# Smt. Saroj Singh Chauhan v. Arvind Kumar Chauhan

- **Citation:** (2019) 4 ILRA 20
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** First Appeal No. 737 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saroj-singh-chauhan-v-arvind-kumar-chauhan-44931
- **Pages:** 8

## Headnote

Civil Law - Family Court Act (66 of 1984)
Section 19 - Civil Procedure Code (5 of
1908) Order 5, Rule 20 - Order 9, Rule 13 -
Appeal
against
ex
parte
decree
-
Substituted service of summons - Suit for
divorce filed by husband - No summons
served upon wife prior to passing ex-parte
judgment & decree - Court below did not
record its satisfaction that publication had
been made in daily newspaper, which has
wide circulation in locality in which wife
resides - Ex-parte decree & order rejecting
recall application liable to be set aside

First Appeal allowed. (E-5)

List of cases cited: -

## Text

20 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The appeal stands dismissed at
the admission stage itself.
----------

(2019)12 ILR A20

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 737 of 2017
connected with
First Appeal No. 672 of 2018

Smt. Saroj Singh Chauhan ...Appellant
Versus
Arvind Kumar Chauhan ...Respondent

Counsel for the Appellant:
Sri Arvind Kumar Chauhan

Counsel for the Respondent:
Sri Triloki Nath, Sri T.N. Tiwari.

Civil Law - Family Court Act (66 of 1984)
Section 19 - Civil Procedure Code (5 of
1908) Order 5, Rule 20 - Order 9, Rule 13 -
Appeal
against
ex
parte
decree
-
Substituted service of summons - Suit for
divorce filed by husband - No summons
served upon wife prior to passing ex-parte
judgment & decree - Court below did not
record its satisfaction that publication had
been made in daily newspaper, which has
wide circulation in locality in which wife
resides - Ex-parte decree & order rejecting
recall application liable to be set aside

First Appeal allowed. (E-5)

List of cases cited: -

1. Ramji Dass and Others Vs Mohan Singh,
1978 ARC 496 (SC)

(Delivered by Hon'ble Hon'ble Rajeev
Misra, J.)
1. These are two Defendants' First
Appeals filed under Section 19 of Family
Courts Act 1984 (hereinafter referred to
as Act, 1984).

2. First Appeal No. 737 of 2017(
Smt. Saroj Singh Chauhan Vs. Arvind
Kumar
Chauhan)
has
been
filed
challenging judgement dated 25.07.2017
and decree dated 23.08.2017 passed by
Principal Judge, Family Court, Varanasi
in Misc. Case No. 77 of 2008 (Saroj Vs.
Arvind) in Marriage Petition No.565 of
2007 (Arvind Kumar Chauhan Vs. Saroj
Singh Chauhan) whereby and whereunder application dated 03.10.2008 (Paper
No. 4Ga) filed by Defendant-Appellant
(hereinafter referred to as 'Appellant')
under Order IX Rule13 C.P.C. for recall
of exparte judgement dated 08.05.2008
and decree dated 04.08.2008, respectively
has been rejected.

3. First Appeal No. 672 of 2018
(Smt. Saroj Singh Chauhan Vs. Arvind
Kumar
Chauhan)
has
been
filed
challenging exparte judgement dated
08.05.2008 as well as decree dated
04.09.2008 passed by Principal Judge,
Family Court, Varanasi in Marriage
Petition No.565 of 2007 (Arvind Kumar
Chauhan Vs. Saroj Singh Chauhan)
whereby
Court
below
has
allowed
Marriage Petition filed by plaintiffrespondent
(hereinafter
referred
to
as'Plaintiff') and consequently, annulled
marriage of parties.

