Order IX Rule 13 CPC - Trial Court Can Decide Prayer Of Defendants To Permit Filing Of Written Statement After Setting Aside Ex Parte Decree: Supreme Court

The Supreme Court observed when an ex ­parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex ­parte.

The bench comprising Justices M R Shah and B V Nagarathna, in this case, observed that a Trial Court can consider whether on setting aside the ex­parte decree, defendants' prayer to permit them to file their written statement can be allowed?

In this case, the defendants who were set ex parte in a suit, filed an application under Order IX Rule 13 of CPC to set aside the ex­parte decree and also prayed to allow the filing of written statement. The Trial Court allowed the said application setting aside the ex parte decree. While disposing the petition challenging this order, the High Court, though upheld the Trial Court order, held that the defendants cannot be permitted to file their written statement and that they can only take part in the hearing of the suit without propounding their own case.

Before the Apex Court, the appellants- defendants contended that once the suit was restored to file by setting aside the ex­parte decree and no order was passed by the Trial Court on whether the written statement be permitted to be taken on record or not, the High Court ought not to have observed anything on the same and ought to have left it to the Trial Court. The respondents - plaintiffs relied on Sangram Singh Vs. Election Tribunal, Kotah and another; AIR 1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others; AIR 1964 SC 993 to contend that when an ex­parte 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 and he would be debarred from filing any written statement in the suit. 

Referring to the above judgments, the court noted thus:

"It is true that as per the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex­parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex­parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments."

The court, however, noted that, in the facts and circumstances of the case, these decisions the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable.

"There was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the ex­parte decree is set aside and the suit is restored to file and even as per the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) the defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not, which was also prayed in CMA No. 31/2018."

The court therefore directed the Trial Court to consider the issue with respect to the prayer of defendants to allow them to file their written statement.

Case details

Sudhir Ranjan Patra (D) vs Himansu Sekhar Srichandan | 2022 LiveLaw (SC) 492 | CA 3641 OF 2022 | 17 May 2022

Coram: Justices M R Shah and B V Nagarathna

Headnotes

Code of Civil Procedure, 1908 ; Order IX Rule 13 - When an ex­parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex­parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments. [Referred to Sangram Singh Vs. Election Tribunal, Kotah and another AIR 1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others AIR 1964 SC 993 ] (Para 6)

Summary - Appeal against judgment of High Court that affirmed the Trial Court order setting aside the ex parte decree but held that the defendants cannot be permitted to file their written statement - Allowed - It should have been left to the Trial Court to consider the prayer of defendants whether to allow them to file written statement or not.

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