MOOLA SINGH Vs. PITAMBER

JUDGEMENT

(1.) The plaintiff-respondents filed a suit for possession of 8 Marlas of land out of Khasra No. 29/32 situate at village Bhareli, tehsil Kalka, against the appellants on the ground that they were the owner of the said land and the appellants were in illegal possession of the same. The appellants asserted in the written statement filed by them, that they had been in possession of this land for over 24 years as owners. In the course of trial, an adjournment was granted at the request of the appellants on payment of costs which they failed to pay, on that basis their defence was struck off. Subsequently, when the plaintiff respondents led their own evidence, the appellants were not allowed to cross-examine the witnesses produced by them. In this manner, on the basis of some evidence which was not allowed to be tested by cross-examination, the suit of the respondents was decreed. The first appeal filed by the appellants was also dismissed. They have now come up in second appeal before me.

(2.) It has been vehemently argued by Mr. Agnihotri that even if the defence of a defendant in a suit is struck off that does not disentitle him to participate in the remaining proceedings of the suit and to assist the learned trial Court that the witnesses being examined by the other party were not the witnesses of the truth and then to argue that the plaintiff had not been able to make out a prima facie case. It is submitted that the procedure adopted by the learned trial Judge has resulted in manifest miscarriage of justice.

(3.) A similar matter came up for consideration before the Supreme Court of India in M/s Babbar Sewing Machine Co. v. Trilok Nath Mahajan, 1979 2 RCR(Rent) 581 wherein their Lordships of the Supreme Court observed as under :-