Order IX Rule 13 CPC | Defendant Can Only Take Part In Hearing After Ex-Parte Decree Against It Is Set Aside, Can't File Written Statement: Orissa HC

"…when an 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. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff, adduce evidence and address argument."

Brief Facts:

The Petitioner sought for declaration of his right, title, interest and possession over the suit schedule land as well as for a decree to declare that Defendant No. 1 has no authority to alienate the suit land.

The Defendant Nos. 2 and 3 entered appearance and sought time to file their written statement. However, in spite of several adjournments, they did not file a written statement. Finally, the matter proceeded ex parte and decree was drawn.

Subsequently, the Defendants Nos. 2 and 3 filed an application under Order IX Rule 13 for setting aside the aforesaid ex parte decree along with an application for condonation of delay. The Senior Civil Judge, after taking into consideration the circumstances explained by the parties, condoned the delay and set aside the ex parte decree. The same was challenged in this petition.

Contentions on behalf of the Petitioner:

For the petitioner, it was submitted that the limitation for filing an application under Order IX Rule 13, CPC is governed under Article 123 of the Limitation Act, which provides two modes for determining the starting point of limitation. The first is when the summons is not duly served on the Defendant. The second one is, if summon is duly served, then the Defendant has to show sufficient cause to the satisfaction of the Court for his nonappearance on the date when the suit was called on for hearing.

It was argued that in the instant case, Defendant Nos. 2 and 3 had entered appearance in the suit through their Advocate and in spite of several adjournments, did not file their written statement. Thus, they fall under the second contingency.

It was submitted that no explanation having been offered by Defendants No. 2 and 3 for their non-appearance on the date when the suit was called on for hearing, the learned Senior Civil Judge has committed gross error in allowing the application under Order IX Rule 13.

It was put-forth that while exercising power under Order IX Rule 13 CPC, the Trial Court is expected to exercise its discretion judiciously. The Court while exercising its discretion cannot brush aside the mandatory requirements under the provision. In the instant case, the Senior Civil Judge neither considered the demeanor of the party seeking such relief nor discussed about the requirements of law while passing the impugned order.

Lastly, relying upon the ratio in the case of State of Orissa & Anr. v. Smt. Sitanjali Jena, (2016) 121 CLT 492, it was submitted that on setting aside an ex parte decree though the suit is restored to file, but the Defendants cannot be relegated back to the position prior to the date of hearing of the suit. They would be debarred from filing written statement. Therefore, even if the Court comes to a conclusion that the discretion exercised by learned Senior Civil Judge is legal and justified, still then the Defendant Nos. 2 and 3 cannot be permitted to file written statement and propound their own case in the suit. In view of the above, he prayed for setting aside the impugned order.

Contentions on behalf of the Respondents:

The counsel on behalf of the opposite parties contended that 'sufficient cause' under the Limitation Act has to be construed on the touchstone of pragmatic parameters as laid down in Nakul Swain v. Jogendra Das, 1996 (I) OLR 534. The expression 'sufficient cause' must receive 'liberal construction' so as to advance substantial justice, as laid down in the case of GMG Engineering Industries and Others v. ISSA Green Power Solution and Ors., (2015) 15 SCC 659.

Further, he argued that the law of limitation is founded on public policy. Rules of limitation are not meant to destroy the rights of the parties available under law as held by the Apex Court in N. Balakrishnan v. M. Krishnamuthy, (1998) 7 SCC 123. There may be some lapses on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him.

Thus, when Senior Civil Judge has discussed the evidence available on record and found sufficient cause for condoning the delay in filing application under Order IX Rule 13 and set aside the ex parte decree, the High Court in the exercise of supervisory jurisdiction under Article 227 should not re-assess the same and substitute the finding of learned Senior Civil Judge by its own.

Decision of the Court:

The Court held that Order IX Rule 13 provides that if the Court is satisfied that either the summons was not duly served on the Defendant or that the Defendant was prevented by sufficient cause from appearing in the Court when the suit was called on for hearing, the Court shall make an order for setting aside the decree as against him on such terms as to cost as it thinks fit.

Thus, the provision essentially provides two contingencies under which an ex parte decree can be set aside. The first contingency is when the summons is not duly served on the Defendant. The second one is, if summon is duly served, then the Defendant has to show sufficient cause to the satisfaction of the Court for his non-appearance on the date when the suit was called on for hearing. In the instant case, the situation falls under the second category.

On scrutiny of materials available on record, it brings out a clear picture that Defendant Nos. 2 and 3 on getting information of the ex parte decree, immediately took step for setting aside the same. The material available on record of course suggests that there are certain latches on the part of learned counsel to whom Defendant Nos. 2 and 3 entrusted the case. But while relying upon the observation made in Rafiq v. Munshilal, (1988) 2 SCC 388, the Court held that an innocent party may not be allowed to suffer injustice only because of the fault of his counsel.

Stressing upon 'lack of knowledge' as a ground for condonation, the Court observed,

"Another aspect is clear from scrutiny of materials on record that Defendant Nos. 2 and 3 had no knowledge of the ex parte decree till 4th January, 2018 when they were informed by Mr. Mohapatra, learned counsel engaged by them. Lack of knowledge is also a sufficient cause for condonation of delay. Due to lack of knowledge of the ex parte decree, the Defendant Nos. 2 and 3 could not take steps to set aside the same within the statutory period. Explanation of sufficient cause for non-appearance of Defendant Nos.2 and 3 on the date when the suit was called on for hearing is also because of lack of knowledge. In my view lack of knowledge having been established prepondering the probabilities, this Court is of the considered opinion that Defendant Nos. 2 and 3 have shown sufficient cause for their non-appearance on the date when the suit was called for hearing."

Consequently, the Court concluded that on a close reading of the impugned order, it appears that learned Senior Civil Judge has made his best endeavour and discussed the matter in detail with reference to materials available on record to set aside the ex parte decree. Hence, no interference is warranted with regard to setting aside the ex parte decree.

However, it was clarified that the Defendant Nos. 2 and 3 cannot be permitted to file their written statement. They can only take part in the hearing of the suit without propounding their own case. However, they can advance their argument on the basis of the materials available on record only. For arriving to this conclusion, the Court relied on Sangram Singh v. Election Tribunal, Kotah & Anr., AIR 1955 SC 425 and Arjun Singh v. Mohindra Kumar and Ors., AIR 1964 SC 993, as cited in Sitanjali Jena (supra).

Details of the Judgment

Case Title: Himansu Sekhar Srichandan v. Sudhir Ranjan Patra (since dead) Jully Patra & Ors.

Citation: 2022 LiveLaw (Ori) 12

Case No: CMP No. 1423 of 2019

Date of Judgment: 4^th February 2022

Coram: Justice K.R. Mohapatra

Citation: 2022 LiveLaw (Ori) 12

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