Case: Sudhir Ranjan Patra (Dead) thr. LRs. &amp; Anr Vs. Himansu Sekhar Srichandan &amp; Ors

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 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 exparte 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 ex-parte 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 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 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 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 ex-parte 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 ex-parte 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 ex-parte 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 ex-parte 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 ex-parte 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 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 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 crossexamine 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 filing the CMA under Order IX Rule 13, appellants herein – 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. 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 ex-parte 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 dated 05.12.2019 condoned the delay and set aside the exparte 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 ex-parte 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 ex-parte 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 ex-parte 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 ex-parte 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 ex-parte 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 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 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 crossexamine 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 filing the CMA under Order IX Rule 13, appellants herein – 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. 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 ex-parte 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 dated 05.12.2019 condoned the delay and set aside the exparte 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 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.