SUDHIR RANJAN PATRA (DEAD) THR. LRS. & ANR.versusHIMANSU SEKHAR SRICHANDAN & ORS.

                          [2022] 3 S.C.R. 381                            381


     SUDHIR RANJAN PATRA (DEAD) THR. LRS. & ANR.                         A
                                  v.
          HIMANSU SEKHAR SRICHANDAN & ORS.
                   (Civil Appeal No. 3641 of 2022)
                           MAY 17, 2022                                  B
         [M. R. SHAH AND B.V. NAGARATHNA, JJ.]
       Code of Civil Procedure, 1908: Ord. IX r. 13 – Setting aside
ex-parte decree – On facts, application u/Ord. IX r. 13 by the
appellants seeking condonation of delay, setting aside of an ex-
                                                                         C
parte decree and also to allow them to file written statement and to
take up the suit on merits – Trial court allowed the application by
condoning the delay and set aside the ex-parte decree – In appeal,
the High Court though upheld the order passed by the trial court, it
held that the appellants cannot be permitted to file their written
statement – On appeal, held: Once the ex-parte decree is set aside       D
and the suit is restored to file, appellants cannot be relegated back
to the position prior to the date of hearing of the suit – It should
have been left to the trial court to consider the prayer of appellants
whether to allow them to file written statement or not, which was
also prayed in the application – There was no order passed by the
                                                                         E
trial court on the prayer made by the appellants to allow them to
file written statement – Trial court condoned the delay and set aside
the ex-parte decree and the said order of condonation of delay and
setting aside the ex-parte decree was the subject matter before the
High Court – Thus, the impugned judgment and order passed by
the High Court that the appellants cannot be permitted to file their     F
written statement is beyond the scope and ambit of the petition filed
before the High Court, thus, unsustainable and is quashed and set
aside – Issue whether appellants may be allowed to file their written
statement or not, remanded to the trial court.
      Allowing the appeals, the Court                                    G
     HELD: 1.1 It is true that as per the law laid down by this
Court in Sangram Singh’s case and Arjun Singh’s case when an
ex-parte decree is set aside and the suit is restored to file, the
defendants cannot be relegated to the position prior to the date
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                                 381
382           SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A     of hearing of the suit when he was placed ex-parte. 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. In
      the instant case, by filing the CMA under Order IX Rule 13,
      appellants-original defendant Nos. 2 and 3 not only prayed to set
B
      aside the ex-parte decree but also prayed to allow them to file
      written statement. There was no order and/or decision by the
      trial court on the second prayer, namely, to allow defendant Nos.
      2 and 3 to file written statement or not. Therefore, once the ex-
      parte decree is set aside and the suit is restored to file, the
C     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 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 the CMA. The trial court while passing order,
      condoned the delay and set aside the ex-parte decree and the
D
      said order of condonation of delay and setting aside the ex-parte
      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
E     before the High Court. Under the circumstances, the impugned
      judgment and order passed by the High Court is unsustainable
      and the issue/question whether defendant Nos. 2 and 3 may be
      allowed to file their written statement or not, would have to be
      remanded to the trial court. [Para 6][386-G-H; 387-A-F]
F            1.2 The impugned judgment and order passed by the High
      Court to the extent of observing that though the ex-parte decree
      is set aside, defendant Nos. 2 and 3 cannot be permitted to file
      their written statement is quashed and set aside. The trial court
      to consider the prayer of defendant Nos. 2 and 3 whether to allow/
      permit them to file their written statement or not, in accordance
G     with law and on its own merits. [Para 7][387-G-H]
            Sangram Singh Vs. Election Tribunal, Kotah and
            another AIR 1955 SC 425 : [1955] SCR 1; Arjun Singh
            Vs. Mohindra Kumar and others AIR 1964 SC 993 :
            [1964] SCR 946 – held partly inapplicable.
H
  SUDHIR RANJAN PATRA (DEAD) THR. LRS. v. HIMANSU                                 383
              SEKHAR SRICHANDAN

