Kanchhu vs Prakash Chand & Ors.

Held: Not sustainable – Period of seven years is sufficiently long and in light of the fact that decree of the trial court had been executed and impugned sale deed cancelled, respondents should have woken up from their slumber earlier – This delay itself would constitute sufficient reason for not condoning the delay in filing the application for recall of the order dismissing the writ petition as infructuous – Judge did not at all discuss what was the case set up by the respondents while seeking recall of the ex parte decree and what the defence of the appellant was in his written objection – Judge appears to have set aside the ex parte decree passed by the trial judge as if he were sitting in appeal and exercising appellate jurisdiction over such decree – In exercise of jurisdiction u/Art.227, the judge was required to examine whether the respondents had shown sufficient cause for staying away from the proceedings of the suit after filing their written statement – Judge barely considered the application u/Ord.IX r.13 filed by the respondents and, without even looking into the cause shown allowed the prayer for setting aside of the ex parte decree perceiving the judgment preceding it to be flawed on merits – Respondents never explained what was the real cause for the suit to proceed ex parte – Cause shown falls much short of an explanation and is nothing but a lame excuse – Trial court and appellate court assigned cogent reasons for not accepting the cause shown by the respondents – Not only vigilance and diligence on the part of the respondents are woefully lacking but such lack is glaringly apparent – Furthermore, since respondents did not cross-examine the appellant, whatever he deposed was believed and accepted – It cannot be understood how the judgment of the trial court could have been faulted and the decree set aside on the ground that the defence raised in the written statement was not considered while granting relief – Observations of the judge of the High Court cannot be accepted – It is flawed approach which has resurrected the dispute between the parties which was finally decided three decades back – High Court order being based on irrelevant, illogical and immaterial observations is clearly indefensible – Impugned order set aside. [Paras 8, 9, 11, 12, 14-17, 20, 21]

Code of Civil Procedure, 1908 – Civil suit – Rights of a defendant in a civil suit where defendant has been set ex-parte: Held: 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 – 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 – Limited right that the defendant, set ex parte, would have is confined to cross-examining the plaintiff’s witnesses – Effort has to be directed towards demonstrating that they are not speaking the truth and, thereby, demolish the case of the plaintiff – In such a case the defendant has to convince the court that the case put up by the plaintiff is so false that the court ought not to accept it. [Para 19]