NANDA DULAL PRADHAN & ANR. versus DIBAKAR PRADHAN & ANR.

Citation: [2022] 7 S.C.R. 483 · Decided: 11-07-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Case Partly allowed
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Judgment (excerpt)

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NANDA DULAL PRADHAN & ANR.
v.
DIBAKAR PRADHAN & ANR.
(Civil Appeal No. 4151 of 2022)
JULY 11, 2022
[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
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:
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
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
: [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
[1964] SCR 946
referred to
Para 3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4151
of 2022.
[2022] 7 S.C.R. 483
483
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
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,
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
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
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
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
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
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
aside the ex-parte judgment and decree. Hence defendant nos. 2 & 3
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preferred the appeal before the First Appellate Court. The First Appellate
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 a
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