Mansimran Kaur

New Delhi, May 18, 2022: The Supreme Court has held that once the ex-parte 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, however, it should be left to the Trial Court to consider the prayer of defendants whether to allow them to file written statement or not.

A Division Bench of Justice M.R. Shah and Justice B.V. Nagarathna observed that the High Court exceeded its jurisdiction by restraining the appellants from filing the written statements and thus allowed the preset appeal instituted by the appellants against the order passed by the High Court of Orissa whereby the High Court restricted the appellants to file the written statements when as an ex-parte decree was passed against the appellants. 

Facts of the case were such that the original plaintiff instituted a suit for declaration of his right, title and possession over the suit schedule land. The original plaintiff also prayed for a decree to declare that original defendant has no authority to alienate the suit land and registered sale deeds   are   not   binding   on   the   plaintiff   as   well   as   fourth and fifth proforma defendants. Thereafter, the appellants instituted a petition to file the written statement; however the appellants did not file the same. Consequently, the Trial Court passed an ex- parte decree.

Thereafter, the appellants filed application under Order IX Rule 13 of CPC to set aside the ex-parte decree along with the application under Section 5 of the Limitation Act to condone the delay in filling the application. It was further prayed that they should be allowed to file the written statement and to consider the suit on its merits. The Trial Court allowed the application by condoning the delay and when this order was assailed by the appellants before the High Court, the High Court restrained the appellants to file their written statements and they were further directed to submit their contentions only with respect to the materials available on record. Hence, this appeal was filed.

The Apex Court opined that the order passed by the Trial Court was limited to condonation of delay and of setting aside the ex-parte decree. The same was confirmed by the High Court, however by setting aside the ex-parte decree and restoring the suit to file, the appellants were not permitted to file the written statements. In view of the same observation, the Top Court opined that the defendants cannot be relegated to the position prior to the date of hearing of the suit when an ex-parte decree was passed. They can participate in the hearing of the suit and can cross-examine the witness of the plaintiff and address arguments, Court noted. 

However, the Court also observed that Trial Court was silent on the prayer of filling the written statement and the High Court while confirming the order of the Trial Court made extra observations concerning filing of the written statement and the same appeared to be beyond scope and ambit of the petition filed before the High Court. It was further observed that the aforesaid issue should have been remanded to the Trial Court.

Thus, the Bench quashed and set aside the the impugned judgment and order passed by the High Court to the extent that the ex-parte decree is set aside and the appellants cannot be permitted to file the written statements.

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