SUDHIR RANJAN PATRA (DEAD) THR. LRS. & ANR. versus HIMANSU SEKHAR SRICHANDAN & ORS. on 17 May 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 04.02.2022 passed by the High Court of Orissa at Cuttakin CMP No. 1423/2019, by which, though the High Court has confirmedthe order passed by the learned Trial Court setting aside the ex-partedecree in exercise of powers under Order IX Rule 13 of Code of CivilProcedure (CPC), the High Court has observed and held that appellantsherein – defendant Nos. 2 and 3 cannot be permitted to file their writtenstatement, the appellants herein – original defendant Nos. 1 to 3 havepreferred the present appeals.

2. The facts leading to the present appeals in a nutshell are asunder: - 2.1 That respondent No. 1 herein – original plaintiff instituted asuit for declaration of his right, title, interest and possession over the suitschedule land being Civil Suit No. 1783/2011. The original plaintiff alsoprayed for a decree to declare that original defendant No. 2 has noauthority to alienate the suit land and also to declare that the two registeredsale deeds bearing Nos. 3530 and 3533 of 2000 are not binding on theplaintiff as well as proforma defendant Nos. 4 and 5. A relief of permanentinjunction against original defendant Nos. 1 to 3 was also sought for.The appellants herein – original defendant Nos. 2 and 3 appeared in the A

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Asuit on 20.03.20212 and filed a petition for time to file their writtenstatement. However, in spite of several adjournments, they did not filewritten statement. That the appellants herein – original defendant Nos.2 and 3 did not file their written statement. Thereafter, the issues wereframed by the learned Trial Court. On 27.03.2017, the plaintiff filed theirevidence in examination in chief by an affidavit. On 04.07.2017, whenBthe suit was called on for hearing, appellants herein – original defendantNos. 2 and 3 were absent and therefore, were set ex-parte. Thereafter,on behalf of the plaintiff, PW-1 came to be examined. The case wasposted to 15.07.2017 for argument. On that date, original defendant Nos.1 to 3 also filed an application for adjournment for which the suit wasCadjourned to 17.07.2017, on which date, the argument was heard andjudgment was pronounced on 18.07.2017. The learned Trial Court passedan ex-parte decree.

Subsequently, the appellants herein – original defendant Nos. 2and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC to setDaside the ex-parte decree along with an application under Section 5 ofthe Limitation Act to condone the delay in filing the CMA. The appellantsherein – original defendant Nos. 2 and 3 also prayed to allow the filing ofwritten statement and to take up the suit on merits. By order dated05.12.2019, the learned Trial Court allowed the CMA by condoning thedelay.E

2.2 Feeling aggrieved and dissatisfied with order dated 05.12.2019passed by the learned Trial Court allowing CMA No. 31/2018, the originalplaintiff – respondent No. 1 herein filed CMP No. 1423/2019 before theHigh Court. By the impugned judgment and order, though the High Courthas confirmed the order passed by the learned Trial Court condoning theFdelay and setting aside the ex-parte decree, the High Court has alsopassed an order that on setting aside the ex-parte decree and consequentlythe suit being restored to file, defendant Nos. 2 and 3 cannot be permittedto file their written statement and that they can only take part in thehearing of the suit without propounding their own case. The High CourtGhas also observed that they can advance their argument on the basis ofthe materials available on record only.

2.3 Feeling aggrieved with the judgment and order passed by theHigh Court to the extent of observing that defendant Nos. 2 and 3 cannotbe permitted to file their written statement and that they can only takeHpart in the hearing of the suit without propounding their own case, original defendant Nos. 1 to 3 – appellants herein have preferred the presentappeals.

3. Learned counsel appearing on behalf of the appellants herein –original defendant Nos. 2 and 3 has vehemently submitted that in thefacts and circumstances of the case the High Court has committed agrave error in passing the order that appellants herein - defendant Nos.2 and 3 cannot be permitted to file their written statement.

3.1 It is vehemently submitted that once the suit was restored tofile by setting aside the ex-parte decree which has been upheld by theHigh Court, thereafter, it was not open for the High Court to pass afurther order that on setting aside the ex-parte decree and restoring thesuit to file, defendant Nos. 2 and 3 cannot be permitted to file theirwritten statement.

3.2 It is submitted that what was challenged before the High Courtwas the order passed by the learned Trial Court condoning the delay andsetting aside the ex-parte decree. It is submitted that therefore, theimpugned order passed by the High Court observing that defendant Nos.2 and 3 cannot be permitted to file their written statement is beyond thescope and ambit of CMP filed before the High Court.

3.3 It is submitted that once the suit was restored to file by settingaside the ex-parte decree and no order was passed by the learned TrialCourt on whether the written statement be permitted to be taken onrecord or not, the High Court ought not to have observed anything on thesame and ought to have left it to the learned Trial Court.

3.4 It is submitted that in the present case no order was passed bythe learned Trial Court on whether the written statement be taken onrecord or not, the decisions relied upon by the High Court in the case ofSangram Singh Vs. Election Tribunal, Kotah and another; AIR1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others;AIR 1964 SC 993 shall not be applicable to the facts of the case onhand.

4. Present appeals are vehemently opposed by Shri NiteshBhandari, learned counsel appearing on behalf of respondent No. 1 herein– original plaintiff.

