Skip to content


Joginder Singh Vs. Teerath Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1400 of 1976
Judge
Reported inAIR1980All351
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act
AppellantJoginder Singh
RespondentTeerath Mal and ors.
Appellant AdvocateV.K. Barman, Adv.
Respondent AdvocateK.M. Dayal, Adv.
DispositionAppeal dismissed
Excerpt:
civil - defence striking off - order 15 rule 5 code of civil procedure, 1908 - suit for ejectment and arrears of rent - no plea left from defendant's side - no amount of evidence can be looked into on a point not pleaded. - - these attempts failed, when the trial court took up the suit for final hearing on 23rd april, 1975, shri s. the defendant could not have been permitted to tender any evidence after his defence had been struck off, for it is well settled that no amount of evidence can be looked into on a point not pleaded and there could have been no plea left from the defendant's side when his defence had been struck off and there could be no question of examining any witness from his side whether on commission or otherwise......parte amounted to a refusal to permit the defendant to participate in the further hearing of the suit after striking off his defence; and further that his evidence for recording which a commission had already been ordered to be issued before the striking off the defence could not have been shut out, and the order recalling the commission was illegal.4. mr. barman relied on the case of raghubir v. devendra kumar arora (1976 all lr 453: (air 1977 noc 82)), which followed the principles laid down by the supreme court in the cases of paradise industries corporation v. k.p. products, (air 1976 sc 309) and sangram singh v. election tribunal, kotab, (air 1955 sc 425). the learned single judge of this court ruled that 'the striking off the written statement of the defendant, simply meant that.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for ejectment and arrears of rent. The substantial question of law on which notice was issued to the respondents at the hearing under Order 41, Rule 11 of the Code of Civil Procedure is the one contained in ground No. 7 of the memorandum of appeal which is to the effect that 'the court below had no jurisdiction to proceed ex parte even though defence had been struck off.'

2. The appellant's defence was struck off by the trial court under Order 15, Rule 5 of the Code of Civil Procedure, by order dated 5th November, 1973. The operative portion of the order reads as follows:

ORDER

41-C is hereby allowed. The defence of the defendant is hereby struck off.

The suit shall proceed ex parte against the defendant. Fix 29-11-1973 for ex parte hearing.'

The parties had already gone to trial and the plaintiff's evidence had already been recorded and even an order passed on the 16th August, 1973 for the issue of a commission to the District Judge, Ambala for examination of a witness at the defendant's instance. The defendant thereafter made repeated attempt to have the order striking off his defence recalled. These attempts failed, when the trial court took up the suit for final hearing on 23rd April, 1975, Shri S.M. Srivastava Advocate was present for the plaintiff and Shri R. Singh Advocate for the defendant. Learned counsel for the plaintiff stated that he shall not lead any additional evidence. The trial court thereupon observed that the suit is proceeding ex parte against the defendant as the defence has been struck off under Order 15, Rule 5 of the Code of Civil Procedure.' The trial court heard the arguments and reserved judgment fixing 25th April, 1975 for pronouncing it. A further note has been added to the above orders of the trial court and it is to the effect that the defendant's evidence having been struck off, no commission need be issued to the District Judge, Ambala, as the defendant's evidence is not to be recorded due to the striking off of the defence.

3. On these facts Mr. V. K. Barman, learned counsel for the appellant contended before me that the order directing the suit to proceed ex parte amounted to a refusal to permit the defendant to participate in the further hearing of the suit after striking off his defence; and further that his evidence for recording which a commission had already been ordered to be issued before the striking off the defence could not have been shut out, and the order recalling the commission was illegal.

4. Mr. Barman relied on the case of Raghubir v. Devendra Kumar Arora (1976 All LR 453: (AIR 1977 NOC 82)), which followed the principles laid down by the Supreme Court in the cases of Paradise Industries Corporation v. K.P. Products, (AIR 1976 SC 309) and Sangram Singh v. Election Tribunal, Kotab, (AIR 1955 SC 425). The learned single Judge of this Court ruled that 'the striking off the written statement of the defendant, simply meant that he was not entitled to press his plea and might not even be entitled to adduce evidence but that could not prevent him from cross-examining the plaintiff and his witness and from showing that on the basis of material on the record the plaintiff was not entitled to any decree.'

5. Now, in the present case it is undisputed that the defendant had the fullest opportunity of cross-examining the witnesses of the plaintiff. The plaintiff examined no further evidence after the striking off of the defence. There has been no complaint that the defendant was not permitted to make his submissions in the course of arguments before the trial court on 23rd April, 1975. The only point raised was that he was not permitted to lead his evidence, for the recording of which a commission has already been ordered 'to be issued. The defendant could not have been permitted to tender any evidence after his defence had been struck off, for it is well settled that no amount of evidence can be looked into on a point not pleaded and there could have been no plea left from the defendant's side when his defence had been struck off and there could be no question of examining any witness from his side whether on commission or otherwise. The appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //