While setting aside a High Court judgment resurrecting a property dispute between the brothers, which was decided over 3 decades back, the Supreme Court has explained that once the pleadings are complete but the defendant is set exparte, the defendant’s rights suffer a curtailment and he cannot produce evidence in defence.

The Supreme Court was considering a Civil Appeal against a judgment of the Allahabad High Court allowing a writ petition under Article 227 of the Constitution of India filed by the respondents. The impugned order also allowed multiple interlocutory applications, viz. application for condonation of delay in filing a recall application; application for recall/restoration, an application for amendment prior to the writ petition being allowed.

The Division Bench of Justice Dipankar Datta and Justice Manmohan observed, “Pleadings, either in a plaint or a written statement, constitute the plinth on which the respective claims and defence of the parties to a civil suit rest. What a pleading ought to contain is provided in Order VI Rule 2, CPC. Only material facts, on which the party pleading relies for his claim or defence to succeed, have to be stated without the evidence by which the pleading is to be proved. Once the pleadings are complete but the defendant is set exparte, and such order has attained finality, the defendant’s rights suffer a curtailment. He cannot produce evidence in defence and hence statements, which are in the nature of factual assertions, cannot be proved by leading evidence. Generally speaking, the limited right that the defendant, set ex parte, would have is confined to cross-examining the plaintiff’s witnesses. The effort has to be directed towards demonstrating that they are not speaking the truth and, thereby, demolish the case of the plaintiff. Essentially, therefore, in such a case the defendant has to convince the court that the case put up by the plaintiff is so false that the court ought not to accept it.”

Advocate Brajesh Pandey represented the Appellant while AOR Kiran Kumar Patra represented the Respondent.

Factual Background

The Appellant, as plaintiff, instituted a civil suit in 1987 for cancellation of a sale deed in the court of the Munsif. The prayer in the plaint was for cancellation of a registered sale deed whereby the appellant purportedly transferred a land, measuring a little in excess of 6 bigha 5 biswa, in favour of the defendants. The appellant set up a case of fraud in support of his claim for relief. The matter was taken up for hearing and on 10 occasions, the trial court adjourned proceedings. Finally, the suit was decreed ex parte by the trial court on August 17, 1991. The trial court thereafter proceeded to hear the Order IX Rule 13 application and dismissed it by an order dated July 23, 2002.

The order was then carried in a miscellaneous appeal, which was dismissed by the District Judge with the reasoning that sufficient cause for non-appearance was not shown by the respondents. This appellate order was challenged in the writ petition by the respondents, out of which the present appeal had arisen. By an order dated December 1, 2011, the writ petition was dismissed as infructuous. More than six and a half years later, the respondents sought recall of this order together with an application for condonation of delay.

By the impugned order, the High Court allowed the prayer for condonation of delay, recalled the order dated December 1, 2011, allowed the prayer for amendment and then proceeded to allow the writ petition. The appellate order confirming dismissal of the application under Order IX Rule 13, CPC was set aside as well as the ex-parte decree. Aggrieved thereby, the appellant approached the Apex Court.

Reasoning

The Bench was of the view that the period of 7 years is sufficiently long and considered in the light of the fact that the decree of the trial court had been executed and the impugned sale deed cancelled, the respondents should have woken up from their slumber earlier. “This delay itself would constitute sufficient reason for not condoning the delay in filing the application for recall of the order dismissing the writ petition as infructuous. However, we propose to take a lenient view having regard to the explanation proffered by the respondents that their lawyer did not inform them that the writ petition had been dismissed”, it said.

The Bench found the grounds assigned by the Judge for allowing the writ petition to be quite strange. The Judge did not at all discuss the case set up by the respondents and the defence of the appellant in his written objection while seeking recall of the ex parte decree. The reasons given in the appellate order upholding dismissal of the application under Order IX Rule 13, CPC seemed to have gone unnoticed.

The Apex Court explained that in exercise of jurisdiction under Article 227 of the Constitution, the Judge was required to examine whether the respondents had shown sufficient cause for staying away from the proceedings of the suit after filing their written statement i.e. whether despite showing sufficient cause, not only the trial court but also the appellate court fell in error in not accepting the explanation proffered and in setting aside the ex parte decree. It was also noticed that neither did the respondents nor the so-called attending doctor of the first respondent stepped into the witness box to prove that the first respondent was ill.

“Assuming that the respondent no. 1 was so sick which prevented him from attending the court, there is no explanation either as to why the other respondents after filing of the written statement had not shown any interest to contest the suit”, it said while also asserting, “It is only on this short ground (that the respondents did not make out sufficient cause for their absence on continuous dates from 24th April 1991 till the suit was decreed on 17th August 1991) that the impugned order cannot be sustained in law.”

The Bench noted that it was the flawed approach of the Judge which resurrected the dispute between the brothers, which was finally decided over 3 decades back. Thus, setting aside the order of the High Court, the Bench dismissed the writ petition of the respondents and allowed the civil appeal.

Cause Title: Kanchhu v. Prakash Chand & Ors. (Neutral Citation: 2025 INSC 542)

Appearance:

Appellant: Advocates Brajesh Pandey, Paramhans Sahani, Sunil Kumar Pandey, S.K. Tripathi, Hemant Kumar Niranjan, AOR M/S. Brajesh Pandey & Associates

Respondent: AOR Kiran Kumar Patra, Advocates Chandan Maity, Preetish Sahu

Click here to read/download Judgment







Justice Dipankar DattaJustice Manmohan

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.