NANDA DULAL PRADHAN & ANR.versusDIBAKAR PRADHAN & ANR.

                        [2022] 7 S.C.R. 483                              483


              NANDA DULAL PRADHAN & ANR.                                 A
                                  v.
                 DIBAKAR PRADHAN & ANR.
                   (Civil Appeal No. 4151 of 2022)
                           JULY 11, 2022                                 B
        [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Civil Procedure Code, 1908 – Or. IX r. 13 – Setting aside ex-
parte decree – Permission to participate in suit proceedings and
cross-examine witnesses in absence of written statement – First
                                                                         C
Appellate Court allowed defendant nos.2 and 3 to adduce evidence
apart from setting aside ex–parte judgment against them – High
Court held that mere setting aside the ex-parte judgment and decree
would serve no purpose as the defendants cannot lead evidence in
the absence of written statement filed by them and consequently
setting aside the order passed by the First Appellate Court – Held:      D
In the case of Sangram Singh, the Supreme Court held that on setting
aside the ex-parte 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 ex-parte judgment and decree was passed and the
defendants may not be permitted to file the written statement as no
                                                                         E
written statement was filed – However, at the same time they can be
permitted to participate in the suit proceedings and cross-examine
the witnesses – In that view of the matter the impugned judgment
and order passed by the High Court is unsustainable and set aside.
      Sangram Singh v. Election Tribunal AIR 1955 SC 425
                                                                         F
      : [1955] SCR 1 – relied on.
      Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 :
      [1964] SCR 946 – referred to.
                       Case Law Reference
[1955] SCR 1                   relied on              Para 3             G

[1964] SCR 946                 referred to            Para 3
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4151
of 2022.
                                                                         H
                                 483
484            SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A           From the Judgment and Order dated 16.05.2018 of the High Court
      of Orissa at Cuttack in C.M.P. No. 324 of 2018.
           Sibo Sankar Mishra, Rajesh Kumar Nayak, Niranjan Sahu, V. K.
      Mishra, Advs. for the Appellants.
            Gautam Das, Manoj Kumar, Binod Kumar, Dhirendra Ku. Jha,
B     Tarun Kant Samantray, Abdhut Kumar Jena, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
            1. Feeling aggrieved and dissatisfied with the impugned judgment
C     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 ex-parte judgment and decree would
      serve no purpose as the defendants cannot lead evidence in the absence
      of written statement filed by them and consequently setting aside the
D     order passed by the First Appellate Court who allowed the appellants
      herein – original defendant nos. 2 and 3 to adduce the evidence apart
      from setting aside ex-parte 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
E
      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
F     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
G
      the learned Trial Court. Thereafter the learned Trial Court passed an
      ex-parte 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 ex-parte judgment and decree.
      The learned Trial Court dismissed the said application and refused to set
H     aside the ex-parte judgment and decree. Hence defendant nos. 2 & 3
NANDA DULAL PRADHAN & ANR. v. DIBAKAR PRADHAN                                    485
             & ANR. [M. R. SHAH, J.]

preferred the appeal before the First Appellate Court. The First Appellate       A
Court allowed the said appeal by setting aside the order passed by the
learned Trial Court dismissing the application to set aside the ex-parte
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
                                                                                 B
and rebuttal evidence. Feeling aggrieved and dissatisfied with the order
passed by the First Appellate Court in allowing the appeal and setting
aside the ex-parte 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   C
Articles 226 and 227 of the 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 ex-
parte judgment and decree, the High Court has set aside the order passed
                                                                                 D
by the First Appellate Court setting aside the ex-parte 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 ex-parte judgment and decree.
      2.1 Feeling aggrieved and dissatisfied with the impugned judgment          E
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 ex-parte judgment and decree and observing that on restoration of            F
the suit the same be disposed of after affording opportunities to the
parties to adduce their 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                        G
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 ex-parte
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         H
486              SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A     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 ex-parte 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
B
      the suit would become futile. However, as observed and held by this
      Court in the case of Sangram Singh (supra) on setting aside the ex-
      parte 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 ex-parte
      judgment and decree was passed and the defendants may not be permitted
C     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. In that view of the matter the impugned
      judgment and order passed by the High Court is unsustainable. Still, on
      setting aside the ex-parte judgment and decree, though the defendants
      who had not filed the written statement, can be permitted to participate
D
      in the suit and cross-examine 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 ex-parte 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
E     by the First Appellate Court setting aside the ex-parte 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 hereby set
      aside. The order passed by the First Appellate Court setting aside the
F     ex-parte 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 cross-examine the witnesses and make submissions on
G     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.

      Ankit Gyan                                                     Partly allowed.
H     (Assisted by : Rahul Rathi, LCRA)