ORDER
M.Y. Eqbal, J.
1. This application under Article 227 of the Constitution of India at the instance of the defendant/petitioner is directed against the order dated 5.4.2005 passed by Sub-Judge, I, Rajmahal in Title Suit No. 41/2001, whereby he has dismissed the petition filed by the petitioner seeking permission to adduce evidence by examining witnesses in the suit.
2. The facts of the case lie in a narrow compass:
The plaintiff/respondents filed Title Suit No. 41/01 against the defendants for declaration that plaintiffs are the rightful owner being the heirs of late Hukka Tudu and for permanent injunction restraining the defendant/petitioner from claiming any right in the property. The defendant/petitioner appeared in the said suit but no written statement was filed. Petitioner was thereafter, debarred from filing written statement by order dated 7.7.2004. The hearing of the suit, thereafter, proceeded and the petitioner examined witnesses. On 8.2.2005 petitioner filed application praying to the court below to permit him to adduce evidence for just decision of the suit an also prayed for making some documents exhibited. The said application rejected by the court below in terms of the impugned order.
3. Learned Counsel appearing for the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that even by filing written statement, defendant has every right to lead evidence by examining witnesses and by proving documents. Learned Counsel relied upon the decision of the Patna High Court in the Case of “Siai Sinha v. Shivadhari Sinha and Ors.” , in the case of “Bindeshari Kamkar and Ors. v. Radha Tiwari and Ors.” and in the case of “Ganpat Chand v. Jeth Mal” .
4. In Siai Sinha Case (Supra), petitioner who was newly added defendant did not appear and did not file any written statement for about 3 years. Suddenly, he appeared and filed application for time for filing written statement. The trial court refused to permit him to file written statement. The defendant/petitioner was also not permitted to take part in the hearing of the suit. The defendant challenged the said order by filing revision before the Patna High Court. The question that fell for consideration was whether in absence of any written statement the defendant can be debarred from cross-examining the witnesses and to adduce evidence. His Lordship Justice N.L. Untwalia observed:
The suit, however, was not taken up for hearing ex parte against the petitioner nor was it ordered to be so taken up. The position of law in such a case is that a defendan, even without filing a written statement, can take part in the hearing of the suit. He may cross-examine the plaintiff’s witnesses .to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff [see for reference a Bench decision of the Calcutta High Court in J.B. Ross and Co. v. C.R. Scriven ILR 43 Cal 1001 : AIR 1917 Cal 269 (2)]. Keeping this position of law clearly in mind, the court below is directed to permit the petitioner to take part in the proceedings in the suit at the time of the hearing.
5. In the case of “Bindeshari Kamkar Case (Supra) the defendant appeared pursuant to service of summons but inspite of several adjournments granted to the defendant for filing written statement, he did not file written statement. The court ultimately rejected the application for further time and ordered that defendant shall be precluded from filing any written statement but even in absence of written statement, defendant shall be allowed to participate in the hearing of the case. However, on the first hearing of the case, the defendant filed written statement and the court ordered the same to be kept on record. That order was challenged by the defendant before the Patna High Court. The point raised by the defendant was that the court had no jurisdiction to take away the right of the defendant to file written statement on or before the first hearing of the Suit. While dismissing the revision petition, the Court observed:
As I have already stated earlier, counsel for the petitioners placed great reliance on the decision in the case of Chikkula Chendraiah (AIR 1961 Andhra 102) (Supra). I have, however, already shown that the decision was on a different set of facts inasmuch as in that case the order forfeiting the right of filing written statement was taken away much before the first datre of hearing. The learned Judge was, therefore, not called upon to answer the question as to what would happen if the defendant did not file the written statement after the first day of hearing, namely the date of framing the issues, within the time permitted by court. There are observations, however, quoted earlier which are relied upon by counsel for the petitioners in support of the argument that there is nothing in Rule 1 which enables a court to forfeit the right of filing a written statement except in cases where the court requires him to do so. With very great respect, I am not prepared to concur in the view. This is the solitary decision in which such an observation has been made. In the decision of this Court in the case of Siai Sinha (AIR 1972 Pat. 81) (Supra) Untwalia, J. had held that the refusal by the court to permit a defendant who had not filed written statement within the time permitted by the court, was correct. True, no reasons have been given for the conclusion aforesaid. However, it seems to me that it is clear that the right of the defendant to file a written statement in a case where he is not required by the court to do so enures only until the first day of hearing. After that that day it is open to the court to grant time for the same or refuse to do so. The right does not continue where the court refuses to extend the time. In. my view, it is the inherent right of the court to regulate the procedure according to the Code. If the Code gives an option to the defendant to file such a written statement by a certain date, this option must be deemed to come to an end after that date and in such circumstances the defendant is at the mercy of the court. Therefore, the correct view in law according to me is that after this day of first hearing it is open to the court to grant extension of time for filing the written statement or not and it is the inherent right of the court either to grant such time or to refuse it. The right of filing the written statement can, therefore, be forfeited after the day of first hearing, though not before it. The mere fact that Rule 1 does not contain such a provision is of no importance for the simple reason, as I have said above, that the court has the inherent power to do so.
In the present case the defendant did not file the written statement within the time permitted by the court and the court, therefore, said that no further time would be granted and fixed the case for hearing; while doing so the court further said that the defendant would be entitled to take part in the proceedings of the suit even in the absence of the written statement. That is in accordance with the decisions of this Court. Thus, in the present case the order does not suffer from any illegality.
6. The aforementioned decisions of the Patna High Court shall in no way help the petitioner, inasmuch as the court below has allowed the petitioner to cross-examine all the witnesses and in fact the defendant did cross-examine all the witnesses. But where defendant fails to file written statement or the defendant is debarred to file written statement, in such a case he can not adduce evidence in support of his case for which there is no pleading in the suit. In absence of any pleading, if the defendant is allowed to lead evidence in support of his case then the very purpose of the provisions of the Code of Civil Procedure shall be defeated and the object of various amendments made in the Code shall be frustrated.
7. For the aforesaid reasons, I do not find any error of law or error of jurisdiction in the impugned order passed by the court below. This writ application is, therefore, dismissed.