ORDER
C.V. Ramulu, J.
1. This civil revision petition under Article 227 of the Constitution of India is directed against an Order dated 8-3-2006 made in I.A. No. 2 of 2006 in O.S. No. 45 of 1999 on the file of the learned Additional Junior Civil Judge, Kamareddy.
2. Petitioner is the plaintiff. Respondents are defendants. Petitioner laid the above suit for declaration of title over the suit schedule property and for permanent injunction. In spite of granting several opportunities, respondents have not filed their written statement. Therefore, their right to file written statement was forfeited by the Court below in the year 1997. However, thereafter, the 3rd respondent-defendant participated in the suit proceedings and cross-examined the witnesses of the petitioner-plaintiff. Later, the present I.A. No. 2 of 2006 is filed by the petitioner-plaintiff praying the Court to close the evidence of defendants, since their right to file the written statement was forfeited. Respondent No. 3 herein filed a counter stating that the defendants were set ex parte in the suit and thereafter the Court below dismissed the suit; upon which, the petitioner-plaintiff preferred an appeal before the learned District Judge, Nizamabad. The appellate Court remanded the matter to the trial Court for fresh disposal after adducing further evidence. Thereafter, the matter was taken up by the trial Court and after closing the plaintiffs side evidence, the matter was adjourned for defendants’ side evidence. Further, even after non-filing of the written statement, the right of adducing evidence on behalf of the 3rd defendant is not forfeited and he is having every right to lead evidence on his behalf. The plaintiff has no right to deny his natural right. After hearing both the parties, the Court below, however, dismissed the petition. Aggrieved by the same, the present civil revision petition is filed.
3. Learned Counsel for the petitioner states that when the right of the defendants to file written statement was forfeited, there are no pleadings on the basis of which evidence can be led by the defendants. Therefore, allowing the defendants to adduce evidence on their behalf is misconceived, contrary to law and law laid down by the Apex Court. In this regard, he relied upon the decision in Modula India v. Kamakshya Singh Deo , wherein it was held as under:
These provisions of the Code of Civil Procedure, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the Court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us.
For the above reasons, we agree with the view of Ramendra Mohan Datto, ACJ, that, even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, 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 plaintiffs witnesses; and
(b) to address argument on the basis of the plaintiffs case.
We would like to make it clear that the ‘ defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective 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 form of suggestions put to the plaintiffs witnesses.
4. Though the learned Counsel for the 3rd respondent has not seriously disputed as to the ratio laid down in the above judgment and its applicability to this case, he states that earlier when defendants were set ex parte and the suit was dismissed, the matter was carried in appeal and the appellate Court remanded the matter back to the trial Court for fresh disposal after adducing further evidence. Therefore, it must be deemed that the right of the defendants he been recognized by the appellate Court and as such, they are entitled to lead evidence.
5. I am afraid, I cannot accede to the contention of the learned Counsel for the 3rd respondent. No superior Court can direct its subordinate Court to pass any orders contrary to law. Even if the appeal was disposed of stating that the matter is remitted back for fresh consideration after adducing further evidence, it must only be construed that the further evidence is to be adduced as per law. Since the right of the 3rd defendant to file written statement was forfeited, he is not entitled to lead any evidence. Even the right of the 3rd defendant to cross-examine is limited only to certain extent i.e., pointing out the falsity or weaknesses of the plaintiffs case and not more than that.
6. Be that as it may, in view of the legal position and having regard to the facts and circumstances of the case, I am of the opinion that the Court below grossly erred in dismissing the application filed by the petitioner herein. Therefore, the impugned Order is liable to be set aside and is accordingly set aside. LA. No. 2 of 2006 in O.S. No. 45 of 1999 shall stand ordered.
7. Accordingly, the civil revision petition is allowed. No order as to costs.