M.Y. Eqbal, J.

1. This application under Article 227 of the Constitution of India at the instance of the defendant/petitioner is directed against the order dated 5.4.2005 passed by Sub-Judge, I, Rajmahal in Title Suit No. 41/2001, whereby he has dismissed the petition filed by the petitioner seeking permission to adduce evidence by examining witnesses in the suit.

2. The facts of the case lie in a narrow compass:

The plaintiff/respondents filed Title Suit No. 41/01 against the defendants for declaration that plaintiffs are the rightful owner being the heirs of late Hukka Tudu and for permanent injunction restraining the defendant/petitioner from claiming any right in the property. The defendant/petitioner appeared in the said suit but no written statement was filed. Petitioner was thereafter, debarred from filing written statement by order dated 7.7.2004. The hearing of the suit, thereafter, proceeded and the petitioner examined witnesses. On 8.2.2005 petitioner filed application praying to the court below to permit him to adduce evidence for just decision of the suit an also prayed for making some documents exhibited. The said application rejected by the court below in terms of the impugned order.

3. Learned Counsel appearing for the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that even by filing written statement, defendant has every right to lead evidence by examining witnesses and by proving documents. Learned Counsel relied upon the decision of the Patna High Court in the Case of "Siai Sinha v. Shivadhari Sinha and Ors." , in the case of "Bindeshari Kamkar and Ors. v. Radha Tiwari and Ors." and in the case of "Ganpat Chand v. Jeth Mal" .

4. In Siai Sinha Case (Supra), petitioner who was newly added defendant did not appear and did not file any written statement for about 3 years. Suddenly, he appeared and filed application for time for filing written statement. The trial court refused to permit him to file written statement. The defendant/petitioner was also not permitted to take part in the hearing of the suit. The defendant challenged the said order by filing revision before the Patna High Court. The question that fell for consideration was whether in absence of any written statement the defendant can be debarred from cross- examining the witnesses and to adduce evidence. His Lordship Justice N.L. Untwalia observed:

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 defendan, 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 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. 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.

5. In the case of "Bindeshari Kamkar Case (Supra) the defendant appeared pursuant to service of summons but inspite of several adjournments granted to the defendant for filing written statement, he did not file written statement. The court ultimately rejected the application for further time and ordered that defendant shall be precluded from filing any written statement but even in