1980 Supreme(MP) 533

IN THE HIGH COURT OF MADHYA PRADESH
B.C. VARMA, J.
Kedarnath - Applicant
Vs.
Thulabai - Respondents
C. Revn. No. 439 of 1979 (J)
Decided On : 03-01-1980

Headnote:(1) Civil Procedure Code, 1908 – O. 9, R. 7 – no application to be entertained when the case is closed for final arguments.

       (2) Civil Procedure Code, 1908 – O. 9, R. 7 – without getting the ex – parte order set aside the defendant can cross – examine plaintiff's witnesses and adduce his evidence in rebuttal – but cannot set up any defence – right cannot be exercised when the case is closed for arguments.

        Short Note

       1. Non – applicants 1 and 2 filed a suit for declaration that the decree obtained by the applicant in C.S. No. 3 – B of 1970 on 11 – 1 – 1979 was not enforceable, as it was obtained by fraud. The non – applicants 3, 4 and 5 remained ex – parte from 4 – 5 – 1976. After the close of evidence they filed an application on 13 – 2 – 1979 to set aside ex – parte order. On 28 – 2 – 1979 another application was filed for permission to cross – examine the applicant's witnesses and to adduce evidence in rebuttal. The trial Court allowed the second application. The order is challenged in revision.

       Held : When the case was closed for arguments, it cannot be said that it was fixed for hearing of parties and no such application could be entertained for setting aside the ex – parte order.

       2. A defendant who has not filed his written statement and has been proceeded ex – parte under Order 9 of the Code of Civil Procedure can always participate in the further proceedings and cross – examine the plaintiff on the case of the plaintiff himself and also adduce evidence to diminish the case of the plaintiff in rebuttal but cannot adduce evidence for setting up any defence. However, when the proceedings have come to an end i.e. when the stage of evidence is over and the case is posted for judgment, a defendant has no such right to trace back the proceedings and cross – examine non – applicant's witnesses Revision allowed. Lajja v. Dwarika Singh (1979 M.P.W. Notes 49) distinguished.