Supreme court: Defendant Can Cross-Examine Plaintiff Even If Suit Is Proceeding Ex-Parte Against Him & Written Statement Isn't Filed

On 1st July, 2002, the defendants applied for setting aside theorder dated 3rd May, 2002 by which their defence was struck out. The application proceeds on the allegation that on 3rd May, 2002, the Court proceeded to strike out the defendants' defence without giving them an opportunity of being heard and the hearing was conducted ex parte. Very interestingly, a reply was filed to the said application by the plaintiffs in which a stand has been taken that as the suit was directed to proceed ex parte, there was no occasion to give an intimation to the defendants or their counsel that the application will be taken up on 3rd May, 2002. Therefore, it is an accepted position that the application for striking out the defence of the defendants was taken up on the cause list on 3rd May 2002 without issuing notice to the defendants, though on 22nd April, 2002, the next date was already fixed as 30th May 2002.

The application for setting aside the order dated 3rd May, 2002 was rejected. At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit isordered to proceed ex parte against him, the limited defence

available to the defendant is not foreclosed. A defendant can

always cross-examine the witnesses examined by the plaintiff to

prove the falsity of the plaintiff's case. A defendant can always

urge, based on the plaint and the evidence of the plaintiff, that

the suit was barred by a statute such as the law of limitation.

Therefore, notwithstanding an order passed earlier to proceed ex

parte, while deciding an application for striking out the defence,

it was the duty of the Court to give an opportunity of being heard to the defendants. However, that was not done. As the suit was fixed on 30th May, 2002, the defendants were entitled to a notice that the suit would be taken up on an earlier date for hearing the application for striking out the defence. When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

1. The appellants are the defendants in a suit filed by the first

respondent and one Shanti Devi, who is no more and has been shown

as the third respondent in these Appeals. For convenience, we are

referring to the parties with reference to their status in the

suit. We have heard the learned counsel for the parties.

2. The suit was filed on 8th November, 2001 for possession of the

property, more particularly described in the schedule (suit

property). The allegation in the suit is that the first defendant,

the State of Uttaranchal (now Uttarakhand), was a tenant of the

plaintiffs in respect of the suit property at a monthly rent of

Rs.86,232/- (Rupees Eighty-six Thousand Two Hundred and Thirtytwo), which was fixed by an order dated 18th May, 1999 passed by the

learned 3rd Additional District Judge, Dehradun. The allegation is

that though the rent was fixed with effect from 1st September, 1993,

the first defendant did not pay the rent. Therefore, the

plaintiffs issued a notice of termination of tenancy under Section

106 of the Transfer of Property Act, 1882. As the defendants failed

to comply with the said notice, the suit for eviction was filed.

3. It appears from the record of the Trial Court that after the

service of summons on the defendants, they appeared and applied for

adjournments for filing the written statement. The first such

application was made on 13th December 2001. Subsequent

applications were made for adjournments. On 22nd April 2002, the

learned trial Judge did not accede to the prayer for grant of

further time and passed an order that the suit would proceed ex

parte and a date for ex parte hearing, i.e., 30th May 2002, was

fixed. At this stage, we may also note that the plaintiffs also

made an application to strike out the defence of the defendants.

The said application was filed on 18th February 2002. On the said

application, the Advocate for the plaintiffs made an endorsement in

the margin that as there was no advocate representing the

defendants, a copy of the application was attached to the

application. Though the date for the ex parte hearing was already

fixed as 30th May 2002, on 3rd May 2002, the plaintiffs made an

application to the Trial Court for passing an order on the

application dated 18th February 2002 for striking out the

defendants' defence. Interestingly, on the same day, the plaintiffs

moved another application stating that the plaintiffs may be

permitted to lead their ex parte evidence through affidavits. It

appears that on 3rd May, 2002, the Trial Court allowed the

application for striking out the defence. Subsequent facts

narrated in this judgment would show that the suit was taken on the

cause list on that day without any notice to the defendants.

