NRUSINGHA NANDA MAHAPATRA Vs. GAUTAM DASH MAHAPATRA

JUDGEMENT

(1.) HEARD the Petitioner in person and the Learned Counsel for the Opposite Party No.1.

(2.) THE Writ Petitioner has challenged the Order Dated 15.5.2009 passed in C.S. No. 391 of 2005 by the Learned Civil Judge (Sr. Division), Cuttack. The Petitioner is the Defendant No.1 in the suit.

(3.) IT appears from the impugned order that the Learned Trial Court has placed reliance on the decision in the case of Modula Indian v. Kamakshya Singh Deo, AIR 1989 SC 162. In the case of Modula India (supra), the Supreme Court was examining the right of a Defendant to participate in the hearing of the proceeding when his defence has been struck off. In the facts of the said case, the Supreme Court held that even in a case where the defence against delivery of possession of a tenant is struck off under Section 17 (3), the Defendant tenant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled (a) to cross -examine the Plaintiff's witnesses and (b) to address argument on the basis of the Plaintiffs case. However, When the Defendant is afforded the aforesaid right the would not be entitled to lead any evidence of his own nor can his cross -examination be permitted to travel beyond the very limited object of pointing out the falsity or weaknesses of the Plaintiffs case. In no circumstances, should the cross -examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the Defendant's case either directly or in the from of suggestions put to the Plaintiff's witnesses.