N. Chaudhury, J.(Oral)

1. The judgment and decree dated 29.07.2004 is the subject matter of this first appeal. Defendants have preferred this appeal challenging ex-parte judgment and decree awarding compensatory decree of Rs.10,00,000/- against the defendants jointly and severally.

2. One Bhupen Borgohain, as plaintiff, instituted Money Suit No. 45/2002 in the court of Civil Judge (Sr. Divn.) at Sivasagar on 13.11.2002 stating that he comes of a very respectable family and that he is also a renowned person in view of his standing and activities, socially and personally. He is an engineer in the Oil India Ltd and is posted at Moran. While he was working in the civil engineering department, a news item was published by the defendants on 08.08.2002 in the Asomiya Pratidin which mentioned that Rs.5,00,000/- sanctioned for construction of road in Moran by the Oil India Limited has been misappropriated in the name of road construction. According to the plaintiff, this news was not based on fact and was defamatory in nature. It seriously lowered down the painstakingly earned reputation of the plaintiff and it fell on the life and character of the plaintiff and his family members. He started getting telephonic calls from the known persons, friends and reletives and also from members of various organisations enquiring and questioning him about correctness or otherwise of the report and consequently, he was badly embarrassed. The news item virtually projected the plaintiff as a corrupt person and all his good will and good performance in life stood washed away. The plaintiff, therefore, prayed for a decree of Rs.75,00,000/- including Rs.50,00,000/- for damages for defamation, Rs.20,00,000/- for damages for mental pain, metal agony and etc. and Rs.5,00,000/- to the damages for adversely affecting the plaintiff in other fields of his life.

3. As initially the defendants did not appear, the learned Court by order dated 21.12.2002 decided to proceed ex-parte against the defendants which, however, was subsequently vacated after the defendants appeared on the following date i.e. 13.02.2003 and asked time for written statement. On 13.02.2003 learned trial court allowed the prayer of adjournment and fixed 27.03.2003 for filing of written statement. On the fixed date, the defendants failed to submit the written statement and again prayed for time which was also allowed by the learned trial court and the case was fixed on 10.5.2003 for necessary orders. The case was placed before the trial court on 12.05.2003 and thereupon it was again fixed for filing of written statement by the defendants on 21.06.2003. The defendants once again filed application on that date asking for time to file written statement and the learned court allowed the prayer of the defendants fixing 21.07.2003 for submission of written statement. On the fixed date a fresh prayer for adjournment by the defendants was leniently viewed by the learned court granting him time and fixing 29.07.2003 for submission of written statement. On that date, the same exercise was renewed by the defendants and time was granted to the defendants fixing 30.08.2003 for submission of written statement. On 30.08.2003, defendants not only failed to submit written statement but also made prayer for time again and the learned court also allowed the prayer fixing the matter on 26.09.2003 for submission of written statement. Same story was repeated on 26.09.2003 and once again the prayer for adjournment was allowed fixing 13.11.2003 for submission of written statement. The date 13.11.2003 also witnessed the same event by renewal of prayer of adjournment by the defendants and the court allowed it fixing 17.12.2003 for the purpose. On 17.12.2003 defendants again prayed for time and 23.01.2004 was the date fixed for submission of written statement. On that date, defendant defaulted to submit the written statement and prayed for time again. The learned court allowed the prayer and fixed the suit for submission of written statement on 24.02.2004. On that day, prayer was made for adjournment as made earlier and the learned court allowed the same fixing 26.03.2004 for submission of written statement. More than a year had passed like this and the defendant played the role of cat and mouse with the plaintiff. Ultimately, on 26.03.2004 when again the prayer for adjournment came, this time the learned court did not oblige the defendants by allowing time for filing written statement and the prayer was rejected. Considering the adjournments granted earlier and leniency shown by the trial court towards the defendant, the rejection of prayer for submission of written statement on 26.03.2004 cannot be faulted. The learned court fixed 28.04.2004 for ex-parte hearing of the case. The defendants conspicuously remained absent in all subsequent days but this time the learned court without fixing the case for cross examination of PW 1 on the affidavit in chief submitted under Order 18, Rule 4 of C.P.C., straightway fixed the matter for orders on 06.05.2004. As the order was not ready on that day, the matter was deferred to 29.06.2004 and ultimately on that day also the matter was deferred to 29.07.2004 on which date in spite of giving a scope for cross examination of the PW 1 by the defendant, the learned court passed ex-parte judgment on 29.07.2004 decreeing the suit of the plaintiff for Rs.10,00,000/- towards damage and compensation. It is this judgment which has been brought under challenge in the present appeal.

4. I have heard Mr. P Kataki, learned counsel for the appellants and Mr. GN Sahewalla, learned senior counsel assisted by Ms. R Jain for the respondent.

5. While this Court is satisfied that action of the learned court in refusing further chance to the defendant for filing written statement on 26.03.2004 was justified, it has become difficult to accept the subsequent action of the learned trial court without affording any opportunity for cross examination to the defendant. It is established law that even in an ex-parte proceeding, the defendant is entitled to cross examine the witness of the plaintiff. The only thing is this, defendant is debarred from filing written statement and/or to examine his own witness. But that does not mean that in an ex-parte proceeding no scope for cross examination will be given. Even on the date of argument defendants are entitled to argue that on the basis of the materials available on record, plaintiff could or could not prove its case by Preponderance of Probability. The subsequent action of the learned trial court after 26.03.2004, therefore, appears to be irregular and contrary to the basic Principles of Natural Justice. Accordingly, judgment and decree dated 29.07.2004 is hereby set aside.

6. The matter is remanded to the learned trial court to resume trial from that stage where the case had been fixed for orders. Since it is a matter of 2002, the learned court shall take care to expeditiously dispose of the suit preferably within a period of 6 (six) months from the date of receipt of records. Parties shall appear before the learned trial court on 6th April, 2015 to receive necessary orders.

7. No order as to costs.

8. Interim order, if any, stands automatically vacated.