4. We have heard Mr. T. N. Tiwari,
Advocate, learned counsel for Appellant.
No one has appeared on behalf of
respondent.

5. According to plaint allegations
marriage of Appellant was solemnized
4 All. Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan
21
with
Plaintiff
on
03.05.2004
in
accordance
with
Hindu
Rites
and
Customs. After marriage, Appellant came
to her matrimonial home on 04.05.2004.
After staying about three days at her
marital home, Appellant went to her
parental home and thereafter returned to
her marital home after one month.
According to Plaintiff, Appellant duly
performed her spousal obligations. It is
the case of Plaintiff that at the time of
marriage, Appellant had just passed her
intermediate examination i.e. Class 12th.
However, Appellant wanted to pursue her
studies further. Appreciating her desire
for
further
studies,
Plaintiff
with
permission of his parents got Appellant
admitted in B.A. First Year Course at
Kasi Vidyapith, Varanasi. Consequently,
Appellant started receiving her education
in the aforesaid Course by residing at her
parental home as well as with her
classmates. It is alleged by Plaintiff that
after taking admission in B.A. First Year
Course, Appellant visited her marital
home only for two months but thereafter,
she mostly stayed at her parental home,
despite
repeated
requests
made
by
Plaintiff requesting Appellant not to stay
at her parental home for such long
periods. Appellant on the excuse of her
studies did not pay any heed to the request
of Plaintiff and his parents. Appellant as
such used to visit her marital home at her
will. Appellant came in family way. In the
last days of her family way she insisted
for staying at her parental home and
accordingly went to her parental home.
Ultimately, she gave birth to a girl child
on 29.07.2005 at her parental home.
Plaintiff, his mother and other relatives
allege to have gone to parental home of
Appellant and contributed by every means
for well being of Appellant and newly
born child. According to Plaintiff, he
alongwith his mother visited parental
house of Appellant and brought back
Appellant to her marital home on
05.11.2005. However, just after two days
Appellant on the pretext of her studies
forcibly went to her parental home.
Appellant started residing at her parental
home. On the request made by Plaintiff
and his mother requesting Appellant to
return to her marital home, she was not
agreeable. To the contrary she used to
indulge in creating a 'Facade' on the said
issue. Appellant as such started residing at
her parental home and used to come to her
marital home only to collect money to
meet her expenses. Many attempts are
alleged to have been made by Plaintiff to
pursue Appellant to live in her marital
home but she never agreed. Ultimately,
after great efforts Appellant came to her
marital home but again on the pretext of
her studies, she went back to her parental
home. Appellant is alleged to have stayed
for a period of one or two days at her
marital home and while leaving her
marital home she took away all jewellary
and clothes given by her in-laws at the
time of marriage. After completing B.A.
Second
Year
Course,
Appellant
demanded money for her educational and
other expenses so that she could fill up
form for B.A. Third Year Course.
However, this request of Appellant was
refused by Plaintiff and his family
members on the ground that even if
Appellant is desirous of pursuing her
studies, she should stay at her marital
home and pursue her studies from there
only. However, according to Plaintiff,
Appellant was not agreeable to this
suggestion and ultimately, returned to her
parental home.

6. One day in August, 2006, when
mother of Plaintiff was all alone at home,
22 INDIAN LAW REPORTS ALLAHABAD SERIES
as other family members had gone out,
Appellant came to her marital home
alongwith her brother Manoj Chauhan
and her father. She had a scuffle with her
mother-in-law and took away her clothes
and other goods, which were lying at her
marital home. Plaintiff, his father and his
elder brother -Akhilesh came to know of
aforesaid incident in evening. As such,
they all went to parental home of
Appellant. They had a dialogue with
family
members
of
Appellant
and
requested for sending Appellant to her
marital home alongwith all her jewellery
and clothes. On this, family members of
Appellant revolted and abused father of
Plaintiff. They did not agree to the request
made by Plaintiff and his family members
for sending Appellant to her marital
home. After some time Plaintiff alone
went to meet Appellant at her parental
home for requesting her to return at her
marital home. However, Appellant plainly
refused to return to her marital home.
According to Plaintiff, she alleged that in
case Plaintiff wants to maintain relations
with her, he should separate himself from
his family and start residing with
Appellant at her parental home. Thus, in
October, 2006, father and brother of
Appellant went to the house of Plaintiff to
discuss
about
separation/divorce
of
Appellant from Plaintiff. They requested
for holding a Panchayat in that regard. On
this issue, exchange of hot words between
Plaintiff and father/brother of Appellant is
alleged to have taken place. On this,
father of Appellant and his brother, who
are notorious and have formed a gang,
threatened mother of Plaintiff and after
extending threat and exchanging hot
words, returned. After aforesaid incident,
Plaintiff and relatives of Appellant
wanted
to
amicably
settle
dispute.
Unfortunately on 20.12.2006, father of
Appellant and her brother connived with
each other to get mother of Plaintiff
killed. Unfortunately, mother of Plaintiff
died at her matrimonial home. An F.I.R.
in respect of aforesaid incident was
lodged against unknown persons. Police
upon investigation implicated father and
brother of Appellant as accused. They
were released on bail. Appellant failed to
discharge her spousal obligations after
10.05.2005, nor established conjugal
relations. After 10.02.2005, conduct of
Appellant towards Plaintiff is full of
cruelty and without any reason Appellant
has deserted Plaintiff. Since conduct of
Appellant towards Plaintiff is full of
cruelty and she has also deserted Plaintiff
as such he/Plaintiff filed suit for divorce
on the aforesaid grounds under Section 13
(1) of Hindu Marriage Act, 1955
(hereinafter referred to as Act, 1955).

