A defendant cannot lead evidence on a plea which was not there before the Court.

JUDGMENT :

P.C. Misra, J. - The Defendants Nos. 1 and 3 in Original Suit No. 229-I of 1980 of the Court of the Munsif, Bhadrak are the Petitioners in this revision. They have challenged the order of the learned Munsif dated 10:

2-1984 allowing the petition filed by the Defendant No. 4 for sending the signature of Defendant No. 3 appearing in Ext. C-1 to be compared with his specimen signature to be obtained in Court by the expert.

2. Defendant No. 4 is the father of the Plaintiffs and Defendant No. 2. The Plaintiffs filed the aforesaid suit for declaration of tile and other consequential reliefs in respect of the suit land on the basis of purchase by them under a registered sale deed dated 20-3-1961 from Ananda Nath, who was the father of Defendant No. 4. The case of the contesting Defendant No. 1 is that the sale deed dated? 20-3-1961 is a collusive and inoperative document under which no title could pass to the Plaintiffs. He alleged that after the death of Angada Nath, Krishna Chandra, Defendant No. 4 became the Karta of the family and in such capacity sold the suit land to Defendant No. 3 on 15-4-1969 and 24-5-1969 from whom Defendant No. 1 had purchased the suit land.

3. Defendant No. 4 was set ex parte as inspire of summons duly served on him he did not appear in the Court nor filed? any written statement. On 25-1-1984 the hearing of the suit commenced. The Defendant No. 4 filed an application on 30-1-1984 praying to set aside the ex parte order passed against him- and for permitting him to take part in the hearing of the suit. His petition was allowed on the same day. By that time two of the witnesses had already been examined on behalf of the Plaintiffs. Trial was resumed and on that date two more witnesses of the Plaintiffs were examined and Defendant No. 4 got himself examined as d. w. 1. His examination was, however, not concluded on that date and it was continued and concluded on the following date. During the course of examination he exhibited some documents including one marked as Ext. C-l. Ext. C.l is dated 20.4.1971 and it purports to be a receipt executed by Mahendra Sahu, (Defendant No. 3 in this suit) to the effect that on receipt of Rs. 3200/- he relinquished all his interest under the sale deeds dated 15-4-1969 and 24-5-1969 in favour of the Defendant No. 4. The said document was exhibited in spite of the objections raised against its admissibility, The genuineness of that document was, however, disputed by the contesting Defendant during the course of examination of his witnesses. On 2-2-1984 the case was closed so far as the contesting Defendants were concerned, whereafter an application was filed on behalf of the Defendant No. 4 for sending the disputed signature of Defendant No. 3 appearing on Ext.. C-l for comparison by an expert for which purpose it was prayed that a specimen signature be taken from Defendant No. 3.

By the impugned order the learned Munsif allowed the said prayer against which this revision has been filed.

4. Before going to examine the contentions raised by the learned Counsel, appearing for the parties, it is necessary to elucidate the position of law relating to passing of an ex parte order and the effect of the same being set aside on a subsequent stage. After the summons are duly served if the Defendant does not appear when the suit is called on for hearing, the Court is entitled to make an order that the suit be heard ex parte. The provision under Order 9, Rule 7 of the CPC is that where the Court has adjourned the ex party hearing of the suit, and the Defendant, against whom an ex parte order has been passed, at or before such hearing appears and assigns good cause for his previous non-appearance, the Court may set aside the ex parte order on such terms as to costs or otherwise, permitting him to be heard in answer to the suit as if he had appeared on the date fixed- for his appearance. It has been clearly indicated by several decisions of Supreme Court as well as by this Court that