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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CS (OS) No.280/2011

DEV CHANDER SOOD & ORS.

.... Plaintiffs

Through

Mr.Naresh Thanai, Adv.

versus

H.L. SUD & ORS.

..... Defendants

Through

Mr.Shariq, Adv. for Mr. N. Raja

Singh, Advocate

CORAM:

HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The plaintiffs have filed a suit for partition against the five

defendants. The parties are related to each other. None of the

defendants filed the written statement. The defendants’ right to file

the written statement was closed by order dated 30^th January, 2013.

2. An application for recalling of the said order was filed which

was withdrawn. Subsequently, the plaintiff has filed affidavit by way of

evidence and examined himself.

3. On 28^th February, 2014, the court has passed the following

order:

“1.

The matter has been directed to be listed before the

court by the learned Joint Registrar.

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2.

A perusal of the order dated 25.2.2014 and the

statement of PW-1, Dev Chand Sood, recorded on the said

date shows that though Dev Chand Sood has been

examined as PW-1; however, the witness was not made

available for the purpose of cross-examination to the

defendants. Even if the written statement has not been filed

by the defendants, still they have a right to cross-examine

the witness examined on behalf of the plaintiffs. I, therefore,

feel that PW-1 should be recalled for the purpose of cross-

examination by the defendants.

3.

It is further stated by the learned counsel for the

defendants has stated that de hors the non-filing of the

written statement, the defendants can still be permitted to

adduce evidence in order to challenge the case which has

been set up by the plaintiffs that the suit for partition is not

maintainable only respect of the two properties but also with

regard to the other properties, details of which are stated to

have been given by them in the plaint itself.

4.

The learned counsel for the plaintiffs seeks time to

address the court with regard to production of evidence by

the defendants.

5.

List before the Joint Registrar for the purpose of cross-

examination on 21^st April, 2014.

6.

List before court on 21^stJuly, 2014.”

4. In view of the order passed as referred above, the submission

of the defendants is that the defendants be granted liberty to cross-

examine the plaintiff and lead evidence in order to rebut the case of

the plaintiff.

5. Mr. Naresh Thanai on the other hand has referred the provision

of Order 8 Rule 5 CPC which provides that defendant must

specifically deny averments and facts set out in the plaint. In case of

no specific denial or evasive denial, it amounts to admission. Sub rule

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further provides that in case no written statement has been filed by

defendant, the court may pronounce judgment.

6. It is argued by him that no evidence which is beyond the

pleadings is admissible or can be looked into. Defendants have not

filed the written statement and there is no pleading on their behalf.

Thus, defendants cannot be permitted to lead any evidence in the

cross examination of the plaintiffs. Evidence can be allowed on behalf

of the defendants limited to examination-in-chief and the witnesses

cannot be permitted to be cross-examined beyond the pleading of the

plaintiffs. The defendants have the right to cross-examine only to

demolish the version of the plaintiff who cannot set up any other

evidence either in cross-examination or by way of leading evidence.

7. Mr. Thanai has referred the following judgments in support of

his arguments:

a. In Siai Sinha vs. Shivadhari Sinha and Ors. AIR 1972 Pat 81,

it was observed as under:

The suit, however, was not taken up for hearing ex

parte against the petitioner nor was it ordered to be so

taken up. The position of law in such a case is that a

defendant, even without filing