7. After institution of suit, summons
were issued to Appellant. Summons were
refused to be received by Appellant herein.
Same were thereafter sent by registered
post. Ultimately, service upon Appellant
was affected by way of substituted service
by getting publication made in a Daily
Newspaper 'Janwarta' in its Edition Dated
17.01.2008. Despite of aforesaid, Appellant
did not appear in the suit.

8. Plaintiff in order to prove his case
adduced himself as P.W.-1, Arvind
Kumar Chauhan as P.W.-2 and Akhilesh
Kumar Chauhan as P.W.-3. Vide list of
documents Paper No. 20Ga, Plaintiff filed
copy of charge sheet and F.I.R. pertaining
to Case No. 7751 of 2007 (State Vs. Ahok
Chauhan and others) under Section 302
I.P.C., P.S. Sarnath, District-Varanasi.

9. Court below proceeded to decide
suit filed by Plaintiff ex-parte as in the
4 All. Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan
23
opinion of Trial Court, in spite of service
of notice, Appellant failed to appear in
suit.

10. According to Court below,
Plaintiff filed suit for divorce on the
grounds of 'cruelty' and 'desertion', which
are recognized as grounds of divorce
under Sections 13 (1) (i-a) and 13(1) (i-b)
of Act, 1955. For ready reference Sections
13 (1) (i-a) and 13(1) (i-b) are reproduced
herein-under:

" 13. Divorce--(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband
or the wife, be dissolved by a decree of
divorce on the ground that the other party-
-

"(i-a)
has,
after
the
solemnization of the marriage, treated the
petitioner with cruelty;

(i-b) has deserted the petitioner
for a continuous period of not less than
two years immediately preceding the
presentation of the petitioner;"

11. It may be noted here that
marriage of parties was solemnized on
03.05.2005 and suit for divorce was filed
on 29.08.2007. Therefore, as per mandate
of Section 13(1) (i-b) of Act, 1955, a
period of two years must have preceded
on 29.08.2007. Trial Court concluded that
in para 10 of plaint, it has been pleaded
that Appellant alongwith her father and
brother came to her matrimonial house
when mother of Plaintiff was all alone at
home. In view of aforesaid, it cannot be
said that a period of two years have rolled
by immediately before presentation of
suit. As such, ground of desertion pleaded
by
Plaintiff
is
misconceived.
The
mandatory period required to have lapsed
for taking the plea of desertion is not
satisfied in the facts and circumstances of
the case. In respect of cruelty, Trial Court
concluded that in order to prove cruelty,
Plaintiff has got examined himself and
one Akhilesh Kumar Chauhan and also
filed
Documentary
evidence
i.e.
photocopy of F.I.R. and charge-sheet.
However, no evidence was adduced on
behalf
of
Appellant
contradicting
averments made in plaint. Consequently,
simply on the aforesaid ground, Court
below concluded that commission of
'cruelty' by Appellant upon Plaintiff is
proved and consequently, suit for divorce
filed by Plaintiff was decreed on the
ground of 'cruelty' vide judgement dated
8.5.2008 and decree dated 4.8.2008.

12. On coming to know of aforesaid
exparte judgement and decree Appellant
filed an application dated 03.10.2008
(Paper No.4Ga) under Order IX Rule 13
C.P.C. for recall of exparte judgement
dated 25.07.2017 and decree dated
23.08.2018 passed by Principal Judge,
Family Court, Varanasi. Since there was a
delay in filing recall application, an
application under 5 of Limitation Act was
also filed for condonation of delay in
filing recall application.

