is no bar in law upon him to cross-examine the witnesses. Learned trial Court has also noted that in a case where defence has been struck off, the defendant cannot put his defence to the witnesses. Learned trial Court has rightly appreciated the position of law in such cases and has safeguarded the interest of petitioner /plaintiff which is stated in para 2 of the impugned order. The same is as under:

"Whether the question put in cross-examination amounts to a suggestion based on examination-in-chief or suggestion of the defence of the defendant can be taken up at the stage of final arguments. The Court cannot at this stage to into the hair splitting exercise of dissecting every question put in cross-examination and relate it to the pleadings in order to determine whether the same amounts to the putting of the defence of the defendant to the witness or not. The plaintiff suffers no pre