When an ex parte decree is set aside and the suit is restored to file, the defendants cannot file a written statement but can participate in the hearing of the suit.

JUDGMENT :

Akshaya Kumar Rath, J.

1. The instant petition under Article 227 of the Constitution of India is to lacinate the order dated 29.03.2008 passed by the learned 1st Addl. Civil Judge (Senior Division), Bhubaneswar in M.S. No. 107/39 of 2007/1998 whereby and whereunder the learned trial court struck off the written statement filed by the defendants-petitioners.

2. Opposite party No. 1 as plaintiff instituted a suit for realisation of Rs. 83,104/- impleading the present petitioners as defendants in the court of the learned 1st Addl. Civil Judge (Senior Division), Bhubaneswar, which is registered as M.S. No. 107/39 of 2007/1998. The defendants were set ex parte. The ex parte decree was passed on 1.2.2002. An application under Order 9 Rule 13 CPC was filed to set aside the ex parte decree. Learned trial court by order dated 29.3.2008 allowed the application, set aside the ex parte decree and restored the suit to file. After the suit was restored to file, defendants filed the written statement. The plaintiff filed a petition to strike off the written statement. By order dated 29.3.2008, the learned trial court struck off the written statement.

3. Heard learned Addl. Government Advocate for the petitioner and Mr. R.C. Sarangi, learned counsel for the opposite parties.

4. The seminal point that hinges for consideration is as to whether when the ex parte decree is set aside, defendants can be relegated to the earlier position prior to the date of hearing of the suit?

5. In Sangram Singh v. Election Tribunal Kotah and another, AIR 1955 SC 425, the apex court in para-33 of the report held as follows:

"….. if the defendant does not appear at the first hearing, the Court can proceed 'ex parte', which means that it can proceed without a written statement; and O. 9, R. 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences entailed by O. 8, R. 10 must be suffered."

6. The same view was echoed in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993.

7. In Surendra Mohapatra v. Annapurna Mohapatra, AIR 1969 Orissa 261, the question arose as to whether the trial court was justified in rejecting the prayer to set aside the ex parte decree when the defendant failed to make out sufficient cause for setting aside the previous order setting him ex parte, but established sufficient cause for his absence on the date when the ex parte hearing of the suit was taken up. Taking a cue from Arjun Singh (supra), this Court held that even if the defendant failed to make out sufficient cause for setting aside the previous order setting him ex parte, but established sufficient cause for his absence on the date when the ex parte hearing of the suit was taken up, the ex parte decree could be set aside. The only difference from the normal course in such a situation would be that he would be debarred from filing any written statement in the suit, but cannot be prevented to proceed in the hearing of the suit, cross-examine the witness examined on behalf of the plaintiff and examine the witness from his side. The same view was reiterated in V. Kameswar Rao v. B. Nageswar Rao, 1987 (II) OLR 106 and Harish Chandra Panda and others v. Satyanarayan Panda and others, 88 (1999) CLT 420.

8. Thus the logical sequitur of the analysis made in the preceding paragraph is that when an ex parte decree is set aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to the date of hearing of the suit. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff, adduce evidence and address argument.

9. In the result, the petition fails. Ac