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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. These were upheld by the Hight Court of Orissa through the learned bench of Justice K.R. Mohapatra in the case of Himansu Sekhar Srichandan v. Sudhir Ranjan Patra (since dead) Jully Patra & Ors, (CMP No.1423 of 2019).

The crux of the case is the plaintiff seeks a declaration of his right, title, interest and ownership of the property in the suit schedule and a declaration declaring that Respondent number 1 does not have the authority to withdraw the case land. Respondent number 2 and 3 immediately sought time to file a written statement. However, despite repeated postponements, they did not file a written statement. In the end, matter proceeded ex parte and decree was drawn. Next, Defendants number 2 and 3 have filed an application under Order IX Rule 13 CPC to set aside the ex-parte decision mentioned above and an application for condonation of the delay. The Senior Civil Judge, after considering the circumstances described by the parties, allowed the delay and set aside the announcement of the ex party. The same was challenged in this suit.

The petitioner has submitted that the application limit under Order IX Rule 13, CPC is regulated under Article 123 of the Limitation Act, which provides two ways to determine the starting point of limitation. The first is when the summons was not properly served on the Respondent. Secondly, if the summons is properly served, the respondent must show sufficient reason to satisfy the Court for not appearing on the date on which the trial was called. It was argued that in a speedy trial, Defendant No. 2 and 3 appeared in court through their Attorney and despite the adjournment several times he did not include his written statement. The court while exercising its discretion will not be able to set aside the obligatory requirements under the provision. In a speedy case, the Chief Justice did not consider the conduct of the party seeking independence or negotiating legal requirements while approving the disputed order. Finally, it depends on the scale of the State of Orissa & Anr. v. Smt. Sitanjali Jena, ((2016) 121 CLT 492), has filed a motion to set aside the ex-party decision even though the case has been returned to the file, but the Defendants cannot be adjourned before the date of the hearing. They will be barred from completing the written statement.

The attorney representing the defendant withholding that ‘sufficient reason’ under the Limitations Act should be construed as a touchstone of pragmatic boundaries as set out in Nakul Swain v. Jogendra Das, (1996 (1) OLR 534). The expression ‘reason enough they should get free construction’ in order to promote greater justice, as set out in the case of GMG Engineering Industries and Others v. ISSA Green Power Solution and Ors., ((2015) 15 SCC 659). In addition, he argued that the reduction law is based on public policy. Restrictions are not intended to infringe on the rights of parties found under the law as they are held by the N Supreme Court. Balakrishnan v. M. Krishnamuthy, ((1998) 7 SCC 123). There may be some error on the part of the plaintiff concerned. That alone is not enough to deny his plea and close the door on him.

The learned bench of Justice K.R. Mohapatra relying on Sangram Singh v. Election Tribunal, Kotah & Anr., (AIR 1955 SC 425) and Arjun Singh v. Mohindra Kumar and Ors., (AIR 1964 SC 993), concluded that on a close reading of the impugned order, it appears that learned Senior Civil Judge has made his best endeavour and discussed the matter in detai with reference to materials available on record to set aside the ex parte decree. Hence, no interference is warranted with regard to setting aside the ex parte decree. However, it was clarified that the Defendant Nos. 2 and 3 cannot be permitted to file their written statement. They can only take part in the hearing of the suit without propounding their own case. However, they can advance their argument on the basis of the materials available on record only.

Click here to read the judgement

Judgement reviewed by Himanshu Ranjan