A defendant who fails to present a written statement or has been debarred from filing one cannot examine himself as a witness.

A.H. Saikia, J.

1. Heard Mr. H.K. Deka, learned senior counsel assisted by Ms. F. Ahmed, learned Counsel for the petitioner and Mr. B. Islam, learned Counsel for the respondent.

2. On close perusal of the impugned order dated 14.6.2006 passed by the learned Civil Judge (Jr. Division) No. 2, Guwahati in Title Suit No. 284/03 and also upon hearing learned Counsel for the parties, this court proposes to dispose of this revision petition at the admission stage.

3. Having meticulously gone through the impugned order, it appears that the learned Judge expunged the evidence on affidavit filed by D.W. 1 who was the defendant No. 1 in the related Title Suit No. 284/03 on the ground that since the defendant No. 1 did not file any written statement and admittedly the case was proceeded against the defendant No. 1 ex parte, he could not be permitted to adduce any evidence.

4. It is seen that the defendant No. 1 at no point of time contested the suit which was filed by his mother, the plaintiff, for occupation of house alleged to have been constructed by the mother-plaintiff and for a decree of recovery of khas possession of the suit premises by evicting the defendants, i.e., defendant Nos. 1 and 2 as well as for permanent injunction against the defendants.

5. In arriving at the above finding of expunging the evidence on affidavit so led by the defendant No. 1, the learned Civil Judge observed that on 22.1.2004 the defendant No. 2, the petitioner herein, filed written statement as well as additional written statement. Thereafter, the plaintiff side filed evidence on affidavit on her behalf on 11.5.2005 and 27.5.2005. After that the PWs were cross-examined by the defendants side and thereafter the case was fixed for DWs.

6. Vide order dated 5.12.2005, the defendant No. 2 was debarred from filing evidence of DWs as she took several adjournments. Against the said order the defendant move this court through Civil Revision and this court vide order dated 27.1.2006 while setting aside the order dated 5.12.2005, allowed the defendant to adduce evidence on affidavit.

7. On 8.2.2006 the defendant side adduced the evidence of Birochan Das as D.W.I who was the defendant No. 1 in Title Suit and one Atul Chandra Deka as D.W.2.

8. However, the court dismissed the evidence on affidavit filed on behalf of the defendant No. 1 by the impugned order relying on two judicial authorities reported in (i) (1991) 1 GLR 157 (Shri Pada Acharjee v. Sri Hari Pada Acharjee and Ors.) and (ii) AIR 1989 SC 162 (Modula India v. Kamakshya Singh Deo. The ratio of those referred case laws is where a party fails to file a written statement within time permitted by the court, the court may proceed with the further hearing of the suit and the defaulting party may participate in the hearing but subsequently cannot be allowed to lead any evidence in respect of the defence on the ground of failure to file written statement.

9. In the case in hand, it is admitted position that the defendant No. 1 preferred not to contest the suit and accordingly the suit proceeded against him ex parte. Be it noted that the court can, in such premises, take necessary steps for pronouncement of judgment against him in terms of Order 8, Rule 10 CPC.

10. At the time of hearing, the defendant No. 2, daughter-in-law of the plaintiff and wife of the defendant No. 1, who did not appear before the court, adduced the evidence of the said defendant No. 1 as D.W.I and another witness Sri Atul Chandra Deka.

11. On close perusal of the materials available on record including the evidence on affidavit filed by Sri Birochan Das, the defendant No. 1, it manifestly reveals that the said evidence on affidavit was filed by him, though claimed to be the witness of defendant No. 2, in the capacity of the defendant No. 1 himself. There was no whisper even in the said evidence on affidavit that he had filed the said evidence being a witness of the defendant No. 2.

12. The law is settled that the defendant who fails to present