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.

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