Can defendant cross-examine of plaintiff’s witness without filing written statement in suit?

Question: Can the defendant cross-examine of plaintiff’s witness without filing a written statement in a suit?

The answer to this question is yes. The defendant can cross-examine the plaintiff and his witness without filing a written statement in the suit.

According to Basalingappa Chinnappa Goudar vs. Shantavva And Ors ILR 2002 KAR 260, the Karnataka High Court Held that It is true that as per the provision of CPC order 8, Rule 10 mentions the consequences flowing from not filing the written statement. According to this provision, if any party of the suit from whom a written statement is required under Rule 1 or Rule 9 and they fail to present the same within the time permitted or fixed by the Court. The Court may pronounce the judgment against him, or make such order about the suit it thinks fit, and on the pronouncement of such decision, a decree shall be drawn up. A reading of the provision described above clarifies that when the defendant, who is called upon to file the written statement, fails to present the written statement, two consequences would follow. One is the Court shall pronounce the judgment. If the Court were to adopt the said mode and pronounce the judgment immediately, there is no question of either the plaintiff leading evidence or defendant seeking permission to cross-examine, as non-filing of the written statement judgment is pronounced and there. If the Court were to adopt the second mode, namely, make such other order as it deems fit, then whether the defendant is prohibited from cross-examining the plaintiff. Though the Court has been given the power to pronounce judgment forthwith on the failure of the defendant to file the written statement it is not as if the Court is bound to follow the said procedure as the language of the said provision makes it clear it has the option to make such order as it deems fit, namely if the Court wants proof of allegation of the plaint it has every right to insist on the plaintiff to give evidence of the claim in the complaint. However, the defendant has not filed any written statement. Because the Court wants to be satisfied before a decree is granted that the case pleaded by the plaintiff could be accepted. Once the Court adopting the second procedure, posts the matter for plaintiffs evidence to find out the truth of the allegations made in the plaint to test the veracity of the allegations in the plaint made by the plaintiff two options are available. Court itself may cross-examine the plaintiff or permit the defendant to cross-examine as plaintiff, as he is better equipped to cross-examine, to get at the truth. If the defendant can show that the plaintiff’s case cannot be accepted, there cannot be a decree against him.[1].

In this regard it is useful to refer to a judgment of the Calcutta High Court in the case of Debendra Nath Dutt v. Satyabala Dasi and Ors.(AIR 1950 Cal 217), wherein it has been held.-

“Thus then there are two consequences of not entering appearance under the Rules. One is that the suit is liable to be heard ex parte, and the other is that no written statement can be filed. In that context, I am not inclined to impose more punishment than those two so explicitly stated by the Rules. Therefore, I think that a party subject to these handicaps imposed by the Rules can still appear under the Civil Procedure Code when the suit is called on for hearing from the unprotected list, not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiff’s case on the evidence that the Court will not pass any decree in the plaintiff’s favor but also make such arguments and submissions on law and such evidence as the plaintiff may have brought to the Court. In my opinion, these are valuable rights under the Code, which are not taken away by any Rules of the first side. ………. In my opinion, the filing of the written statement is not the only way of defending a suit. A defendant in my judgment may ably and successfully defend a suit against him by cross-examination and arguments”.[2].

The judgment as mentioned earlier has been approved by the Supreme Court in the case of Modula India v. Kamakshya Singh Deo,(1989 AIR SC162), has held as under.-

“It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The plaintiff’s witnesses’ mere statement cannot constitute the plaintiff’s evidence in the case unless and until it is tested by cross-examination. The right of the defense to cross-examine the plaintiff’s witnesses can, therefore, be looked upon not as a part of its strategy of defense but rather as a requirement without which the plaintiff’s evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defense of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiff’s witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute”.

Further, it held.-

“We, therefore, think that the defendant should be allowed his right to cross-examination and arguments. But, we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his evidence. None of the observations or decisions cited have gone to the extent of suggesting that, even though the defense has been struck off, the defendant can adduce evidence of his own or try to substantiate his case”.

5. Dealing with the language employed in Order 8, Rule 10 of the CPC is what the Supreme Court had to say.-

“Over, following Rule 10, while any party from whom a written statement is needed fails to present the in the time permitted or fixed by the Court, the Court “shall pronounce judgment against him or make such order to the suit thinks fit”. It will be seen that these rules are only permissive. They enable the Court in an appropriate case to pronounce a decree straightaway based on the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court “shall” pronounce judgment against him, it is evident from the language of the rule that there is still an option with the Court either to pronounce judgment based on the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favor of the plaintiff straightaway because a written statement has not been filed”.

Therefore, it becomes clear in a suit the defendant has the right to show that the case pleaded by the plaintiff is false or cannot be acted upon, and in addition to that, he can put forth his defense to defeat the claim of the plaintiff. By not filing the written statement, he loses his right to put forth his defense to defeat the plaintiff’s complaint only, but he does not lose his right to demolish the plaintiff’s case by cross-examination. The defendant by cross-examination of the plaintiff and his witnesses can destroy the case of the plaintiff and also address arguments based on the evidence led by the plaintiff, and also make a submission on law and satisfy the Court that on the material on record, the plaintiff’s case cannot be accepted. No decree can be passed in favor of the plaintiff.

6. However, it is clear that the defendant would not be entitled to lead any evidence or his cross-examination be permitted to travel beyond the minimal objective of pointing out the falsity or weakness of the plaintiffs’ case. He is allowed to project his defense either directly or indirectly or in the form of suggestions to the plaintiffs’ witnesses.

7. Therefore, the Court below was in total error in refusing to permit the defendants to cross-examine the plaintiff, even though they had not filed any written statement. As such, the impugned order cannot be sustained. Accordingly, it is set aside. Hence, I pass the following order:

A civil revision petition is allowed. The impugned order is set aside. Defendants are permitted to cross-examine the plaintiff though they have not filed the written statement, to the extent indicated above.[3].

reference:

(1) Basalingappa Chinnappa Goudar vs. Shantavva And Ors.

(2) Debendra Nath Dutt v. Satyabala Dasi and Ors.(AIR 1950 Cal 217).

(3) Modula India v. Kamakshya Singh Deo,(1989 AIR SC162).