SC reiterates On setting aside ex-parte decree parties shall be put to the same position as they were at the time when the ex-parte decree was passed

 

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Supreme Court of India was dealing with the petition challenging the judgment and order dated 16.05.2018 passed by the HighCourt of Orissa at Cuttack by whichthe High Court has observed and held that mere setting asidethe ex-partejudgment and decree wouldserve no purpose asthe defendants cannot lead evidence in the absence of writtenstatement filed by them and consequently setting aside theorder passed by the First Appellate Court.

 

Brief Facts:

The respondent no.1 instituted the suit for declarationand title. The appellants moved an impleadment application in the suit which wasallowed. The application was allowed. The appellants sought time to file the written statement on various dates.However, they failed to file the written statement even afteravailing several opportunities. The original defendants also remained absent on number of dates. Therefore,neither did they file the written statement in the suit nor didthey appear before the learned Trial Court. Thereafter thelearned Trial Court passed an ex-partejudgment and decree. In the above circumstances, defendants filed the application under Order IX Rule 13 of theCPC to set aside the ex-partejudgment and decree. Thelearned Trial Court dismissed the said application and refusedto set aside the ex-partejudgment and decree. Hencedefendants preferred the appeal before the FirstAppellate Court. The First Appellate Court allowed the saidappeal. Feeling aggrieved and dissatisfied with the order passed by theFirst Appellate Court the plaintifffiled the present petition under Articles 226 and 227 of theConstitution of India before the High Court. The High Court has set aside the orderpassed by the First Appellate Court setting aside the ex-partejudgment and decree.

SC’s Observations:

After hearing both the sides SC observed thatat this stage it is required to be noted that as such theFirst Appellate Court gave specific findings while setting asidethe ex-partejudgment and decree that the defendant nos. 2 &3 have made out a sufficient cause for setting aside the ex-partejudgment and decree. But while passing the impugnedjudgment and order the High Court has not at all dealt withand considered the findings recorded by the First AppellateCourt, recorded while setting aside ex-partejudgment anddecree.

SCstated that the High Court has set aside the order passed by theFirst Appellate Court solely on the ground that as thedefendant nos. 2 & 3 did not file the written statement andcontested the suit, the reopening of the suit would becomefutile.

SC relied upon the case of Sangram Singh versus Election Tribunalwhere it was observed that,on setting aside the ex-partedecree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the ex-parte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross examine the witnesses.

SC stated that the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the ex-parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross examine the witnesses. 

SC Held:

After evaluating submissions made by both the parties the SC held that“the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside ex-parte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the exparte judgment and decree on merits.In view of the above and for the reason stated above the impugned judgment and order passed by the High Court ishereby set aside.”

Case Title: Nanda Dulal Pradhan &Anr. v. Dibakar Pradhan &Anr.

Bench: J. M. R. Shah and J. B.V. Nagarathna

Citation: CIVIL APPEAL NO. 4151 of 2022

Decided on: 11^th July, 2022 

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