Even when a defense is struck off, the defendant is entitled to appear, cross-examine the plaintiff's witnesses, and submit that even on the basis of the evidence on behalf of the plaintiff, a decree cannot be passed against him.

Headnote:
ORDER IX RULE 13 CPC - APPLICATION FOR SETTING ASIDE EXPARTE DECREE - MAINTAINABILITY - EFFECT OF STRIKING OFF DEFENCE - CROSS-EXAMINATION OF PLAINTIFF'S WITNESSES - SUFFICIENT CAUSE FOR SETTING ASIDE EXPARTE DECREE.
Fact of the Case:

Defendant's revision against the dismissal of his application to set aside an ex parte decree passed against him in a suit for ejectment and recovery of rent. The defendant's defense was struck off for failure to deposit rent as required under Order 15, Rule 5 CPC. The defendant moved an application under Order IX Rule 13 CPC to set aside the ex parte decree, which was dismissed by the trial court and the lower revisional court.
Finding of the Court:

The court held that the application under Order IX Rule 13 CPC was maintainable even though the defendant's defense was struck off. The court further held that the defendant was entitled to cross-examine the plaintiff's witnesses and show that even on the basis of the evidence adduced by the plaintiff, he was not entitled to a decree. The court also found that sufficient cause was made out by the defendant for setting aside the ex parte decree.
Issues: 1. Whether the application under Order IX Rule 13 CPC was maintainable after the defendant's defense was struck off? 2. Whether the defendant was entitled to cross-examine the plaintiff's witnesses and show that even on the basis of the evidence adduced by the plaintiff, he was not entitled to a decree? 3. Whether sufficient cause was made out by the defendant for setting aside the ex parte decree?
Ratio Decidendi: 1. The court held that the application under Order IX Rule 13 CPC was maintainable even though the defendant's defense was struck off, relying on the Supreme Court decision in Paradise Industries Corporation v. K. P. Products, AIR 1976 SC 309, which held that even when a defense is struck off, the defendant is entitled to appear, cross-examine the plaintiff's witnesses, and submit that even on the basis of the evidence on behalf of the plaintiff, a decree cannot be passed against him. 2. The court held that the defendant was entitled to cross-examine the plaintiff's witnesses and show that even on the basis of the evidence adduced by the plaintiff, he was not entitled to a decree, relying on the Supreme Court decision in Sangram Singh v. Election Tribunal Kotab, AIR 1955 SC 425, which held that a Code of procedure should be construed to facilitate justice and further its ends, not as a penal enactment for punishment and penalties. 3. The court found that sufficient cause was made out by the defendant for setting aside the ex parte decree, as he had filed an affidavit alleging that he had come to court on the date of the hearing but had gone to call his counsel when the suit was taken up in his absence and decreed ex parte.
Final Decision: The court allowed the defendant's revision, vacated the orders passed by the trial court and the lower revisional court, and set aside the ex parte decree dated 2-5-1974 on payment of Rs. 25/- as costs to the plaintiff opposite party. The defendant was entitled to participate in the proceedings from the stage at which they were on 2-5-1974.

JUDGMENT

M. P. Saxena, J.

1. THIS is a defendant's revision under section 115, CPC against the judgment and order dated 17- 12-75 passed by the Second Additional District Judge, Gorakhpur.

2. BRIEFLY stated the facts giving rise to this revision application are that the plaintiff opposite party filed a suit in the court of the Munsif, Gorakhpur for ejectment of the defendant-revisionist from the premises in suit and for the recovery of arrears of rent. During the pendency of the suit the U. P. Civil Laws (Amendment) Act, 1972, came into force and the suit was transferred to the Small Cause Court on 27-2-1973. On 7-4-1973 the parties appeared before that Court and 16-5-1973 was fixed for final hearing. Under the amended Order 15, Rule 5, CPC the defendant was required to deposit the entire arrears of rent and damages admitted by him by the first hearing after the said amendment. The defendant failed to do so, and on 9-8-73 the plaintiff moved an application, 30 -C, for striking off his defence. 25-8-73 was fixed for its disposal. Ultimately it was taken up on 2-11-1973 when the written statement was struck off under Order 15 Rule 5 CPC and 18- 12-73 and thereafter 29-1-74 were fixed for hearing of the case. On the latter date the defendant applied for time to deposit rent. He was allowed to do so by 9-2-1974. Again he failed to deposit the rent and moved an application 32(C) for further extension of time. It was rejected on 9-2-74 and 21-3-74 was fixed for hearing. On 21-3-74 and 29-3-74 there was no Presiding Officer of the Court and the suit was taken up on 2-5-74 for ex- parte hearing. On this date the defendant remained absent. The plaintiff examined one witness and the suit was decreed ex-parte. On 6-5-1974 the defendant moved an application purporting to be under Order IX Rule 13, CPC for setting aside the ex-parte decree (38-C)' on the ground that when the case was called out he went to call his learned counsel but by the time he returned the suit was decreed exparte. He filed an affidavit also to support his contention. The plaintiff opposed it (vide 48-C) alleging that the defendant had not turned up on that date. The trial court dismissed it by the following order :-

"Heard parties' counsel and perused the affidavits. The defence of the appellant was struck off on 2-11-1973 in the suit and then the suit was proceeded with exparte and exparte decree was passed. In this view of the matter the application for setting aside the exparte decree is not maintainable. It is accordingly dismissed."

The defendant preferred a revision under section 25 of the Small Cause Court Act and the learned lower Revisional Court rejected it by observing ;-

"Failure to deposit such rent was visited by a penal consequence, namely, the court was given a discretion either to refuse to entertain any defence or as the case may be, strike off the defence... ......I do not think the .defendant could be permitted to take part in further proceedings after his defence was struck off. Strictly speaking, it was not an exparte decree. The mere fact that the court wrote that the suit was decreed exparte in the judgment is immaterial. Even if it was an exparte decree I do not think an application under Order IX Rule 13 CPC was maintainable."

At another place he observed :-

"When the defence is struck off the defendant is debarred from setting up his case. He cannot prove his case even bv cross-examining the plaintiff and his witnesses."

As both the learned lower courts were of opinion that the application under order IX Rule 13 CPC was legally not maintainable, they did not go into the merit of the question whether sufficient ground for setting aside the exparte decree was made out or not.

3. THE defendant has now come up in revision to this Court.

4. THE first point for consideration is whether the application under Order IX rule 13 CPC was maintainable. For this purpose it is necessary to enquire whether the decree passed by the trial court on 2-5-74 was un

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Judicial Analysis

1976 Supreme(All) 173

HIGH COURT OF ALLAHABAD M.P. SAXENA, J. Raghubir - Appellant VersusDevendra Kumar Arora - Respondent C. Rev. No. 2304 of 1975, C. R. No. 294 of 1974 Decided on : May 05, 1976

Even when a defense is struck off, the defendant is entitled to appear, cross-examine the plaintiff's witnesses, and submit that even on the basis of the evidence on behalf of the plaintiff, a decree cannot be passed against him.

Judicial Analysis

HIGH COURT OF ALLAHABAD
M.P. SAXENA, J.
Raghubir - Appellant
Versus
Devendra Kumar Arora - Respondent
C. Rev. No. 2304 of 1975, C. R. No. 294 of 1974
Decided on : May 05, 1976