JOGINDER SINGH Vs. TEERATH MAL

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for ejectment and arrears of rent. The substantial question of law on which notice was issued to the respondents at the hearing under Order 41, Rule 11 of the Code of Civil Procedure is the one contained in ground No. 7 of the memorandum of appeal which is to the effect that "the court below had no jurisdiction to proceed ex parte even though defence had been struck off."

(2.) The appellant's defence was struck off by the trial court under Order 15, Rule 5 of the Code of Civil Procedure, by order dated 5th November, 1973. The operative portion of the order reads as follows: ORDER 41-C is hereby allowed. The defence of the defendant is hereby struck off. The suit shall proceed ex parte against the defendant. Fix 29-11-1973 for ex parte hearing.

(3.) On these facts Mr. V. K. Barman, learned counsel for the appellant contended before me that the order directing the suit to proceed ex parte amounted to a refusal to permit the defendant to participate in the further hearing of the suit after striking off his defence; and further that his evidence for recording which a commission had already been ordered to be issued before the striking off the defence could not have been shut out, and the order recalling the commission was illegal.