# Gaya Prasad Tiwari v. Allahabad Development Authority - **Citation:** (2019) 2 ILRA 1507 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-08-20 - **Case number:** Mattes Under Article. 227 No. 5026 of 2019 - **Bench:** Manoj Kumar Gupta - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-tiwari-v-allahabad-development-authority-44600 - **Pages:** 2 ## Headnote A. Code of Civil Precedure - despite order to proceed exparte against the defendantrespondent-if evidence not concludeddefendant can always appear and cross examine witness and can recall proceedings-if shown good cause to the court. Held: - that even though where the evidence of the plaintiff had not concluded, the defendant against whom exparte proceedings are being held, can always appear before the trial court and pray for cross-examining the plaintiff's witnesses. The said right of the defendant is not taken away merely for the reason that an order was passed on a previous date for holding exparte proceedings against him. Writ Petition dismissed (E-8) List of Cases Cited: - ## Text 2 All. Gaya Prasad Tiwari Vs Allahabad Development Authority 1507 assertion in the written statement is that after some time, opposite party No.2 left the matrimonial house alongwith her goods. The exact date on which she left the matrimonial house has not been disclosed. There is also no assertion in the written statement that during the period they were living together in the matrimonial house, they had no access to each other. The specific case of the opposite parties as per assertions made in the plaint is that opposite party No.1 was four years of age at the time of filing of the plaint. It would mean that opposite party No.1 was born in the year 2007. Santosh Kumar is alleged to have died on 29.12.2007 while the presumption under Section 112 of the Evidence Act would stand attracted even where any person was born within 280 days after the marriage had come to an end (in the instant case on account of death of Santosh Kumar). The alleged entry relating to date of birth of opposite party No.1 in the family register is in serious dispute and the said aspect is yet to be examined during trial on basis of evidence to be led by the parties. 11. A DNA test to determine paternity of child should not be directed as a matter of course. The court has to consider various diverse aspects including presumption under Section 112 of the Evidence Act. At this juncture applying the test of 'eminent need' laid down by the Supreme Court in Bhabani Prasad Jena (supra), this court finds no illegality in the view taken by the court below to warrant interference in exercise of supervisory power under Article 227 of the Constitution. 12. The petition lacks merit and is accordingly dismissed. ---------- (2019)10ILR A 1507 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.08.2019 BEFORE THE HON'BLE MANOJ KUMAR GUPTA, J. Mattes Under Article. 227 No. 5026 of 2019 Gaya Prasad Tiwari ...Petitioner Versus Allahabad Development Authority ...Respondent Counsel for the Petitioner: Sri B.S. Pandey Counsel for the Respondent: Sri Devi Prasad Mishra, Sri Brijendra Kumar A. Code of Civil Precedure - despite order to proceed exparte against the defendantrespondent-if evidence not concludeddefendant can always appear and cross examine witness and can recall proceedings-if shown good cause to the court. Held: - that even though where the evidence of the plaintiff had not concluded, the defendant against whom exparte proceedings are being held, can always appear before the trial court and pray for cross-examining the plaintiff's witnesses. The said right of the defendant is not taken away merely for the reason that an order was passed on a previous date for holding exparte proceedings against him. Writ Petition dismissed (E-8) List of Cases Cited: - 1. Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 SC 993 (Delivered by Hon'ble Manoj Kumar Gupta, J.) 1508 INDIAN LAW REPORTS ALLAHABAD SERIES 1. The instant petition is directed against the order dated 18.1.2018 passed by the trial court allowing application 50C filed by the defendant-respondent seeking permission of the court to crossexamine plaintiff's witnesses. It is noteworthy that the suit is proceeding exparte against the defendant-respondent and its right to file written statement stands forfeited. It has been held by the trial court that even then it would not be debarred from cross-examining the witnesses of the plaintiff-petitioner. Aggrieved by the said order, the petitioner filed a revision, which has also been dismissed by the impugned order dated 29.4.2019. 2. Learned counsel for the petitioner submitted that once the suit was proceeding exparte against the defendant-respondent, the trial court erred in allowing the application for cross-examination of the plaintiff's witnesses. 3. In Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 SC 993, the Supreme Court has explained the scheme of Order 9 CPC. It has held that where the court passes an order to proceed exparte against the defendant, it may take evidence of the plaintiff then and there and also pronounce the judgement. In other type of cases, the evidence of the plaintiff might not be concluded on the hearing day on which defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. Consequently, if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non- appearance on the previous day or days, he might have the earlier proceedings recalled-"set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. In such a case, he is not precluded from taking part in the remaining proceedings of the suit or whatever might still remain. The only impediment is that he cannot claim to be relegated to the position he occupied at the commencement of the trial. 4. It would thus mean that where the evidence of the plaintiff had not concluded, the defendant against whom exparte proceedings are being held, can always appear before the trial court and pray for cross-examining the plaintiff's witnesses. The said right of the defendant is not taken away merely for the reason that an order was passed on a previous date for holding exparte proceedings against him. 5. Consequently, this Court finds no illegality in the view taken by the courts below in allowing the application of the defendant-respondent to cross-examine the plaintiff's witnesses. 6. The petition lacks merit and is dismissed. ---------- (2019)10ILR A 1508 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.09.2019 BEFORE THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J. THE HON'BLE PANKAJ BHATIA, J.