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

Citation: [2022] 3 S.C.R. 381 · Decided: 17-05-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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381
   [2022] 3 S.C.R. 381
381
SUDHIR RANJAN PATRA (DEAD) THR. LRS. & ANR.
v.
HIMANSU SEKHAR SRICHANDAN & ORS.
(Civil Appeal No. 3641 of 2022)
MAY 17, 2022
[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-
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
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
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
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
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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382
SUPREME COURT REPORTS
[2022] 3 S.C.R.
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
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
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
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
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]
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
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.
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