GANPAT SHANKAR WAGHMARE Vs. ANJALIBAI RAO WAGHMARE

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Civil Judge, J. D. Medha, District Solapur dated 16-1-1993 below Exh. 41 in D. F. No. 159 of 1981.

(2.) PETITIONER filed an application before the lower Court being Exh. 41 praying for permission to cross examine the plaintiff. The said application was opposed by the respondent plaintiff mainly on the ground that the Court has already struck out the defence of the petitioner by passing an order below Exh. 28 dated 24-10-1991 in exercise of powers under Rule 11 of Order 39 and therefore it is not open to the petitioner to insist for permitting him to cross examine the respondent plaintiff. The Court below accepted the said objection on behalf of the respondent and concluded that since the defence of the petitioner has been struck of by virtue of provisions under Rule 11 Order 39 of C. P. C. , it amounts to striking out defence of the defendant in all respects and matter should proceed ex parte against him and he has got no right to cross examine the plaintiffs witness.

(3.) THE learned Counsel for the petitioner contends that striking of the defence would only mean that the defendant is deprived of filing written statement or pleadings before the Court, but that by itself, would not take away the defendants right to cross examine the plaintiff or plaintiffs witnesses. No authority has been relied upon in support of this submission. In my view, this submission clearly over-looks the intention behind introducing Rule 11 by Bombay amendment. Order 39, Rule 11 as applicable to Bombay reads thus :-