Nanda Dulal Pradhan vs Dibakar Pradhan

Nanda Dulal Pradhan & Anr. ...Appellants

Versus

Dibakar Pradhan & Anr. ...Respondents

JUDGMENT

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 ex­parte judgment and decree would serve no purpose as

the defendants cannot lead evidence in the absence of written Signature Not Verified Digitally signed by R

statement filed by them and consequently setting aside the Natarajan Date: 2022.07.11 17:11:58 IST Reason:

order passed by the First Appellate Court who allowed the

1 appellants herein – original defendant nos. 2 and 3 to adduce

the evidence apart from setting aside ex­parte 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

2 learned Trial Court passed an ex­parte 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 ex­parte judgment and decree. The

learned Trial Court dismissed the said application and refused

to set aside the ex­parte judgment and decree. Hence

defendant nos. 2 & 3 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 ex­parte

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 affording sufficient opportunity to the parties to

adduce their respective evidence and rebuttal evidence.

Feeling aggrieved and dissatisfied with the order passed by the

First Appellate Court in allowing the appeal and setting aside

the ex­parte judgment and decree and the order directing that

the matter be disposed of afresh in accordance with law after

affording adequate opportunity to the parties to adduce their

respective evidence and rebuttal evidence, the original plaintiff

filed the present petition under Articles 226 and 227 of the

3 Constitution of India before the High Court. By the impugned

judgment and order and without considering and/or

observing anything on the findings recorded by the First

Appellate Court on whether there was a sufficient cause made

out to set aside the ex­parte judgment and decree, the High

Court has set aside the order passed by the First Appellate

Court setting aside the ex­parte judgment and decree solely

on the ground that as no written statement was filed on behalf

of the defendant nos. 2 & 3 the reopening of the suit would

become futile. Thereby the High Court has set aside the order

passed by the First Appellate Court setting aside the ex­parte

judgment and decree.

2.1 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, the original

defendant nos. 2 & 3 have preferred the present appeal.

3. Having heard learned counsel for the respective parties

and considering the order passed by the First Appellate Court

setting aside the ex­parte judgment and decree and observing

that on restoration of the suit the same be disposed of after

affording opportunities to the parties to adduce their

4 respective evidence and rebuttal evidence, the same was

absolutely in consonance with the law laid down by this Court

in the case of Sangram Singh versus Election Tribunal, AIR

1955 SC 425 and Arjun Singh versus Mohindra Kumar,

AIR 1964 SC 993.

3.1 At this stage it is required to be noted that as such the

First Appellate Court gave specific findings while setting aside

the ex­parte judgment and decree that the defendant nos. 2 &

3 have made out a sufficient cause for setting aside the ex­

parte judgment and decree. But while passing the impugned

judgment and order the High Court has not at all dealt with

and considered the findings recorded by the First Appellate

Court, recorded while setting aside ex­parte judgment and

decree. The High Court has set aside the order passed by the

First Appellate Court solely on the ground that as the

defendant nos. 2 & 3 did not file the written statement and

contested the suit, the reopening of the suit would become

futile. However, as observed and held by this Court in the

case of Sangram Singh (supra) on setting aside the ex­parte

decree and on restoration of the suit the parties to the suit

5 shall be put to the same position as they were at the time

when the ex­parte 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 cross­examine the witnesses. In that view of the matter

the impugned judgment and order passed by the High Court

is unsustainable. Still, on setting aside the ex­parte judgment

and decree, though the defendants who had not filed the

written statement, can be permitted to participate in the suit

and cross­examine the witnesses. Therefore, the High Court

is not right in observing that as no written statement was filed

by the defendants, the reopening of the suit by setting aside

ex­parte judgment and decree will become futile. As observed

hereinabove the High Court has not at all observed anything

on the correctness of the order passed by the First Appellate

Court setting aside the ex­parte judgment and decree on

merits.

4. In view of the above and for the reason stated above the

impugned judgment and order passed by the High Court is

6 hereby set aside. The order passed by the First Appellate

Court setting aside the ex­parte judgment and decree and

restoring the suit is hereby restored. However, it is observed

that on restoration of the suit, the defendant nos. 2 & 3 shall

not be permitted to file the written statement, as though

number of opportunities were given earlier, they did not file

the written statement. However, at the same time they may

be permitted to participate in the suit and cross­examine the

witnesses and make submissions on merits. Present appeal is

partly allowed to the aforesaid extent. However, in the facts

and circumstances of the case there shall be no order as to

costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA) New Delhi, July 11, 2022.

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