13. No objection was filed by
Plaintiff to delay condonation application
or recall application filed by Appellant.
Vide order dated 11.11.2011, Court below
allowed delay condonation application
(Paper No.6 ga) but ultimately rejected
recall application (Paper No. 4 Ga) vide
order dated 25.7.2017 and formal order
dated 23.8.2017.

14. A perusal of order dated
25.07.2017 will go to show that Court
below rejected the recall application filed
24 INDIAN LAW REPORTS ALLAHABAD SERIES
by appellant by recording a finding that
grounds shown by Appellant regarding
knowledge of ex-parte decree are not
believable. It was further observed that in
spite of service upon Appellant by
substituted
mode,
i.e., by
way
of
publication in Newspaper, she did not
appear and participate in proceedings, as
such there is no ground to allow recall
application filed by Appellant.

15. Feeling aggrieved by order dated
25.07.2017 and formal order dated
23.08.2017, Appellant has filed First
Appeal No. 737 of 2017 (Smt. Saroj
Singh Chauhan
Vs. Arvind Kumar
Chauhan) whereas First Appeal No. 672
of 2018 (Smt. Saroj Singh Chauhan Vs.
Arvind Kumar Chauhan) has been filed
challenging ex-parte judgement dated
08.05.2008 and decree dated 04.08.2008.

16. We have heard Mr. T.N. Tiwari,
learned
counsel
for
Appellant.
Challenging the judgement and decree as
well as order passed by Court below,
learned counsel for Appellant invited
attention of Court to original record of
court below. He submits that there is
nothing on record to show when summons
were issued and on which date, they were
refused to be received by Appellant.
There is no report of Process Server on
record proving aforesaid. He then submits
that on record there is only a receipt
issued by Postal Department but there is
no acknowledgment or endorsement by
postal Official available on record to
show that notices sent by Registered Post
were sought to be served upon Appellant
but she refused. He lastly submits that
publication has been made in Daily
Newspaper 'Janwarta' in its Edition Dated
17.01.2008, which is not having wide
circulation in District-Varanasi. He thus
submits that procedure adopted for
service upon Appellant is contrary to the
mandate of Order 5 Rules 12, 17, 18 and
20 C.P.C. Hence impugned judgement
and decree passed by Court below being
ex-parte against Appellant are liable to be
set aside by this Court.

17. Before proceeding to consider
correctness of submissions advanced by
learned Counsel for Appellant, it will be
appropriate to reproduce Order 5 Rules
12, 17, 18 and 20 of C.P.C. for ready
reference:

"12. Service to be on defendant
on person when practicable, or on his
agent--Wherever it is practicable service
shall be made on the defendant in person,
unless he has an agent empowered to
accept service, in which case service on
such agent shall be sufficient.

17. Procedure when defendant
refuses to accept service, or cannot he
found--Where the defendant or his agent
or such other person as aforesaid refuses
to sign the acknowledgement, or where
the serving officer, after using all due and
reasonable diligence, cannot find the
defendant, who is absent from his
residence at the time when service is
sought to be effected on him at his
residence and there is no likelihood of his
being found at the residence within a
reasonable time and there is no agent
empowered to accept service of the
summons on his behalf, nor any other
person on whom service can be made, the
serving officer shall affix a copy of the
summons on the outer door or some other
conspicuous part of the house in which
the defendant ordinarily resides or
carries on business or personally works
for gain, and shall then return the
original to the Court from which it was
4 All. Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan
25
issued, with a report endorsed thereon or
annexed thereto stating that he has so
affixed the copy, the circumstances under
which he did so, and the name and
address of the person (if any) by whom
the house was identified and in whose
presence the copy was affixed.

18. Endorsement of time and
manner of service--The serving officer
shall, in all cases in which the summons
has been served under rule 16, endorse or
annex, or cause to be endorsed or
annexed, on or to the original summons, a
return stating the time when and the
manner in which the summons was
served, and the name and address of the
person (if any) identifying the person
served and witnessing the delivery or
tender of the summons.

