Mohinder Kaur and others vs Gurdev Singh

K.N. Mittal, J.—Legal representatives of Gopal Singh original defendant since deceased have invoked the jurisdiction of this Court by filing

instant revision petition under Article 227 of the Constitution of India to assail order dated 13.10.2010 passed by learned Civil Judge (Junior

Division), Ludhiana thereby dismissing application of the petitioners for permitting them to lead evidence. Respondent - plaintiff Gurdev Singh filed

suit against Gopal Singh (predecessor of the petitioners) for specific performance of agreement to sell. The defendant failed to file written statement

in spite of opportunities and accordingly his defence was struck off. The plaintiff led his evidence. Thereafter petitioners moved application that the

defendant was aged about 100 years and generally remained ill and was illiterate and did not execute the alleged agreement or alleged writing nor

received any amount nor signed or thumb marked the alleged agreement or writing in question. Accordingly, the petitioners sought permission to

lead evidence.

The application was opposed by plaintiff alleging that defence of the defendant had been struck off and the said order has attained finality and

therefore, the petitioners are not entitled to lead evidence. Various other pleas were also raised. Learned trial court vide impugned order dated

13.10.2010 dismissed the application of the petitioners, who have, therefore, filed the instant revision petition.

I have heard learned counsel for the parties and perused the case file.

Learned counsel for the petitioners relying on judgment of Hon''ble Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal

Baya, ontended that it is the discretion of the court in the facts and circumstances of each case to permit or not to permit the defendant to lead

evidence. Reliance has also been placed on judgment of this Court in Joginder Singh v. Baldev Singh and another, 1985 Revenue Law Reporter

287 and judgment of Madhya Pradesh High Court in Suraj Pal and Others Vs. Mandir Mahadeoji and Ram Janki and Another, laying down that

the defendant, whose defence has been struck off due to non filing of written statement, still has right to cross-examine the witnesses of the plaintiff

and also to lead evidence to disprove the plaintiffs case. It was accordingly contended that petitioners have right to lead evidence to the limited

extent of disproving the plaintiff''s case.

On the other hand, learned counsel for the respondent - plaintiff relying on judgment of Hon''ble Supreme Court in Modula India Vs. Kamakhya

Singh Deo, contended that defendant whose defence has been struck off has right to cross-examine the plaintiff''s witnesses and to address

arguments on the basis of plaintiff''s case but is not entitled to lead any evidence of his own. Counsel for the respondent also relied on judgment of

Hon''ble Supreme Court in Babbar Sewing Machine Company Vs. Trilok Nath Mahajan,

I have carefully considered the rival contentions. So far as judgment in the case of Sangram Singh (supra) is concerned, the same is not

applicable to the facts of the instant case. In that case, in election petition, respondent did not appear before the Election Tribunal on the date fixed.

On subsequent dates, he put in appearance through counsel and wanted to cross-examine the witnesses of the election petitioner but was

disallowed by the Election Tribunal. In these circumstances, Hon''ble Supreme Court held that the respondent elected candidate should have been

allowed to cross-examine the witnesses of the election petitioner. This judgment does not relate to the factual position existing in the case in hand.

Similarly, judgment in the case of M/s Babbar Sewing Machine Company (supra) cited by counsel for the respondent also has no applicability to

the facts of the case in hand because the said judgment pertains to interpretation of Order 11 Rule 21 of CPC (in short, CPC). Moreover, in that

judgment, it was not laid down that defendant would not be entitled to lead his own evidence after order under Order 11 Rule 21 CPC is passed

by the court. This judgment has also no applicability to the question of law to be determined in the instant case.

However, judgment in the case of Madula India (supra) cited by counsel for the plaintiff-respondent is fully and directly applicable to the legal

issue to be adjudicated upon in the instant case. In the said judgment, it has been categorically laid down that where defendant fails to file written

statement and his defence is struck off, he has right to cross-examine the plaintiff''s witnesses and to address arguments on the basis of plaintiff''s

case, but he has no right to lead evidence of his own. This categorical proposition of law laid down by Hon''ble Supreme Court, which is fully

applicable to the facts in hand, leaves no room for doubt that the petitioners have no right to lead evidence because defence of the defendant

(predecessor of the petitioners) was struck off due to non-filing of the written statement. In view of this judgment of Hon''ble Supreme Court,

judgment of this Court in the case of Joginder Singh (supra) and judgment of M.P. High Court in the case of Suraj Pal (supra) cannot prevail. For

the reasons aforesaid, I find no illegality or jurisdictional error in impugned order of the trial court. On the other hand, the said order is legal and

valid in view of proposition of law laid down by Hon''ble Supreme Court in the case of Modula India (supra). The revision petition is thus, found to

be meritless and is accordingly dismissed.