PARKASHO Vs. DARSHANA

JUDGEMENT

(1.) SMT. Parkasho, one of the defendants, challenges in this revision petition order of the trial Court dated August 5, 1987 whereby her counsel was declined the permission to cross-examine Rishikesh, plaintiff's witness The order was passed while recording statement of the witness. The request was declined on-the ground that Smt. Parkasho, defendant No. 2, had rot contested the suit by filing written statement and thus under Sections 137 and 138 of the Evidence Act, she could not be treated to be an adverse party.

(2.) AFTER hearing counsel for the parties, I find that the approach of the trill Court is not correct. A party, who does not appear or does not file any written statement, does not necessarily mean to be consenting to the claim of the plaintiff. Even if a defendant is proceeded ex parte, he can join the proceedings from the subsequent stage and participate therein. Such a defendant is to be permitted to cross-examine the witness of the plaintiff at that stage. This position has been clarified by the Supreme Court in Sangram Singh v. Election Tribunal,1 and Arjan Singh v. Mohindera Kumar,2 Relying upon both these decisions, the Court in Hari Inder v. Brij Kumar Dhir and Ors,3 held that the Co art below was in error in stopping the defendant, who was proceeded ex parte from crass examining the witnesses.

(3.) IN view of the position of law as stated above, the order of the trial Court cannot be sustained. The revision petition is accepted without any order as to costs. The order of the trial Court declining permission to the defendant to cross-examine the witnesses is set aside. Parties, through their counsel are directed to appear in the trial Court on 28-5-1990.