1. Suit for declaration of title and possession — Ex-parte decree passed — Application to set aside ex-parte decree under Order IX Rule 13, CPC — Restoration of suit. (Para 1 )
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2022 Supreme(SC) 462
SUPREME COURT OF INDIA
M. R. Shah, B.V. Nagarathna, JJ.
Sudhir Ranjan Patra (Dead) thr. LRs. & Anr. – Appellants
Versus
Himansu Sekhar Srichandan & Ors. – Respondents
Civil Appeal No. 3641 of 2022 with Civil Appeal No. 3642 of 2022
Decided On : 17-05-2022
Important Points
IMPORTANT POINT
Setting aside ex-parte decree – Once ex-parte decree is set aside and suit is restored to file, defendants cannot be relegated back to position prior to date of hearing of suit.
Setting aside ex-parte decree – Once ex-parte decree is set aside and suit is restored to file, defendants cannot be relegated back to position prior to date of hearing of suit.
Subject
Civil Law - Setting Aside Ex-Parte Decree
Act Referred
Headnote
Civil Procedure Code, 1908 – Order IX Rule 13 – Setting aside ex-parte decree – Once ex-parte decree is set aside and suit is restored to file, defendants cannot be relegated back to position prior to date of hearing of suit – In that case also, it should have been left to Trial Court to consider prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not – There was no order passed by Trial Court on specific prayer made by defendant Nos. 2 and 3 to allow them to file written statement – Trial Court while passing order condoned delay and set aside ex-parte decree and said order of condonation of delay and setting aside ex-parte decree was subject matter before High Court – Impugned judgment and order passed by High Court to the extent of observing that though ex-parte decree is set aside, defendant Nos. 2 and 3 cannot be permitted to file their written statement hereby quashed and set aside – Trial Court to consider prayer of defendant Nos. 2 and 3 whether to allow/permit them to file their written statement or not. (Paras 6 and 7)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 04.02.2022 passed by the High Court of Orissa at Cuttack in CMP No. 1423/2019, by which, though the High Court has confirmed the order passed by Trial Court setting aside the ex-parte decree in exercise of powers under Order IX Rule 13 of Code of Civil Procedure, High Court has observed and held that appellants herein – defendant Nos. 2 and 3 cannot be permitted to file their written statement, appellants herein – original defendant Nos. 1 to 3 have preferred present appeals.
Findings of Court:
Impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, shall have to be remanded to Trial Court.
Result : Appeals allowed.
Legal Category Hierarchy
Advocate Appeared:
For the parties :Vijay K. Jain, Suresh Chandra Tripathy, Shailja Kulshreshtha, Nitesh Bhandari, Prabhat Kumar Rai, Shourajeet Chakravarty, Aprajita Bhardwaj, Naveen Kumar, Advocates
For the parties :Vijay K. Jain, Suresh Chandra Tripathy, Shailja Kulshreshtha, Nitesh Bhandari, Prabhat Kumar Rai, Shourajeet Chakravarty, Aprajita Bhardwaj, Naveen Kumar, Advocates
Table of Contents
2. Whether defendants are barred from filing written statements upon restoration of a suit after an ex-parte decree is set aside under Order IX Rule 13, CPC. (Para 3 , 4 )
3. High Court's restriction on filing written statements was beyond the scope of the CMP as the Trial Court had not ruled on the specific prayer for permission. (Para 6 )
4. Where a prayer to file a written statement is specifically made in an application to set aside an ex-parte decree, the Trial Court must decide that prayer. (Para 6 )
5. High Court's order barring written statements quashed — Remanded to Trial Court to decide on the prayer to file written statement. (Para 7 )
6. Does setting aside an ex-parte decree automatically allow a defendant to file a written statement?
Generally, defendants cannot be relegated to the position prior to the date of hearing and are debarred from filing a written statement. However, if a specific prayer for permission to file was made and not decided by the Trial Court, the court must consider that prayer. (Para 6 )
7. Can a High Court impose restrictions on a party's rights that were not decided by the Trial Court in a challenge petition?
No. If the Trial Court did not pass an order on a specific prayer, and that prayer was not the subject of the challenge before the High Court, the High Court's observations on that matter are beyond the scope and ambit of the proceedings. (Para 6 )
8. What rights does a defendant retain in a suit if they are barred from filing a written statement after an ex-parte decree is set aside?
Even if debarred from filing a written statement, the defendant can still participate in the hearing of the suit by cross-examining the plaintiff's witnesses and addressing arguments. (Para 6 )
JUDGMENT :
M. R. Shah, J.
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 04.02.2022 passed by the High Court of Orissa at Cuttak in CMP No. 1423/2019, by which, though the High Court has confirmed the order passed by the learned Trial Court setting aside the ex-parte decree in exercise of powers under Order IX Rule 13 of Code of Civil Procedure (CPC), the High Court has observed and held that appellants herein - defendant Nos. 2 and 3 cannot be permitted to file their written statement the appellants herein - original defendant Nos. 1 to 3 have preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are as under: -
2.1 That respondent No. 1 herein - original plaintiff instituted a suit for declaration of his right, title, interest and possession over the suit schedule land being Civil Suit No. 1783/2011. The original plaintiff also prayed for a decree to declare that original defendant No. 2 has no authority to alienate the suit land and also to declare that the two registered sale deeds bearing Nos. 3530 and 3533 of 2000 are not binding on the plaintiff as well as proforma defendant Nos. 4 and 5. A relief of permanent injunction against original defendant Nos. 1 to 3 was also sought for. The appellants herein - original defendant Nos. 2 and 3 appeared in the suit on 20.03.20212 and filed a petition for time to file their written statement. However, in spite of several adjournments, they did not file written statement. That the appellants herein - original defendant Nos. 2 and 3 did not file their written statement. Thereafter, the issues were framed by the learned Trial Court. On 27.03.2017, the plaintiff filed their evidence in examination in chief by an affidavit. On 04.07.2017, when the suit was called on for hearing, appellants herein - original defendant Nos. 2 and 3 were absent and therefore, were set ex-parte. Thereafter, on behalf of the plaintiff, PW-1 came to be examined. The case was posted to 15.07.2017 for argument. On that date, original defendant Nos. 1 to 3 also filed an application for adjournment for which the suit was adjourned to 17.07.2017, on which date, the argument was heard and judgment was pronounced on 18.07.2017. The learned Trial Court passed an ex-parte decree.
Subsequently, the appellants herein - original defendant Nos. 2 and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC to set aside the ex-parte decree along with an application under Section 5 of the Limitation Act to condone the delay in filing the CMA. The appellants herein - original defendant Nos. 2 and 3 also prayed to allow the filing of written statement and to take up the suit on merits. By order dated 05.12.2019, the learned Trial Court allowed the CMA by condoning the delay.
2.2 Feeling aggrieved and dissatisfied with order dated 05.12.2019 passed by the learned Trial Court allowing CMA No. 31/2018, the original plaintiff - respondent No. 1 herein filed CMP No. 1423/2019 before the High Court. By the impugned judgment and order, though the High Court has confirmed the order passed by the learned Trial Court condoning the delay and setting aside the ex-parte decree, the High Court has also passed an order that on setting aside the ex-parte decree and consequently the suit being restored to file, defendant Nos. 2 and 3 cannot be permitted to file their written statement and that they can only take part in the hearing of the suit without propounding their own case. The High Court has also observed that they can advance their argument on the basis of the materials available on record only.
2.3 Feeling aggrieved with the judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement and that they can only take part in the hearing of the suit without propounding their own case, original defendant Nos. 1 to 3 - appellants herein have preferred the present appeals.
3. Learned counsel appearin
