NANDA DULAL PRADHAN & ANR. versus DIBAKAR PRADHAN & ANR.

NANDA DULAL PRADHAN & ANR.

DIBAKAR PRADHAN & ANR.

(Civil Appeal No. 4151 of 2022)

JULY 11, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Civil Procedure Code, 1908 – Or. IX r. 13 – Setting aside ex-parte decree – Permission to participate in suit proceedings andcross-examine witnesses in absence of written statement – FirstAppellate Court allowed defendant nos.2 and 3 to adduce evidenceapart from setting aside ex–parte judgment against them – HighCourt held that mere setting aside the ex-parte judgment and decreewould serve no purpose as the defendants cannot lead evidence inthe absence of written statement filed by them and consequentlysetting aside the order passed by the First Appellate Court – Held:In the case of Sangram Singh, the Supreme Court held that on settingaside the ex-parte decree and on restoration of the suit the partiesto the suit shall be put to the same position as they were at the timewhen the ex-parte judgment and decree was passed and thedefendants may not be permitted to file the written statement as nowritten statement was filed – However, at the same time they can bepermitted to participate in the suit proceedings and cross-examinethe witnesses – In that view of the matter the impugned judgmentand order passed by the High Court is unsustainable and set aside.

Sangram Singh v. Election Tribunal AIR 1955 SC 425

: [1955] SCR 1 – relied on.

Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 :[1964] SCR 946 – referred to.

Case Law Reference

[1955] SCR 1relied onPara 3[1964] SCR 946referred toPara 3

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4151of 2022.

[2022] 7 S.C.R.

AFrom the Judgment and Order dated 16.05.2018 of the High Courtof Orissa at Cuttack in C.M.P. No. 324 of 2018.

Sibo Sankar Mishra, Rajesh Kumar Nayak, Niranjan Sahu, V. K.Mishra, Advs. for the Appellants.

Gautam Das, Manoj Kumar, Binod Kumar, Dhirendra Ku. Jha,BTarun Kant Samantray, Abdhut Kumar Jena, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentCand order dated 16.05.2018 passed by the High Court of Orissa at Cuttackin C.M.P. No.324 of 2018 by which the High Court has observed andheld that mere setting aside the ex-parte judgment and decree wouldserve no purpose as the defendants cannot lead evidence in the absenceof written statement filed by them and consequently setting aside theDorder passed by the First Appellate Court who allowed the appellantsherein – original defendant nos. 2 and 3 to adduce the evidence apartfrom setting aside ex-parte judgment and decree, the original defendantnos. 2 & 3 have preferred the present appeal.

2. That the respondent no.1 herein – original plaintiff instituted

the suit in the Court of learned Civil Judge (Junior Division), JaleswarEbeing TS No.317 of 2003, for declaration and title. The appellants –original defendant nos. 2 & 3 moved an impleadment application in thesuit which was allowed. That thereafter the application under Order IRule 10 of the CPC was allowed on 20.02.2004. The learned Trial Courtfixed the next date as 27.02.2004 for filing the written statement. TheFappellants herein – original defendant nos. 2 & 3 (hereinafter referredto as “original defendant nos. 2 & 3”) sought time to file the writtenstatement on various dates. However, they failed to file the writtenstatement even after availing several opportunities. The original defendantnos. 2 & 3 also remained absent on number of dates. Therefore, neitherdid they file the written statement in the suit nor did they appear beforeGthe learned Trial Court. Thereafter the learned Trial Court passed anex-parte judgment and decree dated 31.08.2004. In the abovecircumstances, defendant nos. 2 & 3 filed the application under OrderIX Rule 13 of the CPC to set aside the ex-parte judgment and decree.The learned Trial Court dismissed the said application and refused to setHaside the ex-parte judgment and decree. Hence defendant nos. 2 & 3

