A Bench headed by Justice M. R. Shah and Justice B. V. Nagarathna while dealing with an issue under Order IX Rule 13 CPC has held, "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."

In this case, the Original Petitioner (Respondent) had filed a suit for declaration of his absolute right over the suit scheduled property with a prayer to issue a permanent injunction against the Defendants. Defendant Nos. 2 & 3 despite seeking several adjournments failed to file a written statement. Consequently, issues were framed by the Trial Court. Thereafter, the plaintiff filed evidence, Defendant Nos. 2 & 3 were called absent. The Trial Court passed an ex-parte decree.

Original Defendant (Appellants) Nos. 2 & 3 filed a CMA under Order IX Rule 13 CPC and an application under Section 5 of the Limitation Act, for condonation of delay in filing the CMA. The Defendants further prayed to allow the filing of a written statement. The Trial Court allowing the CMA, condoned the delay while staying mute on the matter of filing of written statement by the defendants.

Aggrieved by the Trial Court's order, the Original Petitioner (Respondent) approached the High Court. Confirming the order passed by the Trial Court, the High Court passed an order stating that the ex-parte decree is set aside with Defendant Nos. 2 & 3 not being permitted to file written statements.

Dissatisfied with the High Court's Order, Defendant Nos. 2 & 3 approached the apex court.

Counsel Shri Nitesh Bhandari appeared for the Original Petitioner (Respondent) before the Supreme Court.

The Bench observed that with the Trial Court not passing any order/decision on allowing Defendant Nos. 2& 3 to file written statement or not, "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."

Held – On hearing the Counsels representing the Appellants and the Respondent, it was adjudged that –

    • While the High Court's decision to set aside the decree and condonation of delay based on the decree of the Trial Court is valid, further observations on Defendant Nos. 2 & 3 not being permitted to file their written statement is beyond the scope and ambit of the CMP filed before the High Court.
    • The Order of the High Court to the extent of observing that though the ex-parte decree is set aside, Defendant Nos. 2 & 3 cannot be permitted to file their written statement being unsustainable is quashed and set aside.
    • Trial Court to consider whether to allow/permit Defendant Nos. 2 & 3 to file their written statement or not, within one month from the date of the order issued by the Apex Court.


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Supreme CourtJustice MR ShahJustice BV NagarathnaOrder IX Rule 13 CPCOrissa High Court

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