$~65 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 15^th May, 2025 + CM(M) 2226/2024 & CM APPL. 18697/2024 M/S TOP MOTOCOMPONENTS PVT LTD .....Petitioner Through: Mr. Sahil Sharma with Mr. Saranga Awana, Advocates.

versus AADITYA EMOTORS PVT LTD & ORS.

.....Respondent Through: Mr. Vinod Dahiya and Ms. Vandana Dahiya, Advocates CORAM:

HON'BLE MR. JUSTICE MANOJ JAIN J U D G M E N T (oral)

1. Petitioner herein had filed a commercial suit for seeking recovery which was directed against four defendants viz i) Aaditya Emotors India Pvt. Ltd., ii) Ms. Satender Dabas (Director), iii) Ms. Soniya (Director) and iv) Ms.

Param Singh Jeet (Director).

2. Admittedly, all the defendants were proceeded against ex parte.

3. As far as defendant No. 2 Ms. Satender Dabas and Defendant No. 3- Ms. Soniya are concerned, since they had not even filed their written statement within the permissible outer limit of 120 days, their right to file written statement was closed by learned Trial Court on 21.04.2023.

4. Thereafter, the learned Trial Court ordered service by publication qua defendant No. 1and when defendant No. 1 did not appear despite publication and keeping in mind the fact that there was no appearance from the side of defendant Nos.2 and 3, defendant Nos.2 and 3 were also proceeded against ex-parte.

Signature Not Verified CM(M) 2226/2024 1 Digitally Signed

5. Defendant Nos.2 and 3 moved an application seeking to set aside ex-parte order dated 14.09.2023. Learned Trial Court, though, dismissed the application, it permitted them to appear in the case, from that stage.

6. Fact remains that, even if, they were permitted to participate from that stage, these two defendants i.e. defendant Nos.2 and 3 cannot run away from the fact that they had not filed any written statement and their right to file written statement had already been closed.

7. Viewed thus, they had limited right of participation in the suit and besides conducting limited cross-examination of the plaintiff and addressing final arguments, they could not have been given any indulgence of entering into witness box.

8. When the case was taken up by the learned Trial Court on 29.01.2024, the plaintiff examined its last witness (PW-2) and, thereafter, it closed its evidence.

9. Learned Trial Court, after closing the evidence, adjourned the matter for recording of defendant’s evidence.

10. Feeling aggrieved by the abovesaid order, the plaintiff moved an application seeking review of the abovesaid order. It seems that when the case was, earlier, taken up for case management hearing purpose, the learned Trial Court had also fixed up a date for recording of defendant’s evidence and since the defendants were ex-parte and their right to file written statement had even been closed, review was filed.

11. However, learned Trial Court, taking note of the contentions made by defendant Nos. 2 and 3 who claimed that they had been cheated by the other two defendants, permitted them to enter into witness box to prove such element of fraud.

Signature Not Verified CM(M) 2226/2024 2 Digitally Signed

12. Such orders, permitting them to enter into witness box, are under challenge.

13. Learned counsel for petitioner/plaintiff submits that since written statements were never submitted by these defendants and since for all purposes, their defence is to be deemed as struck off, the learned Trial Court should not have given them any opportunity to lead any evidence in affirmative. He submits that the law is also well settled in this regard and any such party whose right to file written statement has been closed cannot be permitted to enter into witness box for proving its defence and in such a situation, any such defendant has a limited right of cross examining the plaintiff’s witnesses and to address arguments on the basis of the case set up by the plaintiff.

14. He thus contends that under no circumstance, defendants are entitled to lead any evidence of their own and their cross examination also has to be limited one