Code of Civil Procedure, 1908: Ord. IX r. 13 – Setting aside ex-parte decree – On facts, application u/Ord. IX r. 13 by the appellants seeking condonation of delay, setting aside of an exparte decree and also to allow them to file written statement and to take up the suit on merits – Trial court allowed the application by condoning the delay and set aside the ex-parte decree – In appeal, the High Court though upheld the order passed by the trial court, it held that the appellants cannot be permitted to file their written statement – On appeal, held: Once the ex-parte decree is set aside and the suit is restored to file, appellants cannot be relegated back to the position prior to the date of hearing of the suit – It should have been left to the trial court to consider the prayer of appellants whether to allow them to file written statement or not, which was also prayed in the application – There was no order passed by the trial court on the prayer made by the appellants to allow them to file written statement – Trial court condoned the delay and set aside the ex-parte decree and the said order of condonation of delay and setting aside the ex-parte decree was the subject matter before the High Court – Thus, the impugned judgment and order passed by the High Court that the appellants cannot be permitted to file their written statement is beyond the scope and ambit of the petition filed before the High Court, thus, unsustainable and is quashed and set aside – Issue whether appellants may be allowed to file their written statement or not, remanded to the trial court.
Allowing the appeals, the Court
HELD: 1.1 It is true that as per the law laid down by this Court in Sangram Singh’s case and Arjun Singh’s case when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex-parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments. In the instant case, by filing the CMA under Order IX Rule 13, appellants-original defendant Nos. 2 and 3 not only prayed to set aside the ex-parte decree but also prayed to allow them to file written statement. There was no order and/or decision by the trial court on the second prayer, namely, to allow defendant Nos.
2 and 3 to file written statement or not. Therefore, once the exparte decree is set aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the trial court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not, which was also prayed in the CMA. The trial court while passing order, condoned the delay and set aside the ex-parte decree and the said order of condonation of delay and setting aside the ex-parte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, would have to be remanded to the trial court. [Para 6][386-G-H; 387-A-F]
1.2 The impugned judgment and order passed by the High Court to the extent of observing that though the ex-parte decree is set aside, defendant Nos. 2 and 3 cannot be permitted to file their written statement is quashed and set aside. The trial court to consider the prayer of defendant Nos. 2 and 3 whether to allow/permit them to file their written statement or not, in accordance with law and on its own merits. [Para 7][387-G-H] Sangram Singh Vs. Election Tribunal, Kotah and
another AIR 1955 SC 425 : [1955] SCR 1; Arjun Singh Vs. Mohindra Kumar and others AIR 1964 SC 993 : [1964] SCR 946 – held partly inapplicable.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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