P L D 1989 Lahore 193 (PLP)

This civil revision has arisen out of a suit for partition and rendition of accounts. It was filed by respondent No.l, Muhammad Ismail, against the petitioners, Muhammad Ishaq and others, and respondent No.2, Hafiz Muhammad Yaqoob. Respondent No.2 entered appearance in the suit and filed written statement but the petitioners did not do so. As a result, defence of the petitioners was struck off on 20th July, 1987, under Order VIII, rule 10, of the Code of Civil Procedure, by the Civil Judge who was seized of the suit. Order in this regard was challenged by the petitioners by means of a civil revision which was dismissed by this Court. Thereafter, the petitioners made an application seeking permission to participate in the proceedings of the suit and cross‑examine the witnesses of respondent No.l (plaintiff). This application was dismissed by the learned Civil Judge by means of order, dated the 4th June, 1988 which has been assailed by the petitioners in the civil revision in hand.

2. In the impugned order, it was held by the learned Civil Judge that since the petitioners' defence had been struck off and the civil revision against the order passed in this regard had also not met with success, they could not be permitted to participate in the proceedings of the suit and cross‑examine the witnesses. Obviously, by witnesses he meant the witnesses of respondent No.l (Plaintiff).

3. It was contended by learned counsel for the petitioners that despite the order by which the petitioners' defence was struck off, the petitioners could take part in the proceedings of the suit and also cross‑examine the witnesses of respondent No.l and that the learned Civil Judge had committed material irregularity in directing otherwise. In this connection, reliance was placed by him on Khalilur Rehman Bhutta v. Razia Naz and another (1984 CLC 890) and Messrs Landhi Industrial Trading Estates Ltd. , Karachi , . Government of West Pakistan through Excise and Taxation Officer, "N" Division, Karachi (1970 S C M R 251).

4. On the other hand it was urged by learned counsel for respondent No.l that since the petitioners were precluded from putting up their defence they had no locus standi . to cross‑examine the witnesses of their adversary i.e. respondent No.l (plaintiff). He cited State Life Insurance Corporation v. Mst. Sarwat Kazmi (1979 SCMR 295) to support his contention.

5. In the case of Khalilur Rehman Bhutta, it was clearly held by my learned brother, Muhammad Afzal Lone, J. that even if ex parte proceedings against a defendant are not set aside, he is entitled to take part in proceedings following the date on which he is proceeded against ex parte and also cross‑examine witnesses of the plaintiff to test their veracity. No other direct authority was cited before me with regard to the right of a defendant, whose defence is struck off, to cross‑examine witnesses of the plaintiff. As for the case of State Life Insurance Corporation, relied upon by learned counsel for the respondent, it involved interpretation of Sind Chief Court Rules (O.S.) which are not applicable to this Court. In the said case an attempt was made by the defendant, who had been proceeded against ex parte, to confront the witnesses of the plaintiff with some medical certificates but he was not allowed to do so. In this connection, it was observed by the Supreme Court that no useful purpose would have been served even if he had been allowed to confront the witnesses of the plaintiff with the medical certificates. The Supreme Court did not go into the merits of the said legal contention observing that they "leave it up to be considered in some other case". In my humble opinion, therefore, the case of State Life Insurance Corporation is of little help to the respondent.

7. Case in which the defence of a defendant is struck off is. similar to a case in which ex parte proceedings are ordered against a defendant. It has been repeatedly ruled that the defendant against whom ex parte proceedings are ordered is entitled to take part in the proceedings of the suit following the order by which heir. proceeded against ex parte without getting that order set aside. The afore mentioned cases of Khalilur Rehman Bhutta and Messrs Landhi Industrial Trading Estates Ltd., Karachi as also the case of Ghulam Muhammad and others v. Mst. Irshad Begum and others (P L D 1964 (W.P.) Lahore 782) are some of the authorities in point. Participation in the proceedings of the suit does not merely mean appearing before the Court without doing anything. If the witnesses of the plaintiff are examined in the presence of such defendant but the latter is not allowed to cross‑examine them, it will, for all practical purposes, amount to denial of participation ‑to the latter. It is true that when the defence of a defendant is struck off, certain restrictions are placed on his efforts to stop the passing of a decree in favour of the plaintiff and against him but there should be no bar to his, taking such steps as can be legally resorted to by him for avoiding! such decree, by observing the said restrictions also. For instance, when the plaintiff examines a witness to substantiate his claim the defendant, whose defence has been struck off, can demonstrate, by cross‑examining the witness, that he (witness) is inimically disposed towards him and as such his statement could not be used to his disadvantage.

8. It is also noteworthy that in the present case the plaintiff would not have an easy time even if right of cross‑examination is denied to the petitioners because respondent No.2, who is very much contesting the suit as one of the defendants, would be entitled to cross‑examine his witnesses. Respondent No.2 will also have a right to produce evidence in rebuttal.

9. For the reasons given above, I hold that the petitioners have a right of participation in the proceedings of the suit despite the subsistence of the order by which their defence was struck off, and that right includes the right to cross‑examine the witnesses of respondent No.l (plaintiff).

10. This civil revision is, accordingly, accepted and impugned order passed by the learned Civil Judge set aside with no order as to costs. A.A./M‑1089/L Revision accepted.