IMPORTANT POINT
Ex-parte proceeding – Even if a defendant does not file a written statement and suit is ordered to proceed ex-parte against him, limited defence available to defendant is not foreclosed.

JUDGMENT :

ABHAY S OKA, J.

CIVIL APPEAL NOS.2399-2401/2023

1. The appellants are the defendants in a suit filed by the first respondent and one Shanti Devi, who is no more and has been shown as the third respondent in these Appeals. For convenience, we are referring to the parties with reference to their status in the suit. We have heard the learned counsel for the parties.

2. The suit was filed on 8th November, 2001 for possession of the property, more particularly described in the schedule (suit property). The allegation in the suit is that the first defendant, the State of Uttaranchal (now Uttarakhand), was a tenant of the plaintiffs in respect of the suit property at a monthly rent of Rs.86,232/- (Rupees Eighty-six Thousand Two Hundred and Thirtytwo), which was fixed by an order dated 18th May, 1999 passed by the learned 3rd Additional District Judge, Dehradun. The allegation is that though the rent was fixed with effect from 1st September, 1993, the first defendant did not pay the rent. Therefore, the plaintiffs issued a notice of termination of tenancy under Section 106 of the Transfer of Property Act, 1882. As the defendants failed to comply with the said notice, the suit for eviction was filed.

3. It appears from the record of the Trial Court that after the service of summons on the defendants, they appeared and applied for adjournments for filing the written statement. The first such application was made on 13th December 2001. Subsequent applications were made for adjournments. On 22nd April 2002, the learned trial Judge did not accede to the prayer for grant of further time and passed an order that the suit would proceed ex parte and a date for ex parte hearing, i.e., 30th May 2002, was fixed. At this stage, we may also note that the plaintiffs also made an application to strike out the defence of the defendants. The said application was filed on 18th February 2002. On the said application, the Advocate for the plaintiffs made an endorsement in the margin that as there was no advocate representing the defendants, a copy of the application was attached to the application. Though the date for the ex parte hearing was already fixed as 30th May 2002, on 3rd May 2002, the plaintiffs made an application to the Trial Court for passing an order on the application dated 18th February 2002 for striking out the defendants' defence. Interestingly, on the same day, the plaintiffs moved another application stating that the plaintiffs may be permitted to lead their ex parte evidence through affidavits. It appears that on 3rd May, 2002, the Trial Court allowed the application for striking out the defence. Subsequent facts narrated in this judgment would show that the suit was taken on the cause list on that day without any notice to the defendants.

4. On 16th May, 2002, an application was moved by the defendants for setting aside the order dated 22nd April, 2002. In the application, the averments were made that on 22nd April, 2002, the District Judge before whom the suit was pending, was holding a Camp Court at Mussoorie. We may note that the suit was pending in the Court at Dehradun. The contention in the said application was that as the learned District Judge was unavailable, the defendants were under the impression that the suit would not proceed. In fact, in the affidavit filed in support of the said application by one Mukesh Kumar Malik on behalf of the Superintendent of Police, Dehradun, it is stated that he was present on 22nd April 2002 till 4:00 p.m., but the case was not called out. On 30th May, 2002, the application for setting aside the order directing the suit to proceed ex parte was rejected. At this stage, we may note here that in the proceedings of 22nd April 2002, it was recorded that on that day, the lawyers had abstained from the Court work, and the learned Presiding Judge was on a tour of Mussoorie for holding a camp. There is no mention in the proceedings of 22nd April, 2002 that any in charge Judicial Officer passed