Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4151 of 2022
Nanda Dulal Pradhan & Anr. ...Appellants
Versus
Dibakar Pradhan & Anr. ...Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 16.05.2018 passed by the High
Court of Orissa at Cuttack in C.M.P. No.324 of 2018 by which
the High Court has observed and held that mere setting aside
the exparte judgment and decree would serve no purpose as
the defendants cannot lead evidence in the absence of written
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.07.11
17:11:58 IST
Reason:
statement filed by them and consequently setting aside the
order passed by the First Appellate Court who allowed the
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appellants herein – original defendant nos. 2 and 3 to adduce
the evidence apart from setting aside exparte judgment and
decree, the original defendant nos. 2 & 3 have preferred the
present appeal.
2. That the respondent no.1 herein – original plaintiff
instituted the suit in the Court of learned Civil Judge (Junior
Division), Jaleswar being TS No.317 of 2003, for declaration
and title. The appellants – original defendant nos. 2 & 3
moved an impleadment application in the suit which was
allowed. That thereafter the application under Order I Rule
10 of the CPC was allowed on 20.02.2004. The learned Trial
Court fixed the next date as 27.02.2004 for filing the written
statement. The appellants herein – original defendant nos. 2
& 3 (hereinafter referred to as “original defendant nos. 2 & 3”)
sought time to file the written statement on various dates.
However, they failed to file the written statement even after
availing several opportunities. The original defendant nos. 2
& 3 also remained absent on number of dates. Therefore,
neither did they file the written statement in the suit nor did
they appear before the learned Trial Court. Thereafter the
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learned Trial Court passed an exparte judgment and decree
dated 31.08.2004. In the above circumstances, defendant
nos. 2 & 3 filed the application under Order IX Rule 13 of the
CPC to set aside the exparte judgment and decree. The
learned Trial Court dismissed the said application and refused
to set aside the exparte judgment and decree. Hence
defendant nos. 2 & 3 preferred the appeal before the First
Appellate Court. The First Appellate Court allowed the said
appeal by setting aside the order passed by the learned Trial
Court dismissing the application to set aside the exparte
judgment and decree. The First Appellate Court also passed
an order to restore the suit to file and thereafter to dispose of
the suit after affording sufficient opportunity to the parties to
adduce their respective evidence and rebuttal evidence.
Feeling aggrieved and dissatisfied with the order passed by the
First Appellate Court in allowing the appeal and setting aside
the exparte judgment and decree and the order directing that
the matter be disposed of afresh in accordance with law after
affording adequate opportunity to the parties to adduce their
respective evidence and rebuttal evidence, the original plaintiff
filed the present petition under Articles 226 and 227 of the
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Constitution of India before the High Court. By the impugned
judgment and order and without considering and/or
observing anything on the findings recorded by the First
Appellate Court on whether there was a sufficient cause made
out to set aside the exparte judgment and decree, the High
Court has set aside the order passed by the First Appellate
Court setting aside the exparte judgment and decree solely
on the ground that as no written statement was filed on behalf
of the defendant nos. 2 & 3 the reopening of the suit would
become futile. Thereby the High Court has set aside the order
passed by the First Appellate Court setting aside the exparte
judgment and decree.
2.1 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
defendant nos. 2 & 3 have preferred the present appeal.
3. Having heard learned counsel for the respective parties
and considering the order passed by the First Appellate Court
setting aside the exparte judgment and decree and observing
that on restoration of the suit the same be disposed of after
affording opportunities to the parties to adduce their
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respective evidence and rebuttal evidence, the same was
absolutely 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.
3.1 At this stage it is required to be noted that as such the
First Appellate Court gave specific findings while setting aside
the exparte judgment and decree that the defendant nos. 2 &
3 have made out a sufficient cause for setting aside the ex
parte judgment and decree. But while passing the impugned
judgment and order the High Court has not at all dealt with
and considered the findings recorded by the First Appellate
Court, recorded while setting aside exparte judgment and
decree. The High Court has set aside the order passed by the
First Appellate Court solely on the ground that as the
defendant nos. 2 & 3 did not file the written statement and
contested the suit, the reopening of the suit would become
futile. However, as observed and held by this Court in the
case of on setting aside the exparte
Sangram Singh (supra)
decree and on restoration of the suit the parties to the suit
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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.
4. In view of the above and for the reason stated above the
impugned judgment and order passed by the High Court is
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hereby set aside. The order passed by the First Appellate
Court setting aside the exparte judgment and decree and
restoring the suit is hereby restored. However, it is observed
that on restoration of the suit, the defendant nos. 2 & 3 shall
not be permitted to file the written statement, as though
number of opportunities were given earlier, they did not file
the written statement. However, at the same time they may
be permitted to participate in the suit and crossexamine the
witnesses and make submissions on merits. Present appeal is
partly allowed to the aforesaid extent. However, in the facts
and circumstances of the case there shall be no order as to
costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B.V. NAGARATHNA)
New Delhi,
July 11, 2022.
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