The National Small Industries Corporation Ltd. vs The Oriental Insurance Co. Ltd.

Sat Pal, J.

(1) This is an application filed on behalf of the defendants under Order 19 Rules 1 & 2 read with Section 151 CPC and in this application it has been prayed that the applicants should be permitted to cross examine the witnesses of die plaintiffs.

(2) On 12th December. 1991, the defendants despite service did not appear before the Court and accordingly, the defendants were proceeded against ex-parte. On the said date. the plaintiff was permitted to lead evidence by way of affidavit and was directed to file the ex-parte evidence by way of affidavits within eight weeks. Meanwhile, on 10th April, 1992. the plaintiff sought the permission of the Court to lead evidence by examining the plaintiff in Court instead of filing affidavit by way of ex-parte evidence. The permission was granted and the case was fixed for 24th November, 1992 for ex-parte evidence. Instead of examining the witnesses in the Court, learned counsel turn the plaintiff wants to rely on title affidavit filed on behalf of the plaintiff by way of evidence. From the order sheet, it is clear that after the permission was granted to plaintiff to lead oral evidence on 10th April. 1992, no further order was passed by this Court granting permission to the plaintiff to lead evidence by way of affidavit.

(3) Learned counsel for the defendants submits that the defendants have no objection in case the affidavit filed on behalf of the plaintiff is treated as examination-in- chief of the plaintiffs witness and the defendants are allowed to join the proceedings at this stage and allowed to cross-examine this witness. In view of the law laid down by the Supreme Court in title case of Arjun Singh Vs. Mohindra Kumar and Others, , the defendants who have been proceeded against ex-pane, have to be permitted to take part in the further proceedings of the suit, in case the suit is not finally disposed of on the date when the case was fixed for hearing. In the present case the suit has not yet been disposed of and accordingly I allow the defendants to join the proceedings of the present case at this stage. The affidavit filed on behalf of the plaintiff will be treated as examination-in-chief of the plaintiffs witness. List the case for cross examination of the plaintiffs with on 15th September, 1994. It is, however, made clear that the affidavit of Shri S. C. Dewan, filed Along with this application will not be taken on record. The parties are, however, left to hear their own costs.

(4) With this order is stands disposed of.