On Setting Aside Ex Parte Decree, Defendants Who Have Not Filed Written Statement Can Be Permitted To Cross Examine Witnesses: Supreme Court

The Supreme Court observed that on setting aside the ex­parte decree, the defendants can be permitted to participate in the suit proceedings and cross­-examine the witnesses.

In this case, the defendants were set ex parte by the Trial Court. Their application under Order IX Rule 13 was also dismissed by the Trial Court. The First Appellate Court allowed the appeal filed by defendants and set aside the ex­parte judgment and decree observing that on restoration of the suit the same be disposed of after affording opportunities to the parties to adduce their respective evidence and rebuttal evidence. Allowing the petition filed by the plaintiff, the Orissa High Court set aside the order passed by the First Appellate Court solely on the ground that as the defendants did not file the written statement and contested the suit, the reopening of the suit would become futile.

In appeal, the Apex Court bench noted that the order passed by the First Appellate Court  was in consonance with the law laid down by this Court in the case of Sangram Singh versus Election Tribunal, AIR 1955 SC 425 and Arjun Singh versus Mohindra Kumar, AIR 1964 SC 993. Referring to these judgments, the court allowed the appeal, and observed:

"As observed and held by this Court in the case of Sangram Singh (supra) on setting aside the ex­parte decree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the ex­parte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross­examine the witnesses. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the ex­parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross­examine the witnesses. Therefore, the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside ex­parte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the ex­parte judgment and decree on merits."

Case details

Nanda Dulal Pradhan vs Dibakar Pradhan | 2022 LiveLaw (SC) 579 |  CA 4151 of 2022 | 11 July 2022

Coram: Justices MR Shah and BV Nagarathna

Headnotes

Code of Civil Procedure, 1908 ; Order IX Rule 13 - On setting aside the ex­parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross­examine the witnesses - Sangram Singh vs Election Tribunal, AIR 1955 SC 425. (Para 3.1)

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