20.
Substituted
services--(1)
Where the Court is satisfied that there is
reason to believe that the defendant is
keeping out of the way for the purpose of
avoiding service, or that for any other
reason the summons cannot be served in
the ordinary way, the Court shall order
the summons to be served by affixing a
copy thereof in some conspicuous place in
the Court-house, and also upon some
conspicuous part of the house (if any) in
which the defendant is known to have last
resided or carried on business or
personally worked for gain, or in such
other manner as the Court thinks fit.

(1-A) Where the Court acting
under sub-rule (1) orders service by an
advertisement
in
a
newspaper,
the
newspaper shall be a daily newspaper
circulating in the locality in which the
defendant is last known to have actually
and voluntarily resided, carried on
business or personally worked for gain.

(2)
Effect
of
substituted
service-Service substituted by order of the
Court shall be as effectual as if it had
been made on the defendant personally.

(3) Where service substituted,
time for appearance to he fixed -Where
service is substituted by order of the
Court, the Court shall fix such time for
the appearance of the defendant as the
case may require."

18. We ourselves have examined
original record. Suit was presented on
31.08.2007 and summons were issued to
Appellant on 31.08.2007 itself. Summons
were returned on 17.11.2017, 'unserved'.
There is no report of Process Server on
record. On 27.11.2007, Court passed an
order that fresh steps be taken for service.
Steps were taken on 01.12.2007 for
service upon Appellant. On 07.01.2008,
an
application
(Paper
No.
11Ga)
alongwith affidavit (Paper No. 12 Ga)
was filed by Plaintiff for service of notice
on Appellant by Publication. On this
application, Court passed an order that
Steps be taken within a week. On
10.01.2018, Court passed an order that
notice be served upon Appellant by
Publication in Newspaper. Accordingly
Publication
was
made
in
Daily
Newspaper "Janwarta" in its Edition dated
17.01.2008. On record we also find a
receipt issued by Postal Department in
respect of registry sent to Saroj Singh
Chauhan, wherein her address was shown
as R/o Cantt. Varanasi. It may be noted
here that address of Appellant shown in
plaint of Matrimonial Petition is S 2/214
Rhitori Mahal, P.S. Cantt. DistrictVaranasi. There is nothing in order-sheet
to show that Court permitted Plaintiff to
serve
notices
upon
Appellant,
by
registered post.

19. When procedure adopted by
Court below for service upon Defendant-
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellant is examined in the light of
provisions contained in Order 5 Rules 12,
17, 18 and 20 of C.P.C, this Court finds
that there is no compliance of Order 5
Rule 17 C.P.C. Secondly, there is no
endorsement by Process Server in terms
of Order 5 Rule 18 C.P.C. nor Court
below has examined Process Server under
Order 5 Rule 19 C.P.C. Service of
summons by Registered Post which is
contemplated under Order 5 Rule 19A,
came to be omitted by Act 46 of 1999.
Therefore, no service by registered post
could be made. Lastly, Court below has
not complied with the mandate of Order 5
Rule 20 C.P.C. before directing service
upon Defendant-Appellant by way of
substituted service.

20. Having examined relevant
provisions of law in the light of facts of
the case, we are satisfied with the plea
taken by Appellant that no summons were
served upon her, prior to passing ex-parte
judgement and decree. We are also
satisfied that Court below did not record
its satisfaction that Publication has been
made in a Daily Newspaper, which has
vide circulation in the locality in which
Appellant resides. Lastly, this Court is not
unmindful of law laid down in Ramji
Dass and Others Vs. Mohan Singh, 1978
ARC 496 (SC), wherein Supreme Court
has observed that a judgement after
hearing parties is far far better than a
judgement which is ex-parte. For ready
reference, relevant observations made in
Ramji Dass (Supra) are quoted herein
under:

"An ex parte decree passed
eight years ago was set aside by the Court
which passed it and the order was
confirmed in revision by the District
Court. The High Court, in exercise of its
powers under Section 115 C.P.C, set
aside on various grounds. After having
heard counsel, we are inclined to the view
that, as far as possible, Courts' discretion
should be exercised in favour of hearing
and not to shut out hearing. Therefore, we
think that the order of the High Court
should not have been passed in the
interests of Justice which always informs
the power under S. 115 C.P.C. We,
therefore, set aside that order and also
the ex parte decree. We direct the trial
court to take back the suit on file and
proceed forthwith to trial. The suit is very
old and it should be disposed of within six
months from the receipt of this order by
the trial court. We further direct that as a
condition for setting aside the ex parte
decree, the appellants shall pay to the
respondent, within one month from today
a sum of Rs. 250/- by way of costs."

