ORAL JUDGMENT

Date : 07-05-2024 Heard learned counsel for the petitioners as well as learned counsel for the respondents.

2. The present petition has been filed under Article

227 of the Constitution of India for quashing of the order dated 25.04.2017 passed by learned Sub Judge- XIth, Patna in Eviction Suit No. 11 of 2010, whereby and whereunder the petition dated 11.04.2017, filed by the original petitioner/defendant for recall of order dated 28.03.2017 with further prayer to allow the original petitioner/defendant to adduce evidence on the question of title, has been rejected by the learned trial court.

3. Learned counsel for the petitioner submits that Title Eviction Suit No. 11 of 2010 has been filed by the defendants/ respondents seeking decree of eviction against the defendant/petitioner from the suit premises. The petitioner appeared on summons and filed his written statement contesting the claim of the respondents. Plaintiffs started examining their witnesses but defendant was not allowed to cross-examine the witnesses of the plaintiffs on the ground that the defence of the defendant was struck off. However, the defendant moved to this Court and got an order in his favour vide order dated 19.02.2016 passed in C.W.J.C. No. 23099 of 2012 by which defendant was allowed to cross-examine the witnesses of the plaintiff. Thereafter, defendant filed a petition before the learned trial court with a prayer to convert the eviction suit to a regular suit as certain facts has come before the learned trial court in the pleading and statement made by the witnesses in cross- examination. As the prayer was not considered by the learned trial court, the defendant filed another writ application before this Court being C.W.J.C. No. 19938 of 2016 and the matter has been running at the stage of bringing orders of this Court in C.W.J.C. No. 19938 of 2016. However, the suit was mistakenly put up for hearing on 28.03.2017. On that date, the learned court passed order observing that the sufficient opportunity was given to the defendant but the defendant has not produced any order hence, the case was fixed for argument in view of the orders of this Court. Thereafter, the petitioner/defendant field a petition on 11.04.2017 for recall of the order dated 28.03.2017 which was rejected by order dated 25.04.2017. The learned trial court disposed of the petition with observation that in view of order dated 17.04.2012 defence has already been struck off and further held that there was no merit in the petition filed by the defendant. Learned counsel further submits that the defendant/ petitioner was under impression that the suit was at the stage of his evidence and he will be given opportunity to adduce since the order striking of his defence was reversed by this Court in C.W.J.C. No. 23099 of 2012 and the matter has been coming up for producing orders in C.W.J.C. No. 19938 of 2016 and under this impression, the defendant could not produce his witnesses. Learned counsel further submits that the impugned order is against the ratio of decision of this Court rendered in the case of Mahabir Ram Vs. Sheo Shnakar Prasad & Ors. reported in 1968 PLJR 75, para 17 and the defendant should have been allowed to cross-examine the witnesses of the plaintiffs on the point of title if the defendant disputes the title of the plaintiff or adducing his own evidence on this issue. Same view was adopted by the Division Bench of this Court in the case of Dinesh Nandan Sahay Vs. Ram Kripal Singh & Ors. reported in 1966(1) PLJR 234 and Neelkamal’s case reported in 2015(4) PLJR 491. Learned counsel further submits that as the defendant has been questioning the title of the plaintiffs, it was incumbent upon the trial court to allow the defendant to cross- examine the witnesses on the point of title and also allow to adduce his own evidence on the issue of title. Thus, learned counsel submits that the impugned order may be set aside.

4. The contention of the learned counsel for th