JUDGMENT Tarun Agarwala, J.
1. Original suit No. 55 of 2000 was instituted for the cancellation of a registered deed of assignment conveying lease hold rights by the defendant-respondent 3rd set in favour of the defendant respondent 2nd set on the ground that the said assignment was obtained by fraud. A further prayer was also made that a fresh deed of assignment should be executed by the said defendants. It transpires, that on 21.11.2000, an order was passed by the Court, to proceed exparte against the defendant. Subsequently, an application for the recall of the said order was filed by the defendant which was allowed. Thereafter, on account of the non-appearance of the defendant, an order to proceed exparte was passed by the court on 22.1.2004. The examination-in-chief of the witness of the plaintiffs, filed on an affidavit, was taken on the record of the case. The trial court by an order dated 22.1.2004 fixed 25.2.2004 for an exparte hearing. On 25.2.2004, the defendant appeared and filed an application 46-C, praying that he may be permitted to cross-examine the witness of the plaintiff. This application was rejected by the trial court, by an order dated 6.5.2004. The defendant filed a revision which was dismissed by an order dated 11.2.2005. Consequently, the present writ petition.
2. Both the courts below rejected the application of the defendant-petitioner by applying the principles laid down by the Supreme Court in the case of Sangram Singh v. Election Tribunal Kotah and Anr. . The Court below held that an order for hearing was passed by the trial court and unless the said order was recalled, the defendant could not be permitted to cross-examine the witness of the plaintiff.
3. Heard Sri J.J. Munir, the. learned Counsel for the petitioner and Sri V.K. Agarwal, the learned Counsel for the respondents.
4. The Supreme Court in Sangram Singh's case (supra) while interpreting the provisions of Order 17 Rules 1 and 2 of the C.P.C. read with Order 9 Rule 6(1)(a) held that if a party does not appear on the day to which the hearing of the suit was adjourned, he could not be stopped from participating in the proceedings simply because he did not appear on the first date or on the adjourned date. The Supreme Court further held that the defendant had a right to appear at an adjourned hearing but had no right to set back the hands of the clock in view of Order 9 Rule 7 of the C.P.C. which provided that where the Court had adjourned the hearing of the suit exparte, the defendant, if he appeared on or before such date of adjourned hearing and assigned good cause for his previous non-appearance, the Court may, recall its order upon such terms as the court directs to cost or otherwise.
5. In view of the aforesaid, the Court passed an order dated 22.1.2004 keeping the affidavit of the witness of the plaintiff on the record and fixed 25.2.2004 for an exparte hearing. On 25.2.2004, the defendant appeared and filed an application for the cross-examination of the witness of the plaintiffs. The question is, whether the defendant could be permitted to appear on the adjourned date, i.e. 25.2.2004? The answer to this question is, that in view of Sangram Singh's case (supra), the defendant can appear on the adjourned date and proceed from there onwards but, he had no right to set back the hands of the clock, in view of the provisions of Order 9 Rule 7. The second question that arises for consideration is, whether by praying for the cross-examiriation of the witness, the defendant was setting back the hands of the clock in view of the fact that the Court had fixed the date for an exparte hearing ?
6. Order 17 Rule 2(e) has been substituted by Act No. 46 of 1999 w.e.f 1.7.2002 which reads as under:
Order 17 Rule 2
(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.
7. From a perusal of the aforesaid it is clear that the Court is required to dispense with the examination-in-chief of the witness if the party or his pleader is not present or refuses to cross examine the witness. In the present case, the Court by an order dated 22.1.2004, while fixing the date for an exparte hearing, did not dispense with the cross examination of the witness by the defendant.
8. Further, Order 18 Rule 4 provides as under:
4. Recording of evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.
9. From a perusal of the aforesaid, it is clear that when the examination-in-chief of the witness is filed on an affidavit, the opposite party could request the Court for the cross-examination of the witness. This situation for cross examination of the witness can only arise after the examination-in-chief of a witness on an affidavit has been filed in the Court. In the present case, the examination-in-chief of the witness of the plaintiff was filed in the Court on 22.1.2004. The Court fixed 25.2.2004 for hearing. The Court did not dispense with the cross-examination of the witness by the defendant. Consequently, on the adjourned date, i.e., on 25.2.2004, the defendant appeared and applied for the cross-examination of the witness of the plaintiff. By doing so, the defendant was within his rights to cross examine the witness, as contemplated under Order 18 Rule 4 of the C.P.C. and, by filing an application for the cross examination of the witness of the plaintiff, he was not putting back the hands of the clock.
10. In view of the aforesaid, the court below committed an error in rejecting the application of the defendant for the cross-examination of the witness of the plaintiff. The impugned orders, therefore cannot be sustained and are quashed. The writ petition is allowed. The defendant's application for the cross-examination of the witness of the plaintiff is also allowed. The trial court shall fix a date for the cross-examination of the witness of the plaintiffs. In the circumstances of the case there shall be no order as to cost.