Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3641 OF 2022
Sudhir Ranjan Patra (Dead) thr. LRs. & Anr. ..Appellant (S)
Versus
Himansu Sekhar Srichandan & Ors. ..Respondent (S)
With
CIVIL APPEAL NO. 3642 OF 2022
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 04.02.2022 passed by the High
Court of Orissa at Cuttak in CMP No. 1423/2019, by
which, though the High Court has confirmed the order
passed by the learned Trial Court setting aside the
ex
parte decree in exercise of powers under Order IX Rule 13
of Code of Civil Procedure (CPC), the High Court has
observed and held that appellants herein – defendant Nos.
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2022.05.17
16:47:08 IST
Reason:
2 and 3 cannot be permitted to file their written statement,
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the appellants herein – original defendant Nos. 1 to 3 have
preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are
as under:
2.1 That respondent No. 1 herein – original plaintiff instituted
a suit for declaration of his right, title, interest and
possession over the suit schedule land being Civil Suit No.
1783/2011. The original plaintiff also prayed for a decree
to declare that original defendant No. 2 has no authority to
alienate the suit land and also to declare that the two
registered sale deeds bearing Nos. 3530 and 3533 of 2000
are not binding on the plaintiff as well as proforma
defendant Nos. 4 and 5. A relief of permanent injunction
against original defendant Nos. 1 to 3 was also sought for.
The appellants herein – original defendant Nos. 2 and 3
appeared in the suit on 20.03.20212 and filed a petition
for time to file their written statement. However, in spite of
several adjournments, they did not file written statement.
That the appellants herein – original defendant Nos. 2 and
3 did not file their written statement. Thereafter, the issues
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were framed by the learned Trial Court. On 27.03.2017,
the plaintiff filed their evidence in examination in chief by
an affidavit. On 04.07.2017, when the suit was called on
for hearing, appellants herein – original defendant Nos. 2
and 3 were absent and therefore, were set exparte.
Thereafter, on behalf of the plaintiff, PW1 came to be
examined. The case was posted to 15.07.2017 for
argument. On that date, original defendant Nos. 1 to 3 also
filed an application for adjournment for which the suit was
adjourned to 17.07.2017, on which date, the argument
was heard and judgment was pronounced on 18.07.2017.
The learned Trial Court passed an exparte decree.
Subsequently, the appellants herein – original
defendant Nos. 2 and 3 filed CMA No. 31/2018 under
Order IX Rule 13 of CPC to set aside the exparte decree
along with an application under Section 5 of the Limitation
Act to condone the delay in filing the CMA. The appellants
herein – original defendant Nos. 2 and 3 also prayed to
allow the filing of written statement and to take up the suit
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on merits. By order dated 05.12.2019, the learned Trial
Court allowed the CMA by condoning the delay.
2.2 Feeling aggrieved and dissatisfied with order dated
05.12.2019 passed by the learned Trial Court allowing
CMA No. 31/2018, the original plaintiff – respondent No. 1
herein filed CMP No. 1423/2019 before the High Court. By
the impugned judgment and order, though the High Court
has confirmed the order passed by the learned Trial Court
condoning the delay and setting aside the exparte decree,
the High Court has also passed an order that on setting
aside the exparte decree and consequently the suit being
restored to file, defendant Nos. 2 and 3 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. The High Court has also
observed that they can advance their argument on the
basis of the materials available on record only.
2.3 Feeling aggrieved with the judgment and order passed by
the High Court to the extent of observing that defendant
Nos. 2 and 3 cannot be permitted to file their written
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statement and that they can only take part in the hearing
of the suit without propounding their own case, original
defendant Nos. 1 to 3 – appellants herein have preferred
the present appeals.
3. Learned counsel appearing on behalf of the appellants
herein – original defendant Nos. 2 and 3 has vehemently
submitted that in the facts and circumstances of the case
the High Court has committed a grave error in passing the
order that appellants herein defendant Nos. 2 and 3
cannot be permitted to file their written statement.
3.1 It is vehemently submitted that once the suit was restored
to file by setting aside the exparte decree which has been
upheld by the High Court, thereafter, it was not open for
the High Court to pass a further order that on setting
aside the exparte decree and restoring the suit to file,
defendant Nos. 2 and 3 cannot be permitted to file their
written statement.
3.2 It is submitted that what was challenged before the High
Court was the order passed by the learned Trial Court
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condoning the delay and setting aside the exparte decree.
It is submitted that therefore, the impugned order passed
by the High Court observing that defendant Nos. 2 and 3
cannot be permitted to file their written statement is
beyond the scope and ambit of CMP filed before the High
Court.
3.3 It is submitted that once the suit was restored to file by
setting aside the exparte decree and no order was passed
by the learned 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 learned Trial Court.
