Under Order IX Rule 13 of the CPC, the Trial Court can decide the defendant's prayer of filing a written statement after setting aside the ex parte decree.

Under Order IX Rule 13 of the CPC, the Trial Court can decide the defendant's prayer of filing a written statement after setting aside the ex parte decree.

The Supreme Court in Sudhir Ranjan Patra (D) vs Himansu Sekhar Srichandan observed that 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.

In the instant case, the facts say that it was restored but the defendants weren’t allowed to propound their case. The Petitioners had cited Sangram Singh Vs. Election Tribunal, Kotah and another [1] and Arjun Singh Vs. Mohindra Kumar and others [2] to contend that 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.

The trial court accepted their submissions. The matter went in appeal but the High Court refused to set aside the trial court’s order.

The Supreme Court observed that “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 crossexamine the witness of the plaintiff and address arguments.”

However, The Court also observed that these precedents are not squarely applicable in the instant case and held that,  “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 crossexamine the witness of the plaintiff and address arguments.”

 

[1] AIR 1955 SC 425

[2] AIR 1964 SC 993