Order IX Rule 13 CPC | Defendant Can Only Take Part In Hearing After Ex-Parte Decree Against It Is Set Aside, Can't File Written Statement: Orissa HC

The Orissa High Court has reiterated that even after an ex parte decree is set aside under Order IX Rule 13 of the CPC, the defendant neither can be relegated to the original position nor can be allowed to file a written statement. While giving partial relief to the respondents, the Single Judge Bench of Justice K.R. Mohapatra cited the observation from the judgment in State of Orissa & Anr. v. Smt. Sitanjali Jena, (2016) 121 CLT 492, "…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. 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, adduce evidence and address argument." Brief Facts: The Petitioner sought for declaration of his right, title, interest and possession over the suit schedule land as well as for a decree to declare that Defendant No. 1 has no authority to alienate the suit land.The Defendant Nos. 2 and 3 entered appearance and sought time to file their written statement. However, in spite of several adjournments, they did not file a written statement. Finally, the matter proceeded ex parte and decree was drawn. Subsequently, the Defendants Nos. 2 and 3 filed an application under Order IX Rule 13 for setting aside the aforesaid ex parte decree along with an application for condonation of delay. The Senior Civil Judge, after taking into consideration the circumstances explained by the parties, condoned the delay and set aside the ex parte decree. The same was challenged in this petition. Contentions on behalf of the Petitioner: For the petitioner, it was submitted that the limitation for filing an application under Order IX Rule 13, CPC is governed under Article 123 of the Limitation Act, which provides two modes for determining the starting point of limitation. The first is when the summons is not duly served on the Defendant. The second one is, if summon is duly served, then the Defendant has to show sufficient cause to the satisfaction of the Court for his nonappearance on the date when the suit was called on for hearing.It was argued that in the instant case, Defendant Nos. 2 and 3 had entered appearance in the suit through their Advocate and in spite of several adjournments, did not file their written statement. Thus, they fall under the second contingency. It was submitted that no explanation having been offered by Defendants No. 2 and 3 for their non-appearance on the date when the suit was called on for hearing, the learned Senior Civil Judge has committed gross error in allowing the application under Order IX Rule 13. It was put-forth that while exercising power under Order IX Rule 13 CPC, the Trial Court is expected to exercise its discretion judiciously. The Court while exercising its discretion cannot brush aside the mandatory requirements under the provision. In the instant case, the Senior Civil Judge neither considered the demeanor of the party seeking such relief nor discussed about the requirements of law while passing the impugned order. Lastly, relying upon the ratio in the case of State of Orissa & Anr. v. Smt. Sitanjali Jena, (2016) 121 CLT 492, it was submitted that on setting aside an ex parte decree though the suit is restored to file, but the Defendants cannot be relegated back to the position prior to the date of hearing of the suit. They would be debarred from filing written statement. Therefore, even if the Court comes to a conclusion that the discretion exercised by learned Senior Civil Judge is legal and justified, still then the Defendant Nos. 2 and 3 cannot be permitted to file written statement and propound their own case in the suit. In view of the above, he prayed for setting aside the impugned order. Contentions on behalf of the Respondents: The counsel on behalf of the opposite parties contended that 'sufficient cause' under the Limitation Act has to be construed on the touchstone of pragmatic parameters as laid down in Nakul Swain v. Jogendra Das, 1996 (I) OLR 534. The expression 'sufficient cause' must receive 'liberal construction' so as to advance substantial justice, as laid down in the case of GMG Engineering Industries and Others v. ISSA Green Power Solution and Ors., (2015) 15 SCC 659. Further, he argued that the law of limitation is founded on public policy. Rules of limitation are not meant to destroy the rights of the parties available under law as held by the Apex Court in N. Balakrishnan v. M. Krishnamuthy, (1998) 7 SCC 123. There may be some lapses on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. Thus, when Senior Civil Judge has discussed the evidence available on record and found sufficient cause for condoning the delay in filing...

Order IX Rule 13 CPC | Defendant Can Only Take Part In Hearing After Ex-Parte Decree Against It Is Set Aside, Can't File Written Statement: Orissa HC

Jyoti Prakash Dutta

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