                          Case Law Reference                                      A
[1955] SCR 1                held partly inapplicable           Para 6
[1964] SCR 946              held partly inapplicable           Para 6
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.3641
of 2022.                                                                          B
      From the Judgment and Order dated 04.02.2022 of the High Court
of Orissa at Cuttack in CMP No.1423 of 2019.
       With
       Civil Appeal No.3642 of 2022.
                                                                                  C
      Vijay K. Jain, Suresh Chandra Tripathy, Ms. Shailja Kulshreshtha,
Nitesh Bhandari, Prabhat Kumar Rai, Shourajeet Chakravarty, Ms.
Aprajita Bhardwaj, Naveen Kumar, Advs. for the appearing parties.
       The Judgment of the Court was delivered by
       M. R. SHAH, J.                                                             D

      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              E
Procedure (CPC), the High Court has observed and held that appellants
herein – defendant Nos. 2 and 3 cannot be permitted to file their written
statement, 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            F
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               G
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
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384             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A     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 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
B
      the suit was called on for hearing, appellants herein – original defendant
      Nos. 2 and 3 were absent and therefore, were set ex-parte. Thereafter,
      on behalf of the plaintiff, PW-1 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
C     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 ex-parte 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
D     aside the ex-parte 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 on merits. By order dated
      05.12.2019, the learned Trial Court allowed the CMA by condoning the
      delay.
E
             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
F     delay and setting aside the ex-parte decree, the High Court has also
      passed an order that on setting aside the ex-parte 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
G     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 statement and that they can only take
H     part in the hearing of the suit without propounding their own case, original
  SUDHIR RANJAN PATRA (DEAD) THR. LRS. v. HIMANSU                               385
        SEKHAR SRICHANDAN [M. R. SHAH, J.]

defendant Nos. 1 to 3 – appellants herein have preferred the present            A
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.        B
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 ex-parte 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 ex-parte decree and restoring the       C
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 condoning the delay and
setting aside the ex-parte decree. It is submitted that therefore, the          D
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 ex-parte decree and no order was passed by the learned Trial          E
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            F
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 1964 SC 993 shall not be applicable to the facts of the case on
hand.
                                                                                G
       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
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386             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A     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 ex-parte decree.
             4.2 It is submitted that as held by this Court in the case of Sangram
B     Singh (supra) and Arjun Singh (supra) when an ex-parte 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 laid down by this Court in the case of
C     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
D     – 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 ex-parte 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 ex-parte decree subject to cost of Rs. 25,000/- each to be paid
E     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 ex-parte 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 ex-parte decree has been
F     confirmed by the High Court by passing the impugned judgment and
      order. However, the High Court has observed that on setting aside the
      ex-parte 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
G     down by this Court in the case of Sangram Singh (supra) and Arjun
      Singh (supra) when an ex-parte 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 ex-parte. He would be
      debarred from filing any written statement in the suit, but then he can
H     participate in the hearing of the suit inasmuch cross-examine the witness
  SUDHIR RANJAN PATRA (DEAD) THR. LRS. v. HIMANSU                             387
        SEKHAR SRICHANDAN [M. R. SHAH, J.]

of the plaintiff and address arguments. However, in our view, in the          A
facts and circumstances of the case, the decisions of this Court in the
case of Sangram Singh (supra) and Arjun Singh (supra) shall not be
fully applicable. In the present case by filing the CMA under Order IX
Rule 13, appellants herein – original defendant Nos. 2 and 3 not only
prayed to set aside the ex-parte decree but also prayed to allow them to
                                                                              B
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 ex-parte 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            C
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              D
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 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 ex-parte decree was the subject matter before the High Court.
Therefore, the further observations made by the High Court that               E
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           F
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         G
observing that though the ex-parte decree is set aside, defendant Nos. 2
and 3 cannot be permitted to file their written statement is hereby quashed
and set 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
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388                SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A     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 ex-parte 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
B
      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
C     as to costs.

      Nidhi Jain                                                 Appeals allowed.




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