21. In view of discussion made
above, we have no hesitation to allow
these Appeals. Accordingly, both Appeals
are allowed. Judgement dated 25.07.2017
and formal order dated 23.08.2017
rejecting recall application filed by
Defendant-Appellant under Order IX Rule
13 C.P.C. and as well as Judgement and
Decree dated 08.05.2008 and 04.08.2008
decreeing suit of Plaintiff-Respondent exparte are set aside. Marriage Petition No.
565 of 2007 (Arvind Kumar Chauhan Vs.
Saroj
Singh
Chauhan)
is
restored.
Defendant-Appellant shall be permitted to
file her written statement and thereafter,
Court below shall proceed to decide the
marriage petition on merits afresh.

22. Appellant shall be entitled to her
costs, which we assess at Rs.50,000/-.
4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
27
Amount of cost shall be deposited by
Plaintiff-Respondent before Court below
by way of Bank Draft payable to
Defendant-Appellant. Aforesaid deposit
shall be made withing a period of two
months from today, failing which, Court
below shall proceed to recover the same
as a recovery under its own order.
----------

(2019)12 ILR A27
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2019

BEFORE
THE HON'BLE JAYANT BANERJI, J.

Second Appeal No. 881 of 2006

Hindustan Petroleum Corporation
 ...Appellant
Versus
Satish Chandra Jain & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Vikas Budhwar

Counsel for the Respondents:
Sri Vijay Singh, Sri H.P. Sahi, Sri Chandra
Prakash Yadav, Sri Sankalp Narain, Sri
Samarth Singh, Sri M.K. Gupta, Sri Pankaj
Agarwal

A. Civil Law - Civil Procedure Code (5 of
1908) - Order12 - Rule 6, Order 15 -Rule
5 - „Striking off defence‟ Vis-s-vis
„striking
out
of
the
pleadings‟
-
Difference - Effect on admissions made
in W.S. - Held - Even on striking off the
defence admissions made in the W.S.
could be looked into by the courts below

Striking off the defence would have the effect
of parties being not at issue - material facts
contained in the written statement would not
be considered as denial of the truth or validity
of the material facts contained in the plaint -
Striking off the defence as envisaged in Order
15 Rule 5 cannot be construed to mean as
striking out of the pleadings under Order 6
Rule 16 CPC - It is not as if on striking off the
defence, each and every statement made in
the written statement would be struck off
without reference to the fact whether a
particular statement is in defence or otherwise
- On striking off the defence, it is always open
for the Court to consider those statements of
the written statement other than in defence,
which may include admissions (Para 25 & 26)

B. Civil Law - Civil Procedure Code (5 of
1908) - Order 15, Rule 5 - Striking off
defence - Right of defendant - Held -
Post striking off the defence, defendant
has the right of cross examination of the
plaintiff's witnesses and of addressing
arguments on the basis of the plaintiff's
case - even though the defence of the
defendant is struck off, plaintiff enjoined
to plead and prove their case (Para 44)

C. Civil Law - Civil Procedure Code (5 of
1908) - Order 12, Rule 6- Order 15, Rule
5 - By a composite order the court could
not strike off the defence under Order
15, Rule 5 CPC & simultaneously decree
the suit either under Order 12, Rule 6
CPC or Order 15, Rule 1 -relying on
admission made in the written statement
for
Held - Order of the trial court simultaneously
decreeing the suit of the plaintiff on the basis
of the admission while striking off the defense
cannot be countenanced - trial court ought to
have permitted the counsel for the defendant
to address it on the issue of admission -
defendant ought to have opportunity to cross
examine the plaintiff's witnesses or to address
arguments post striking off its defence. (Para
16)

D. Civil Law - Civil Procedure Code (5 of
1908) - Order 15, Rule 5 - Striking off
defence for failure to deposit admitted
rent - admitted monthly rent was
deposited by the defendant-appellant in
the Court after lapse of more than a
week of its accrual and there was no
representation filed by defendant within
ten days as provided in clause (2) of
Order 15, Rule 5 -