RAJEEV KUMAR AGARWAL Vs. V K METAL WORKS

JUDGEMENT

(1.) TARUN Agarwala, J. Original suit No. 55 of 2000 was instituted for the cancellation of a registered deed of assignment conveying lease hold rights by the defendant- respondent 3rd set in favour of the defendant respondent 2nd set on the ground that the said assignment was obtained by fraud. A further prayer was also made that a fresh deed of assignment should be executed by the said defendants. It transpires, that on 21-11- 2000, an order was passed by the Court, to proceed ex parte against the defendant. Subsequently, an application for the recall of the said order was filed by the defendant which was allowed. Thereafter, on account of the non-appearance of the defendant, an order to proceed ex parte was passed by the Court on 22-1-2004. The examination-in-chief of the witness of the plaintiffs, filed on an affidavit, was taken on the record of the case. The trial Court by an order dated 22-1-2004 fixed 25-2- 2004 for an ex parte hearing. On 25-2-2004, the defendant appeared and filed an application 46-C, praying that he may be permitted to cross-examine the witness of the plaintiff. This application was rejected by the trial Court, by an order dated 6- 5-2004. The defendant filed a revision which was dismissed by an order dated 11-2- 2005. Consequently, the present writ petition.

(2.) BOTH the Courts below rejected the application of the defendant-petitioner by applying the principles laid down by the Supreme Court in the case of Sangram Singh v. Election Tribunal Kotah & Anr. , AIR 1955 SC 425. The Court below held that an order for hearing was passed by the trial Court and unless the said order was recalled, the defendant could not be permitted to cross-examine the witness of the plaintiff.

(3.) IN view of the aforesaid, the Court passed an order dated 22-1-2004 keeping the affidavit of the witness of the plaintiff on the record and fixed 25-2-2004 for an ex parte hearing. On 25-2-2004, the defendant appeared and filed an application for the cross-examination of the witness of the plaintiffs. The question is, whether the defendant could be permitted to appear on the adjourned date, i. e. 25-2- 2004? The answer to this question is, that in view of Sangram Singh's case (supra), the defendant can appear on the adjourned date and proceed from there onwards but, he had no right to set back the hands of the clock, in view of the provisions of Order IX, Rule 7. The second question that arises for consideration is, whether by praying for the cross-examination of the witness, the defendant was setting back the hands of the clock in view of the fact that the Court had fixed the date for an ex parte hearing ?