GANPAT CHAND Vs. JETH MAL

JUDGEMENT

(1.) This appeal has been filed against the order passed by the District Judge, Jodhpur D/- Hay 5, 1981 allowing the defendants' appeal and setting aside the judgment and decree passed by the Munsif, Jodhpur City, Jodhpur dated Dec. 22, 1979 and remanding the case to the learned Munsif with a direction that the defendants be allowed to take part in the proceedings in the suit so as to cross examine the plaintiff's witnesses. He further directed that the defendants would not be entitled to lead evidence in rebuttal.

(2.) The plaintiff Jeth Mal filed a suit for ejectment and for recovery "of arrears of rent. It is not in dispute that the defendants failed to file a written statement in spile of several opportunities and ultimately on July 13, 1978 on the defendants' failure to file a written statement, the learned Munsif passed an order directing that proceedings be taken under Order 8, Rule 10 C.P.C. and ex parte evidence fee recorded. An application was filed by the defendants under Order 9, Rule 7 C.P.C. requesting that the order passed against them for taking ex parte proceedings be set aside. Learned Mun-sif dismissed the aforesaid application by his order dated Sept. 19, 1978 after observing that no ex parte order was passed by him, but on July 13, 1978 he had decided to proceed under Order 8, Rule 10 C.P.C. A request by the defendants to reconsider the said order was rejected by the learned Munsif on Oct. 5, 1979. Thereafter the learned Munsif recorded the plaintiff's evidence and decreed the suit ex parte on Dec 22, 1979.

(3.) The defendants preferred an appeal before the learned District Judge, which was partly allowed by him as mentioned above. Learned District Judge, held that the words "OR make such order in relation to the suit as if thinks fit" occurring in Order 8, Rule 10 C.P.C. do not permit the trial Court to hear the suit ex parte against the defendant, who has failed to file a written statement. It was, therefore, held that the defendants were entitled to take part in further proceedings in the suit and also to cross examine the witnesses produced by the plaintiff, but without, assigning any reason he directed that the defendants would have no right to examine their evidence in rebuttal.