Summary
Two defendants impleaded in an Orissa title suit in 2004 took repeated adjournments to file a written statement, never filed one, stopped appearing, and an ex parte decree followed. The trial court refused to set it aside under Order IX Rule 13 CPC, but the first appellate court found sufficient cause, set the decree aside and restored the suit with liberty to all parties to adduce evidence. The Orissa High Court, under Articles 226 and 227, reversed solely on the ground that setting aside the decree would be futile because defendants without a written statement cannot lead evidence, without examining the finding of sufficient cause. The Supreme Court partly allowed the defendants' appeal. Under Sangram Singh and Arjun Singh, on setting aside an ex parte decree the parties are restored to the position when it was passed, so restoration was not futile.
Issues
- Whether setting aside an ex parte decree under Order IX Rule 13 CPC is futile where the defendants never filed a written statement, so that a High Court may reverse the order on that ground alone without examining the finding of sufficient cause.
- What a defendant who filed no written statement may do in the suit once the ex parte decree is set aside and the suit restored.
Provisions considered
- Order IX Rule 13, Code of Civil Procedure, 1908The first appellate court recorded that the defendants had shown sufficient cause and set aside the ex parte decree; the High Court did not deal with that finding at all, and its reversal on the sole ground of futility was unsustainable. (¶¶ 2, 3.1, 4)
- Order VIII (written statement) and Order I Rule 10, Code of Civil Procedure, 1908Having been impleaded and given numerous opportunities, the defendants may not now file a written statement, but the absence of a written statement does not bar them from participating in the restored suit, cross-examining witnesses and making submissions on merits (Sangram Singh, Arjun Singh). (¶¶ 3, 3.1, 4)
- Articles 226 and 227, Constitution of IndiaThe High Court, exercising supervisory jurisdiction over the first appellate court's order, set it aside without examining the correctness of the finding of sufficient cause; such an order was unsustainable. (¶¶ 2, 3.1)
Held
- On the setting aside of an ex parte decree and restoration of the suit the parties are placed in the position they occupied when the decree was passed; the defendants cannot be permitted to file a written statement they never filed, but they may participate in the proceedings, cross-examine the witnesses and argue, so the High Court was wrong to hold that reopening the suit would be futile. (¶¶ 3, 3.1)
- The High Court said nothing on the merits of the first appellate court's finding that sufficient cause had been shown; that finding stands, and the first appellate court's order setting aside the decree and restoring the suit was in consonance with the law and is restored. (¶¶ 3.1, 4)
Result
Appeal partly allowed; the Orissa High Court's order of 16.05.2018 set aside and the first appellate court's order setting aside the ex parte decree and restoring the suit restored, with the direction that defendants 2 and 3 shall not be permitted to file a written statement but may participate in the suit, cross-examine witnesses and make submissions on merits. No order as to costs.