Defendant set ex parte may cross-examine witnesses to challenge the plaintiff's case but cannot assert factual defenses or participate fully.

Mr. P. K. Mukherjee, Sr. adv, Mr. Debanik Banerjee, Mr. Hazaifa Shahid ……for the Opp. Parties. 1. Learned Senior Counsel for the petitioner submits that the plaintiff no.2/opposite party no.1, Ms. Indira Ghosh has died and the learned Trial Court vide order dated May 19, 2025, has, inter alia, held that suit against Ms. Indira Ghosh stood abated.

2. In the circumstances, let the name of the opposite party be deleted from the cause title.

3. Leave is granted to learned Advocate on record for the petitioner to amend the cause title.

4. The present petition has been filed challenging the order dated 4.5.2022, 11.5.2022 and 14.06.22. The facts in brief as canvassed by learned Senior Counsel for the petitioner is that a suit was filed by the opposite parties against the petitioner herein. In the said suit, the defendant/petitioner after filing the written statement was proceeded ex parte by the learned Trial Court vide order dated 06.12.2018.

5. This order was challenged before this Court in C.O. 3670 of 2019 unsuccessfully. The review application filed against this order also met the same fate. The SLP filed before the Apex Court also got rejected. Thus, the ex parte order against the petitioner/defendant stood affirmed till the Apex Court.

6. The grievances of the learned Counsel for the petitioner now is that the petitioner has been denied the right of cross examination by the learned Trial Court vide order dated 4.5.2022. Learned Counsel submits that further vide order dated 11.05.2022, the learned Trial Court preponed the date of hearing.

7. Learned Senior Counsel submits that by order dated 11.05.2022, the learned Trial Court allowed the amendment petition filed by the plaintiff without serving the copy of the same upon the petitioner/defendant.

8. Learned Senior Counsel further submits that the learned Trial Court further vide order dated 14.06.2022 rejected the petition filed by the petitioner/defendant for participating in the proceedings. Thus, the grievances as raised by learned Senior Counsel is that the learned Trial Court has not only denied the petitioner/defendant to cross examine the opposite party witness but also refused the right of the petitioner/defendant to participate in the proceedings.

9. Learned Counsel for the opposite parties has vehemently opposed the petition. Learned Counsel submits that since the ex parte order against the petitioner/defendant stood affirmed till the Apex Court, the present petition is liable to be rejected.

10. The Court has considered the submissions. Recently the Apex Court in Kanchhu Vs Prakash Chand & Others reported in 2025 SCC Online SC 868 while entertaining a petition, inter alia, held as under:

“19. Pleadings, either in a plaint or a written statement, constitute the plinth on which the respective claims and defence of the parties to a civil suit rest. What a pleading ought to contain is provided in Order VI Rule 2, CPC. Only material facts, on which the party pleading relies for his claim or defence to succeed, have to be stated without the evidence by which the pleading is to be proved. Once the pleadings are complete but the defendant is set ex parte, and such order has attained finality, the defendant’s rights suffer a curtailment. He cannot produce evidence in defence and hence statements, which are in the nature of factual assertions, cannot be proved by leading evidence. Generally speaking, the limited right that the defendant, set ex parte, would have is confined to cross examining the plaintiff’s witnesses. The effort has to be directed