Summary
The High Court, under Article 227, had condoned a delay of about seven years in seeking recall of the dismissal of a writ petition, restored it and then set aside a 1991 ex parte decree because the trial court had not considered the written statement, without examining whether the defendants had shown sufficient cause under Order IX Rule 13 CPC. The Court set that order aside, holding that the defendants had never explained their absence and that a defendant set ex parte has only the limited right to cross-examine the plaintiff's witnesses and to have pure questions of law decided; the decree could not be faulted for not acting on an unproved written statement.
Issues
- Whether the High Court was justified, in exercise of jurisdiction under Article 227 of the Constitution, in allowing the writ petition, recalling its order dismissing the petition as infructuous and setting aside the ex parte decree.
- Whether the defendants had shown sufficient cause under Order IX Rule 13 CPC for their non-appearance in the suit.
- What rights a defendant who has been set ex parte retains, and whether an ex parte decree can be set aside on the ground that the defence in the written statement was not considered.
Provisions considered
- Order IX Rule 13, Code of Civil Procedure, 1908The rule requires the defendant to satisfy the court that he was prevented by sufficient cause from appearing. The affidavit pleaded illness of respondent No. 1 from 15/08/1991, but the respondents had taken ten adjournments, were set ex parte on 24/04/1991 and were absent on 02/07/1991 and 06/08/1991, before the alleged illness; neither the respondents nor the doctor entered the witness box, and the other respondents' absence was unexplained. The cause shown was a lame excuse, and the trial and appellate courts had rightly rejected it. (¶¶ 11, 12, 13, 14, 15, 17)
- Article 227, Constitution of IndiaIn supervisory jurisdiction the High Court had to examine whether the respondents had shown sufficient cause for staying away from the suit and whether the trial and appellate courts erred in rejecting their explanation. Instead it set aside the ex parte decree as if sitting in appeal over it, without referring to the application, the objection or the orders of the courts below. (¶¶ 9, 11, 12, 15)
- Section 5, Limitation Act, 1963The seven-year delay in applying for recall of the order dismissing the writ petition would itself have been sufficient reason to refuse condonation, especially as the decree had been executed and the sale deed cancelled. The Court nevertheless assumed, taking a lenient view of the explanation that the lawyer had not informed the respondents, that the delay could be condoned, while making clear that a plea blaming the lawyer need not invariably be accepted. (¶¶ 7, 8)
- Order VI Rule 2, Code of Civil Procedure, 1908Pleadings must state only material facts, not the evidence by which they are to be proved. Once the defendant is set ex parte and that order attains finality, factual assertions in the written statement cannot be proved by evidence; the defendant's limited right is generally to cross-examine the plaintiff's witnesses, though a pure question of law traceable in the written statement (such as limitation or the bar of Section 9 CPC) may still be framed and decided. (¶ 19)
Held
- The respondents applied for recall of the order dismissing their writ petition as infructuous about seven years later, after the decree had been executed and the sale deed cancelled. That delay was itself sufficient reason to refuse condonation, but the Court assumed in their favour that the explanation that their lawyer had not informed them could be accepted, without laying down that blaming the lawyer must invariably be accepted. (¶¶ 7, 8)
- The High Court's grounds for allowing the writ petition were strange: it did not discuss the case set up in the Order IX Rule 13 application or the written objection, ignored the reasons of the trial court and the appellate court, directed framing of issues that had been framed in 1988, and set aside the ex parte decree as if exercising appellate jurisdiction over it. (¶¶ 9, 10, 12, 15)
- Under Article 227 the High Court was required to examine whether the respondents had shown sufficient cause for staying away from the proceedings after filing their written statement, and whether the trial and appellate courts erred in not accepting the explanation and in refusing to set aside the ex parte decree. (¶ 11)
- Even accepting the plea of illness from 15/08/1991, the respondents had taken ten adjournments, were set ex parte on 24/04/1991 and stayed away on the dates fixed for evidence and arguments, months before the claimed illness; they never explained why the suit proceeded ex parte, no witness was examined to prove the illness, and the other respondents' disinterest was unexplained. Vigilance and diligence were glaringly lacking, and on this short ground alone the impugned order could not be sustained. (¶¶ 13, 14, 16, 17)
- Guidance for the courts: pleadings are the plinth of a civil suit and under Order VI Rule 2 CPC state material facts without evidence. Once a defendant is set ex parte and that order attains finality, his rights are curtailed: he cannot lead evidence, and factual assertions in the written statement cannot be proved. His limited right is generally confined to cross-examining the plaintiff's witnesses to show that the plaintiff's case is false. If, however, the defendant raises a pure question of law traceable in the written statement, such as limitation, the bar of Section 9 CPC, or that the relief claimed cannot be granted, the court may frame an issue of law and decide it without evidence from the defendant. (¶¶ 18, 19)
- Where the preliminary issue of jurisdiction had been decided against the defendants and they did not cross-examine the plaintiff, whose deposition was believed, the judgment could not be faulted and the decree set aside on the ground that the defence in the written statement was not considered; the High Court's observations were not supportable by any provision of law or binding precedent, and its flawed approach resurrected a dispute finally decided three decades earlier. (¶¶ 20, 21)
Result
Appeal allowed; the High Court's order dated 01/05/2024 set aside; the appellate court's order dated 08/10/2002 upholding the dismissal of the Order IX Rule 13 application restored, with the result that the respondents' writ petition stands dismissed; pending applications closed.