Summary
In an Orissa title suit, defendants 2 and 3 appeared in 2012 but never filed a written statement, were set ex parte on 04.07.2017, and an ex parte decree followed on 18.07.2017. On their application under Order IX Rule 13 CPC, which also sought leave to file a written statement, the trial court condoned the delay and set aside the decree without deciding the second prayer. The Orissa High Court confirmed the setting aside but added that the defendants could not file a written statement, relying on Sangram Singh and Arjun Singh. The Supreme Court allowed the defendants' appeals in part: those decisions do not relegate a restored defendant to the pre-hearing stage, but the trial court had not decided the specific prayer to file a written statement, so the High Court's observation was beyond the scope of the plaintiff's petition and the question was remitted to the trial court.
Issues
- Whether, when the High Court merely confirms an order setting aside an ex parte decree under Order IX Rule 13 CPC, it may further direct that the restored defendants cannot file a written statement, when the trial court had not decided their specific prayer for leave to file one.
Provisions considered
- Order IX Rule 13; Order VIII Rule 1, Code of Civil Procedure, 1908Under Sangram Singh and Arjun Singh a defendant whose ex parte decree is set aside cannot be relegated to the position before the hearing date and is ordinarily debarred from filing a written statement, though he may cross-examine and argue; but here the defendants had specifically prayed in their Order IX Rule 13 application for leave to file a written statement and the trial court passed no order on it, so the question must be decided by the trial court on its own merits rather than foreclosed by the High Court. (¶¶ 6, 7)
Held
- The subject matter before the High Court was only the trial court's order condoning the delay and setting aside the ex parte decree; its further observation that defendants 2 and 3 cannot be permitted to file their written statement was beyond the scope and ambit of the plaintiff's petition and is unsustainable. (¶ 6)
- Although under Sangram Singh v. Election Tribunal and Arjun Singh v. Mohindra Kumar a defendant whose ex parte decree is set aside is not relegated to the pre-hearing stage and would ordinarily be debarred from filing a written statement, those decisions are not fully applicable where the defendants had expressly prayed for leave to file a written statement and the trial court never decided that prayer; the trial court must consider it, with the plaintiff free to resist, within three months of the first hearing of the restored suit, which shall be within one month. (¶¶ 6, 7)
Result
Appeals allowed in part; the Orissa High Court's judgment of 04.02.2022 in CMP No. 1423 of 2019 set aside to the extent it held that defendants 2 and 3 cannot file a written statement; the trial court directed to decide their prayer for leave to file a written statement on its own merits within three months of the first hearing of the restored suit. No order as to costs.