Sudhir Ranjan Patra (Dead) … vs Himansu Sekhar Srichandan on 17 May, 2022


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Supreme Court of India

Sudhir Ranjan Patra (Dead) … vs Himansu Sekhar Srichandan on 17 May, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                               REPORTABLE
                                 IN THE SUPREME COURT OF INDIA
                                  CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO. 3641 OF 2022

          Sudhir Ranjan Patra (Dead) thr. LRs. & Anr.                ..Appellant (S)

                                                Versus

          Himansu Sekhar Srichandan & Ors.                          ..Respondent (S)

                                                 With

                                 CIVIL APPEAL NO. 3642 OF 2022


                                          JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 04.02.2022 passed by the High

Court of Orissa at Cuttak in CMP No. 1423/2019, by

which, though the High Court has confirmed the order

passed by the learned Trial Court setting aside the ex­

parte decree in exercise of powers under Order IX Rule 13

of Code of Civil Procedure (CPC), the High Court has

observed and held that appellants herein – defendant Nos.
Signature Not Verified

Digitally signed by
SWETA BALODI
Date: 2022.05.17
16:47:08 IST
Reason:

2 and 3 cannot be permitted to file their written statement,

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the appellants herein – original defendant Nos. 1 to 3 have

preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are

as under: ­

2.1 That respondent No. 1 herein – original plaintiff instituted

a suit for declaration of his right, title, interest and

possession over the suit schedule land being Civil Suit No.

1783/2011. The original plaintiff also prayed for a decree

to declare that original defendant No. 2 has no authority to

alienate the suit land and also to declare that the two

registered sale deeds bearing Nos. 3530 and 3533 of 2000

are not binding on the plaintiff as well as proforma

defendant Nos. 4 and 5. A relief of permanent injunction

against original defendant Nos. 1 to 3 was also sought for.

The appellants herein – original defendant Nos. 2 and 3

appeared in the suit on 20.03.20212 and filed a petition

for time to file their written statement. However, in spite of

several adjournments, they did not file written statement.

That the appellants herein – original defendant Nos. 2 and

3 did not file their written statement. Thereafter, the issues

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were framed by the learned Trial Court. On 27.03.2017,

the plaintiff filed their evidence in examination in chief by

an affidavit. On 04.07.2017, when the suit was called on

for hearing, appellants herein – original defendant Nos. 2

and 3 were absent and therefore, were set ex­parte.

Thereafter, on behalf of the plaintiff, PW­1 came to be

examined. The case was posted to 15.07.2017 for

argument. On that date, original defendant Nos. 1 to 3 also

filed an application for adjournment for which the suit was

adjourned to 17.07.2017, on which date, the argument

was heard and judgment was pronounced on 18.07.2017.

The learned Trial Court passed an ex­parte decree.

Subsequently, the appellants herein – original

defendant Nos. 2 and 3 filed CMA No. 31/2018 under

Order IX Rule 13 of CPC to set aside the ex­parte decree

along with an application under Section 5 of the Limitation

Act to condone the delay in filing the CMA. The appellants

herein – original defendant Nos. 2 and 3 also prayed to

allow the filing of written statement and to take up the suit

3
on merits. By order dated 05.12.2019, the learned Trial

Court allowed the CMA by condoning the delay.

2.2 Feeling aggrieved and dissatisfied with order dated

05.12.2019 passed by the learned Trial Court allowing

CMA No. 31/2018, the original plaintiff – respondent No. 1

herein filed CMP No. 1423/2019 before the High Court. By

the impugned judgment and order, though the High Court

has confirmed the order passed by the learned Trial Court

condoning the delay and setting aside the ex­parte decree,

the High Court has also passed an order that on setting

aside the ex­parte decree and consequently the suit being

restored to file, defendant Nos. 2 and 3 cannot be

permitted to file their written statement and that they can

only take part in the hearing of the suit without

propounding their own case. The High Court has also

observed that they can advance their argument on the

basis of the materials available on record only.

2.3 Feeling aggrieved with the judgment and order passed by

the High Court to the extent of observing that defendant

Nos. 2 and 3 cannot be permitted to file their written

4
statement and that they can only take part in the hearing

of the suit without propounding their own case, original

defendant Nos. 1 to 3 – appellants herein have preferred

the present appeals.

3. Learned counsel appearing on behalf of the appellants

herein – original defendant Nos. 2 and 3 has vehemently

submitted that in the facts and circumstances of the case

the High Court has committed a grave error in passing the

order that appellants herein ­ defendant Nos. 2 and 3

cannot be permitted to file their written statement.

3.1 It is vehemently submitted that once the suit was restored

to file by setting aside the ex­parte decree which has been

upheld by the High Court, thereafter, it was not open for

the High Court to pass a further order that on setting

aside the ex­parte decree and restoring the suit to file,

defendant Nos. 2 and 3 cannot be permitted to file their

written statement.

3.2 It is submitted that what was challenged before the High

Court was the order passed by the learned Trial Court

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condoning the delay and setting aside the ex­parte decree.

It is submitted that therefore, the impugned order passed

by the High Court observing that defendant Nos. 2 and 3

cannot be permitted to file their written statement is

beyond the scope and ambit of CMP filed before the High

Court.

3.3 It is submitted that once the suit was restored to file by

setting aside the ex­parte decree and no order was passed

by the learned Trial Court on whether the written

statement be permitted to be taken on record or not, the

High Court ought not to have observed anything on the

same and ought to have left it to the learned Trial Court.

