Once an exparte decree has been set-aside, the respondent should be given the opportunity to contest the suit and file a written statement, and the interest of the opposite party can be protected by awarding costs.

Ranjit Singh, J.

1. Respondent-defendant suffered an exparte decree dated 1.8.2003. He filed an application under Order 9 Rule 13 CPC for setting-aside of the said exparte decree, which was allowed by the Court on 25.10.2005 subject to the condition of furnishing bank guarantee by the respondent-defendant for a sum of Rs. 8 lacs. This order has been complied with and a bank guarantee of Rs. 8 lacs is duly renewed upto 15.2.2007. In fact, the defence of the respondent- defendant had also been struck off on 7.8.2002, which he inadvertently could not challenge while seeking setting-aside of the exparte decree granted on 1.8.2003, as referred to above. This order accordingly was standing in the way of the respondent-defendant even after setting-aside of the exparte decree. The respondent- defendant, as such, filed an application under Section 151 CPC for setting-aside/recall of the order dated 7.8.2002, so as to allow them to file a written statement.

2. The respondent had been allowed to intervene in the proceedings of the suit on or after 7.8.2002. This was impugned by the respondent-defendant by filing a Revision Petition No. 6939 of 2005. This Court, however, observed that in the absence of challenge to the order dated 7.8.2002, it would not be appropriate to allow the respondent-defendant to file written statement at this stage. This Court, however, gave liberty to the respondent-defendant through its order dated 15.9.2006 to seek appropriate remedy so as to enable it to file written statement. Accordingly, respondent- defendant filed an application before the trial Court for recalling/setting-aside of the order dated 7.8.2002.

3. This application was opposed by the present petitioner. It is rightly submitted on behalf of the respondent-defendant that setting-aside of exparte decree without permitting them to file a written statement would be meaningless for them and may lead to suit being rendered infructuous. The trial Court has accordingly allowed this application by observing that exparte decree has already been set-aside on 25.10.2005 and opportunity is required to be given to the respondent-defendant to file written statement. While setting- aside the exparte decree, it was observed by the Court that the parties should not be thrown out on technical ground and no party should be condemned unheard. It is further observed that interest of the opposite party can be protected by awarding costs. This order is challenged by the petitioner through the present revision petition.

4. I have heard learned Counsel for the parties. Once the exparte decree has been set-aside by the Court, then the respondent has rightly been given chance to contest the suit. The order, setting-aside the exparte decree, would be rendered meaningless if the respondent is not allowed to file the written statement on the ground that its defence was struck off on 7.8.2002. This Court had given a liberty to the respondent to move an application before the trial Court for recall of the order dated 7.8.2002, especially due to observations made in order dated 16.5.2006 wherein it was observed that the respondent had not challenged the order dated 7.8.2002 and it would not be appropriate for this Court to allow him to file written statement.

5. Learned Counsel for the petitioner mainly submits that the respondent can not be allowed to seek recall of the order passed in the year 2002. The fact that ex parte order has been set-aside subject to condition of furnishing bank guarantee to the tune of Rs. 8 lacs can not be ignored. It can also not be ignored that the order setting-aside exparte decree would be meaningless in case the respondent is not allowed to contest the suit and file written statement. Accordingly, I do not find any infirmity in exercise of jurisdiction by the trial Court in recalling the order dated 7.8.2002. The respondent has been asked to pay the costs of Rs. 1,000/- to compensate the petitioner. It would be appropriate to put the res