Defendant's right to cross-examine plaintiff's witnesses in a suit proceeding ex parte is not taken away merely because ex parte proceedings were initiated against them.

JUDGMENT :

Manoj Kumar Gupta, J.

1. The instant petition is directed against the order dated 18.1.2018 passed by the trial court allowing application 50-C filed by the defendant-respondent seeking permission of the court to cross-examine plaintiffs witnesses. It is noteworthy that the suit is proceeding ex parte against the defendant-respondent and its right to file written statement stands forfeited. It has been held by the trial court that even then it would not be debarred from cross-examining the witnesses of the plaintiff-petitioner. Aggrieved by the said order, the petitioner filed a revision, which has also been dismissed by the impugned order dated 29.4.2019.

2. Learned counsel for the petitioner submitted that once the suit was proceeding ex parte against the defendant-respondent, the trial court erred in allowing the application for cross-examination of the plaintiffs witnesses.

3. In Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993, the Supreme Court has explained the scheme of Order IX, C.P.C. It has held that where the court passes an order to proceed ex parte against the defendant, it may take evidence of the plaintiff then and there and also pronounce the judgment. In other type of cases, the evidence of the plaintiff might not be concluded on the hearing day on which defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. Consequently, if the defendant appears on such adjourned date and satisfies the court by showing good cause for his nonappearance on the previous day or days, he might have the earlier proceedings recalled--"set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. In such a case, he is not precluded from taking part in the remaining proceedings of the suit or whatever might still remain. The only impediment is that he cannot claim to be relegated to the position he occupied at the commencement of the trial.

4. It would thus mean that where the evidence of the plaintiff had not concluded, the defendant against whom ex parte proceedings are being held, can always appear before the trial court and pray for cross-examining the plaintiffs witnesses. The said right of the defendant is not taken away merely for the reason that an order was passed on a previous date for holding ex parte proceedings against him.

5. Consequently, this court finds no illegality in the view taken by the courts below in allowing the application of the defendant-respondent to cross-examine the plaintiffs witnesses.

6. The petition lacks merit and is dismissed.