4.1 It is submitted that despite the fact that a number ofopportunities were given to defendant Nos. 2 and 3 to file their written AB

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Astatement between 2012 to 2017 (till the ex-parte decree was passed).Hence, the High Court was justified in passing the impugned order byobserving that defendant Nos. 2 and 3 cannot be permitted to file theirwritten statement on setting aside the ex-parte decree.

4.2 It is submitted that as held by this Court in the case of SangramBSingh (supra) and Arjun Singh (supra) when an ex-parte decree is setaside and the suit is restored to file, the defendants cannot be relegatedback to the position prior to the date of hearing of the suit and he wouldbe debarred from filing any written statement in the suit. It is submittedthat therefore, the impugned order passed by the High Court is absolutelyin consonance with the law laid down by this Court in the case ofCSangram Singh (supra) and Arjun Singh (supra).5. We have heard learned counsel appearing on behalf of therespective parties at length.

6. At the outset it is required to be noted that when the appellantsD– original defendant Nos. 2 and 3 filed CMA No. 31/2018 under OrderIX Rule 13 of CPC they prayed to condone the delay as well as to setaside the ex-parte decree and also to allow filing of the written statementand to take up the suit on merits. By order dated 05.12.2019, the learnedTrial Court allowed CMA No. 31/2018 and condoned the delay and setaside the ex-parte decree subject to cost of Rs. 25,000/- each to be paidEto the plaintiff. From order dated 05.12.2019, it does not appear that anyfurther order was passed by the learned Trial Court on whether by settingaside the ex-parte decree, defendant Nos. 2 and 3 may be permitted tofile written statement or not. The order passed by the learned Trial Courtcondoning the delay and setting aside the ex-parte decree has beenFconfirmed by the High Court by passing the impugned judgment andorder. However, the High Court has observed that on setting aside theex-parte decree and restoring the suit to file, defendant Nos. 2 and 3cannot be permitted to file the written statement. Reliance is placedupon the decisions of this Court in the case of Sangram Singh (supra)and Arjun Singh (supra). However, it is true that as per the law laidGdown by this Court in the case of Sangram Singh (supra) and ArjunSingh (supra) when an ex-parte decree is set aside and the suit is restoredto file, the defendants cannot be relegated to the position prior to thedate of hearing of the suit when he was placed ex-parte. He would bedebarred from filing any written statement in the suit, but then he canHparticipate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff and address arguments. However, in our view, in thefacts and circumstances of the case, the decisions of this Court in thecase of Sangram Singh (supra) and Arjun Singh (supra) shall not befully applicable. In the present case by filing the CMA under Order IXRule 13, appellants herein – original defendant Nos. 2 and 3 not onlyprayed to set aside the ex-parte decree but also prayed to allow them tofile written statement. As observed above, there was no order and/ordecision by the learned Trial Court on the second prayer, namely, toallow defendant Nos. 2 and 3 to file written statement or not. Therefore,once the ex-parte decree is set aside and the suit is restored to file andeven as per the decisions of this Court in the case of Sangram Singh(supra) and Arjun Singh (supra) the defendants cannot be relegatedback to the position prior to the date of hearing of the suit in that casealso, it should have been left to the learned Trial Court to consider theprayer of defendant Nos. 2 and 3 whether to allow them to file writtenstatement or not, which was also prayed in CMA No. 31/2018.

As observed hereinabove, there was no order passed by thelearned Trial Court on the specific prayer made by defendant Nos. 2and 3 to allow them to file written statement. The learned Trial Courtwhile passing order dated 05.12.2019 condoned the delay and set asidethe ex-parte decree and the said order of condonation of delay and settingaside the ex-parte decree was the subject matter before the High Court.Therefore, the further observations made by the High Court thatdefendant Nos. 2 and 3 cannot be permitted to file their written statementcan be said to be beyond the scope and ambit of the CMP filed beforethe High Court. Under the circumstances, the impugned judgment andorder passed by the High Court to the extent of observing that defendantNos. 2 and 3 cannot be permitted to file their written statement isunsustainable and the issue/question whether defendant Nos. 2 and 3may be allowed to file their written statement or not, shall have to beremanded to the learned Trial Court.

7. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court to the extent ofobserving that though the ex-parte decree is set aside, defendant Nos. 2and 3 cannot be permitted to file their written statement is hereby quashedand set aside. The learned Trial Court to consider the prayer of defendantNos. 2 and 3 whether to allow/permit them to file their written statementor not and as and when such question/issue is considered by the learned AB

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ATrial Court, it will be open for respondent No. 1 – original plaintiff toresist the same and the learned Trial Court to consider the question/issue whether on setting aside the ex-parte decree, defendant Nos. 2and 3 may be allowed/permitted to file their written statement, inaccordance with law and on its own merits for which we have notexpressed anything in favour of either party. The learned Trial Court toBconsider the issue/question with respect to the prayer of defendant Nos.2 and 3 to allow them to file their written statement within a period ofthree months from the first date of hearing of the suit, which shall bewithin a period of one month from today. The present appeals are allowedto the aforesaid extent. In the facts of the case, there shall be no orderCas to costs.

Nidhi Jain

Appeals allowed.

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