Courts Cannot Prepone Date Of Hearing Without Giving Notice To Other Party : Supreme Court

In a recent case, the Supreme Court deprecated the practice of preponing the date of hearing without giving an opportunity of hearing to the defendant.

It was a case where the trial court proceeded ex-parte against the defendant on April 22, 2002, and fixed a date for ex-parte hearing on 30th May 2002. However, an application was made by the plaintiff to strike out the defence of the defendants on May 03, and on the same day, the court passed an order in favor of the plaintiff for striking out the defendants' defence without giving an opportunity of hearing to the defendant.

The defendant thereafter filed an application for setting aside the 3rd May 2002 order by which their defence was struck out. The application proceeds on the allegation that on 3rd May 2002, the Court proceeded to strike out the defendants' defence without giving them an opportunity of being heard and the hearing was conducted ex parte.

Taking objection to the defendant's application, the plaintiff argued that as the suit was directed to proceed ex parte, there was no occasion to give an intimation to the defendants or their counsel that the application would be taken up on 3rd May 2002.

Rejecting the plaintiff's argument, the bench comprising Justices Abhay S. Oka, Ahsanuddin Amanullah, and Augustine George Masih observed that an error was committed to not providing an opportunity of hearing to the defendants while deciding an application for striking out their defence.

“As the suit was fixed on 30th May, 2002, the defendants were entitled to a notice that the suit would be taken up on an earlier date for hearing the application for striking out the defence. When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside.”, the court said.

Passing Of Ex-Parte Order Against Defendant Would Not Preclude Him From Cross-Examining Plaintiff To Disprove Plaintiff's Case

An application was filed by the defendant for setting aside the ex-parte order. It was contended by the defendants that they were present on April 22, 2002, when the ex-parte order was passed against them but they were under the impression that the matter would not be taken up due to the unavailability of the Judge.

In response to the plaintiff's contention that the defendant's version regarding the unavailability of the judge was mischievous, the court said that the defendant may lose the right to file a written statement when a suit is proceeded ex-parte against him but nothing precludes him from cross-examining the plaintiff to prove the falsity of the plaintiff's case.

“At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit is ordered to proceed ex parte against him, the limited defence available to the defendant is not foreclosed. A defendant can always cross-examine the witnesses examined by the plaintiff to prove the falsity of the plaintiff's case. A defendant can always urge, based on the plaint and the evidence of the plaintiff, that the suit was barred by a statute such as the law of limitation.”, the court said.

Conclusion

“Now, the clear picture which emerges is that the suit was decreed ex parte without giving proper opportunity to the defendants to defend themselves. On 22nd April 2002, when the order directing that the suit would proceed ex parte was passed, the date fixed for ex parte hearing was 30th May 2002. On that date, the defendants could have appeared and applied for setting aside the said order. The Court could have always favourably considered that application by putting the defendants to conditions. However, without waiting till 30th May, 2002, on 3rd May 2002, without issuing notice to the defendants, the suit was taken up by the Trial Court, and an order of striking out the defendants' defence was passed, obviously, without hearing the defendants. Therefore, an illegality has been associated with the conduct of the suit proceedings and the manner in which the ex parte decree was passed. Consequently, we propose to set aside the orders dated 22nd April, 2002 and 3rd May, 2002 and relegate the suit to that stage.”, the court observed.

Case Title: RANJIT SINGH & ANR VERSUS STATE OF UTTARAKHAND & ORS.

Citation : 2024 LiveLaw (SC) 737

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