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.