preferred the appeal before the First Appellate Court. The First AppellateCourt allowed the said appeal by setting aside the order passed by thelearned Trial Court dismissing the application to set aside the ex-partejudgment and decree. The First Appellate Court also passed an order torestore the suit to file and thereafter to dispose of the suit after affordingsufficient opportunity to the parties to adduce their respective evidenceand rebuttal evidence. Feeling aggrieved and dissatisfied with the orderpassed by the First Appellate Court in allowing the appeal and settingaside the ex-parte judgment and decree and the order directing that thematter be disposed of afresh in accordance with law after affordingadequate opportunity to the parties to adduce their respective evidenceand rebuttal evidence, the original plaintiff filed the present petition underArticles 226 and 227 of the Constitution of India before the High Court.By the impugned judgment and order and without considering and/orobserving anything on the findings recorded by the First Appellate Courton whether there was sufficient cause made out to set aside the ex-parte judgment and decree, the High Court has set aside the order passedby the First Appellate Court setting aside the ex-parte judgment anddecree solely on the ground that as no written statement was filed onbehalf of the defendant nos. 2 & 3 the reopening of the suit would becomefutile. Thereby the High Court has set aside the order passed by theFirst Appellate Court setting aside the ex-parte judgment and decree.

2.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original defendant nos. 2 & 3have preferred the present appeal.

3. Having heard learned counsel for the respective parties andconsidering the order passed by the First Appellate Court setting asidethe ex-parte judgment and decree and observing that on restoration ofthe suit the same be disposed of after affording opportunities to theparties to adduce their respective evidence and rebuttal evidence, thesame was absolutely in consonance with the law laid down by this Courtin the case of Sangram Singh versus Election Tribunal, AIR 1955SC 425 and Arjun Singh versus Mohindra Kumar, AIR 1964 SC993.

3.1 At this stage it is required to be noted that as such the FirstAppellate Court gave specific findings while setting aside the ex-partejudgment and decree that the defendant nos. 2 & 3 have made out asufficient cause for setting aside the ex-parte judgment and decree. But

Awhile passing the impugned judgment and order the High Court has notat all dealt with and considered the findings recorded by the FirstAppellate Court, recorded while setting aside ex-parte judgment anddecree. The High Court has set aside the order passed by the FirstAppellate Court solely on the ground that as the defendant nos. 2 & 3did not file the written statement and contested the suit, the reopening ofBthe suit would become futile. However, as observed and held by thisCourt in the case of Sangram Singh (supra) on setting aside the ex-parte decree and on restoration of the suit the parties to the suit shall beput to the same position as they were at the time when the ex-partejudgment and decree was passed and the defendants may not be permittedCto file the written statement as no written statement was filed. However,at the same time they can be permitted to participate in the suit proceedingsand cross-examine the witnesses. In that view of the matter the impugnedjudgment and order passed by the High Court is unsustainable. Still, onsetting aside the ex-parte judgment and decree, though the defendants

who had not filed the written statement, can be permitted to participateDin the suit and cross-examine the witnesses. Therefore, the High Courtis not right in observing that as no written statement was filed by thedefendants, the reopening of the suit by setting aside ex-parte judgmentand decree will become futile. As observed hereinabove the High Courthas not at all observed anything on the correctness of the order passedEby the First Appellate Court setting aside the ex-parte judgment anddecree on merits.

4. In view of the above and for the reason stated above theimpugned judgment and order passed by the High Court is hereby setaside. The order passed by the First Appellate Court setting aside theFex-parte judgment and decree and restoring the suit is hereby restored.However, it is observed that on restoration of the suit, the defendantnos. 2 & 3 shall not be permitted to file the written statement, as thoughnumber of opportunities were given earlier, they did not file the writtenstatement. However, at the same time they may be permitted to participate

in the suit and cross-examine the witnesses and make submissions onGmerits. Present appeal is partly allowed to the aforesaid extent. However,in the facts and circumstances of the case there shall be no order as tocosts.

Ankit Gyan

H(Assisted by : Rahul Rathi, LCRA)

Partly allowed.