3.4 It is submitted that in the present case no order was

passed by the learned Trial Court on whether the written

statement be taken on record or not, the decisions relied

upon by the High Court in the case of Sangram Singh Vs.

Election Tribunal, Kotah and another; AIR 1955 SC 425

and Arjun Singh Vs. Mohindra Kumar and others; AIR

6
1964 SC 993 shall not be applicable to the facts of the

case on hand.

4. Present appeals are vehemently opposed by Shri Nitesh

Bhandari, learned counsel appearing on behalf of

respondent No. 1 herein – original plaintiff.

4.1 It is submitted that despite the fact that a number of

opportunities were given to defendant Nos. 2 and 3 to file

their written statement between 2012 to 2017 (till the ex­

parte decree was passed). Hence, the High Court was

justified in passing the impugned order by observing that

defendant Nos. 2 and 3 cannot be permitted to file their

written statement on setting aside the ex­parte decree.

4.2 It is submitted that as held by this Court in the case of

Sangram Singh (supra) and Arjun Singh (supra) when an

ex­parte 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 and he would be

debarred from filing any written statement in the suit. It is

submitted that therefore, the impugned order passed by

the High Court is absolutely in consonance with the law

7
laid down by this Court in the case of Sangram Singh

(supra) and Arjun Singh (supra).

5. We have heard learned counsel appearing on behalf of the

respective parties at length.

6. At the outset it is required to be noted that when the

appellants – original defendant Nos. 2 and 3 filed CMA No.

31/2018 under Order IX Rule 13 of CPC they prayed to

condone the delay as well as to set aside the ex­parte

decree and also to allow filing of the written statement and

to take up the suit on merits. By order dated 05.12.2019,

the learned Trial Court allowed CMA No. 31/2018 and

condoned the delay and set aside the ex­parte decree

subject to cost of Rs. 25,000/­ each to be paid to the

plaintiff. From order dated 05.12.2019, it does not appear

that any further order was passed by the learned Trial

Court on whether by setting aside the ex­parte decree,

defendant Nos. 2 and 3 may be permitted to file written

statement or not. The order passed by the learned Trial

Court condoning the delay and setting aside the ex­parte

8
decree has been confirmed by the High Court by passing

the impugned judgment and order. However, the High

Court has observed that on setting aside the ex­parte

decree and restoring the suit to file, defendant Nos. 2 and

3 cannot be permitted to file the written statement.

Reliance is placed upon the decisions of this Court in the

case of Sangram Singh (supra) and Arjun Singh (supra).

However, it is true that as per the law laid down by this

Court in the case of Sangram Singh (supra) and Arjun

Singh (supra) when an ex­parte decree is set aside and the

suit is restored to file, the defendants cannot be relegated

to the position prior to the date of hearing of the suit when

he was placed ex­parte. 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. However, in our view, in the facts and

circumstances of the case, the decisions of this Court in

the case of Sangram Singh (supra) and Arjun Singh

(supra) shall not be fully applicable. In the present case by

9
filing the CMA under Order IX Rule 13, appellants herein –

original defendant Nos. 2 and 3 not only prayed to set

aside the ex­parte decree but also prayed to allow them to

file written statement. As observed above, there was no

order and/or decision by the learned Trial Court on the

second prayer, namely, to allow defendant Nos. 2 and 3 to

file written statement or not. Therefore, once the ex­parte

decree is set aside and the suit is restored to file and even

as per the decisions of this Court in the case of Sangram

Singh (supra) and Arjun Singh (supra) 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 learned 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 CMA

No. 31/2018.

As observed hereinabove, there was no order passed by

the learned Trial Court on the specific prayer made by

defendant Nos. 2 and 3 to allow them to file written

statement. The learned Trial Court while passing order

10
dated 05.12.2019 condoned the delay and set aside the ex­

parte decree and the said order of condonation of delay

and setting aside the ex­parte 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 to

the extent of observing that defendant Nos. 2 and 3 cannot

be permitted to file their written statement is

unsustainable and the issue/question whether defendant

Nos. 2 and 3 may be allowed to file their written statement

or not, shall have to be remanded to the learned Trial

Court.

7. In view of the above and for the reasons stated above, the

impugned judgment and order passed by the High Court to

the extent of observing that though the ex­parte decree is

set aside, defendant Nos. 2 and 3 cannot be permitted to

file their written statement is hereby quashed and set

11
aside. The learned Trial Court to consider the prayer of

defendant Nos. 2 and 3 whether to allow/permit them to

file their written statement or not and as and when such

question/issue is considered by the learned Trial Court, it

will be open for respondent No. 1 – original plaintiff to

resist the same and the learned Trial Court to consider the

question/issue whether on setting aside the ex­parte

decree, defendant Nos. 2 and 3 may be allowed/permitted

to file their written statement, in accordance with law and

on its own merits for which we have not expressed

anything in favour of either party. The learned Trial Court

to consider the issue/question with respect to the prayer

of defendant Nos. 2 and 3 to allow them to file their written

statement within a period of three months from the first

date of hearing of the suit, which shall be within a period

of one month from today. The present appeals are allowed

to the aforesaid extent. In the facts of the case, there shall

be no order as to costs.

…………………………………J.

                                      (M. R. SHAH)

New Delhi,                            …………………………………J.
17th May, 2022                        (B.V. NAGARATHNA)

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