
Parties Can Participate In Proceedings Upon Setting Aside Ex-Parte Decree And Restoring Suit- Supreme Court
|The two-judge bench of Justice M. R. Shah, and Justice B. V. Nagarathna set aside the order of the Orissa High Court of Orissa in a suit related to declaration of title.
The Court held, "...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 cross-examine the witnesses."
The Bench expressed that without considering the findings of the First Appellate Court on whether there was sufficient cause for setting aside the ex-parte judgment, the High Court deciding the matter on the grounds that reopening the suit would be futile given no written statement being filed by the Defendants is unsustainable.
Advocate Sibo Shankar Mishra appeared for the Appellant while Advocate Gautam Das appeared for the Respondents before the Apex Court.
In this case, the Original  Plaintiff/Respondent had filed a suit for declaration of title. The Appellants/Original  Defendants neither appeared before the Trial Court nor filed a written  statement. Consequently, the Trial Court passed an ex-parte judgment and the  Original Defendants filed an application under Order IX Rule 13 of CPC  requesting to set aside the ex-parte decree.
The Trial Court  dismissed the application. The Original Defendants approached the First  Appellate Court where the order passed by the Trial Court was dismissed and the  ex-parte judgment set aside.
The Original Plaintiff  then filed a petition under Article 226 & 227 before the High Court. The  High Court set aside the order of the First Appellate Court adjudicating that  the suit become futile as the Original Defendants had failed to file written  statement.
Feeling aggrieved by  the Order of the High Court, the Original Defendants/Appellants preferred an appeal before the Supreme Court.
The Apex Court placed  reliance on Sangram Singh versus Election  Tribunal, AIR 1955 SC  425, where it was  held that on setting aside the ex-parte decree and restoring the suit, the  parties to the suit shall be put in the same position as they were at the time  when the ex-parte decree was passed and as such the defendants may not be  permitted to file the written statement. However, they can be permitted to  participate in the suit proceedings and cross-examine the witness.
In this context the Bench observed that – "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"
In view of the above, the  Apex Court restored the order passed by the First Appellate Court of setting  aside the ex-parte judgment and restoring the suit and set aside the Order of  the High Court.
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