3.4 It is submitted that in the present case no order was
passed by the learned Trial Court on whether the written
statement be taken on record or not, the decisions relied
upon by the High Court in the case of Sangram Singh Vs.
Election Tribunal, Kotah and another ; AIR 1955 SC 425
and Arjun Singh Vs. Mohindra Kumar and others ; AIR
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1964 SC 993 shall not be applicable to the facts of the
case on hand.
4. Present appeals are vehemently opposed by Shri Nitesh
Bhandari, learned counsel appearing on behalf of
respondent No. 1 herein – original plaintiff.
4.1 It is submitted that despite the fact that a number of
opportunities were given to defendant Nos. 2 and 3 to file
their written statement between 2012 to 2017 (till the ex
parte decree was passed). Hence, the High Court was
justified in passing the impugned order by observing that
defendant Nos. 2 and 3 cannot be permitted to file their
written statement on setting aside the exparte decree.
4.2 It is submitted that as held 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 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. It is
submitted that therefore, the impugned order passed by
the High Court is absolutely in consonance with the law
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laid down by this Court in the case of Sangram Singh
(supra) and Arjun Singh (supra).
5. We have heard learned counsel appearing on behalf of the
respective parties at length.
6. At the outset it is required to be noted that when the
appellants – original defendant Nos. 2 and 3 filed CMA No.
31/2018 under Order IX Rule 13 of CPC they prayed to
condone the delay as well as to set aside the exparte
decree and also to allow filing of the written statement and
to take up the suit on merits. By order dated 05.12.2019,
the learned Trial Court allowed CMA No. 31/2018 and
condoned the delay and set aside the exparte decree
subject to cost of Rs. 25,000/ each to be paid to the
plaintiff. From order dated 05.12.2019, it does not appear
that any further order was passed by the learned Trial
Court on whether by setting aside the exparte decree,
defendant Nos. 2 and 3 may be permitted to file written
statement or not. The order passed by the learned Trial
Court condoning the delay and setting aside the exparte
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decree has been confirmed by the High Court by passing
the impugned judgment and order. However, the High
Court has observed that on setting aside the exparte
decree and restoring the suit to file, defendant Nos. 2 and
3 cannot be permitted to file the written statement.
Reliance is placed upon the decisions of this Court in the
case of Sangram Singh (supra) and Arjun Singh (supra).
However, 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 cross
examine the witness of the plaintiff and address
arguments. However, in our view, in the facts and
circumstances of the case, the decisions of this Court in
the case of (supra) and
Sangram Singh Arjun Singh
(supra) shall not be fully applicable. In the present case by
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filing the CMA under Order IX Rule 13, appellants herein –
original defendant Nos. 2 and 3 not only prayed to set
aside the exparte decree but also prayed to allow them to
file written statement. As observed above, 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.
As observed hereinabove, there was no order passed by
the learned Trial Court on the specific prayer made by
defendant Nos. 2 and 3 to allow them to file written
statement. The learned Trial Court while passing order
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dated 05.12.2019 condoned the delay and set aside the ex
parte decree and the said order of condonation of delay
and setting aside the exparte decree was the subject
matter before the High Court. Therefore, the further
observations made by the High Court that defendant Nos.
2 and 3 cannot be permitted to file their written statement
can be said to be beyond the scope and ambit of the CMP
filed before the High Court. Under the circumstances, the
impugned judgment and order passed by the High Court to
the extent of observing that defendant Nos. 2 and 3 cannot
be permitted to file their written statement is
unsustainable and the issue/question whether defendant
Nos. 2 and 3 may be allowed to file their written statement
or not, shall have to be remanded to the learned Trial
Court.
7.
In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court to
the extent of observing that though the exparte decree is
set aside, defendant Nos. 2 and 3 cannot be permitted to
file their written statement is hereby quashed and set
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aside. The learned Trial Court to consider the prayer of
defendant Nos. 2 and 3 whether to allow/permit them to
file their written statement or not and as and when such
question/issue is considered by the learned Trial Court, it
will be open for respondent No. 1 – original plaintiff to
resist the same and the learned Trial Court to consider the
question/issue whether on setting aside the exparte
decree, defendant Nos. 2 and 3 may be allowed/permitted
to file their written statement, in accordance with law and
on its own merits for which we have not expressed
anything in favour of either party. The learned Trial Court
to consider the issue/question with respect to the prayer
of defendant Nos. 2 and 3 to allow them to file their written
statement within a period of three months from the first
date of hearing of the suit, which shall be within a period
of one month from today. The present appeals are allowed
to the aforesaid extent. In the facts of the case, there shall
be no order as to costs.
…………………………………J.
(M. R. SHAH)
New Delhi, …………………………………J.
th
17 May, 2022
(B.V. NAGARATHNA)
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