Defendant Set Ex-Parte Has Limited Rights, Can't Expect Court to Consider Written Statement on Merits: Supreme Court

Supreme Court Sets Aside High Court Order Resurrecting 33-Year-Old Decree, Cites "Flawed Approach" and "Misconception of Law"

New Delhi: In a sharp rebuke to the Allahabad High Court, the Supreme Court has set aside an order that had revived a 33-year-old property dispute, emphasizing that a defendant who is set ex-parte cannot expect the court to consider their written statement on merits as if they had contested the suit. A bench led by Justice DipankarDatta held that an ex-parte defendant's rights are curtailed, being primarily limited to cross-examining the plaintiff's witnesses to demolish their case.

The Court overturned the High Court's "indefensible" judgment, criticizing its "flawed approach" and "clear misconception of the legal position," which had erroneously set aside a long-settled ex-parte decree from 1991.

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Background of the Decades-Long Dispute

The case originates from a civil suit filed in 1987 by the appellant against his brothers (the respondents) to cancel a sale deed for a piece of land, alleging fraud. After filing their written statement, the respondents repeatedly sought adjournments and eventually stopped participating in the proceedings.

• 1991: The trial court set the respondents ex-parte on April 24, 1991, and subsequently passed an ex-parte decree on August 17, 1991, cancelling the sale deed.
• 1991-2002: The respondents' application to set aside this decree under Order IX Rule 13 of the Civil Procedure Code ( CPC ) was dismissed by the trial court and later by the appellate court in 2002. Both courts found that the respondents failed to provide "sufficient cause" for their prolonged absence, noting their non-appearance began months before the claimed illness of one of the respondents.
• 2024: The matter reached the Allahabad High Court, which, in a surprising turn, set aside the 1991 ex-parte decree. The High Court judge reasoned that the trial court erred by not considering the defense raised in the respondents' written statement while passing the ex-parte judgment.

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Supreme Court's Analysis: A Rebuke on Law and Procedure

The Supreme Court, hearing the appeal against the High Court's order, found the High Court's reasoning to be fundamentally flawed. Justice Datta , writing for the bench, pointed out several critical errors in the High Court's approach.

1. Ignoring the Core Issue of "Sufficient Cause": The Supreme Court noted that the High Court, exercising its supervisory jurisdiction under Article 227, was required to examine whether the lower courts had erred in finding that the respondents had not shown "sufficient cause" for their absence. Instead, the High Court completely bypassed this crucial question.

2. Misunderstanding the Rights of an Ex-Parte Defendant: The bench expressed "a great sense of disappointment" with the High Court's view that the trial court should have considered the written statement of the non-appearing defendants. The Supreme Court clarified the correct legal position:

> "Once the pleadings are complete but the defendant is set ex-parte and such order has attained finality, the defendant’s rights suffer a curtailment. He cannot produce evidence in defence and hence statements, which are in the nature of factual assertions, cannot be proved by leading evidence. Generally speaking, the limited right that the defendant, set ex-parte, would have is confined to cross-examining the plaintiff’s witnesses."

The Court stated it was "left to wonder" how the High Court could fault the trial court's judgment on the grounds that the written statement was not considered.

3. Lack of Vigilance and Diligence: The judgment highlighted the respondents' glaring lack of diligence throughout the litigation, from their initial failure to contest the suit, which led to the ex-parte decree in 1991, to the extraordinary delay of over six years in seeking the recall of their writ petition dismissed in 2011.

The Court observed:

> "It is truism that vigilance and diligence go hand-in-hand, making them two sides of the same coin, when it comes to pursuing/defending a legal action. In this case, not only vigilance and diligence on the part of the respondents are woefully lacking but such lack is glaringly apparent."

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Final Decision

Concluding that the High Court's order was based on "irrelevant, illogical and immaterial observations," the Supreme Court allowed the appeal. It set aside the impugned High Court order dated May 1, 2024, and upheld the 2002 appellate court decision, which had confirmed the dismissal of the respondents' application to set aside the ex-parte decree.

With this ruling, the writ petition filed by the respondents stands dismissed, and the original ex-parte decree from 1991 is effectively reinstated, bringing a final resolution to the three-decade-old dispute.