4. On 16th May, 2002, an application was moved by the defendants

for setting aside the order dated 22nd April, 2002. In the

application, the averments were made that on 22nd April, 2002, the

District Judge before whom the suit was pending, was holding a Camp

Court at Mussoorie. We may note that the suit was pending in the

Court at Dehradun. The contention in the said application was that

as the learned District Judge was unavailable, the defendants were

under the impression that the suit would not proceed. In fact, in

the affidavit filed in support of the said application by one

Mukesh Kumar Malik on behalf of the Superintendent of Police,

Dehradun, it is stated that he was present on 22nd April 2002 till

4:00 p.m., but the case was not called out. On 30th May, 2002, the

application for setting aside the order directing the suit to

proceed ex parte was rejected. At this stage, we may note here

that in the proceedings of 22nd April 2002, it was recorded that on

that day, the lawyers had abstained from the Court work, and the

learned Presiding Judge was on a tour of Mussoorie for holding a

camp. There is no mention in the proceedings of 22nd April, 2002

that any in charge Judicial Officer passed an order to proceed with

the suit ex parte. To the specific allegations made by the

defendants in the application for setting aside the ex parte order

that the Judicial Officer was not available, in the reply filed by

the plaintiffs in paragraph 4, all that is stated is that the

contentions that on 22nd April, 2002, the learned District Judge had

proceeded to Mussoorie, are misconceived and the provisions of the

Assam and Agra Civil Courts Act are apparent in this respect.

5. On 1st July, 2002, the defendants applied for setting aside the

order dated 3rd May, 2002 by which their defence was struck out. The application proceeds on the allegation that on 3rd May, 2002, the

Court proceeded to strike out the defendants' defence without

giving them an opportunity of being heard and the hearing was

conducted ex parte. Very interestingly, a reply was filed to the

said application by the plaintiffs in which a stand has been taken

that as the suit was directed to proceed ex parte, there was no

occasion to give an intimation to the defendants or their counsel

that the application will be taken up on 3rd May, 2002. Therefore,

it is an accepted position that the application for striking out

the defence of the defendants was taken up on the cause list on

3rd May 2002 without issuing notice to the defendants, though on

22nd April, 2002, the next date was already fixed as 30th May 2002.

The application for setting aside the order dated 3rd May, 2002 was

rejected. At this stage, we must clarify the legal position. Even

if a defendant does not file a written statement and the suit is

ordered to proceed ex parte against him, the limited defence

available to the defendant is not foreclosed. A defendant can

always cross-examine the witnesses examined by the plaintiff to

prove the falsity of the plaintiff's case. A defendant can always

urge, based on the plaint and the evidence of the plaintiff, that

the suit was barred by a statute such as the law of limitation.

Therefore, notwithstanding an order passed earlier to proceed ex

parte, while deciding an application for striking out the defence,

it was the duty of the Court to give an opportunity of being heard

to the defendants. However, that was not done. As the suit was

fixed on 30th May, 2002, the defendants were entitled to a notice

that the suit would be taken up on an earlier date for hearing the

application for striking out the defence. When the defendants had

appeared in the suit, the act of preponing the date without notice

to them or their advocate was completely illegal and contrary to

elementary principles of natural justice. Therefore, it follows

that the order striking out the defendants' defence is completely

illegal, and the said order deserves to be set aside.

6. There is something further which must be noted. As can be

seen from the record, the plaintiffs moved an application on 2nd

August, 2002 to amend the description of the suit property. The

endorsement on the application records that ‘the case is proceeding

ex parte against the defendants’. Therefore, a copy of the said

application was not served upon the defendants. As seen from the

proceedings, the application was allowed on 2nd August, 2002.

Thereafter, the suit was decreed on 24th August, 2002. It is true

that before the application for amendment of the plaint was

allowed, the defendants' defence was already struck out. Even if

the defendants' defence was struck out, the defendants were

entitled to a copy of the amended plaint. What was struck out was

the right to defend the suit as unamended. Whether the subsequent

plaint will affect the earlier order of striking out the defence

will depend upon the nature of the amendment. However, even a copy

of the amended plaint was not served on the defendants.

7. The defendants challenged the ex parte decree by filing a

statutory revision application under Section 25 of the Provincial

Small Cause Courts Act, 1887, before the learned Single Judge of

the High Court. By the impugned judgment, the learned Single Judge

rejected the said revision application without noticing the glaring

facts borne out from the record which we have reproduced above. A

review of the said order of the learned Single Judge was sought.

However, the same was dismissed on 4th January, 2011. However, the

defendants did not challenge the decree or the order passed on the

revision application or review for three years. Instead, they were

advised to raise objections under Section 47 of the Code of Civil

Procedure, 1908 in the execution proceedings.

8. The learned senior counsel appearing for the plaintiffs

submitted that the defendants' conduct needs to be deprecated. The

revenue entries were illegally altered to enable them to raise a

contention regarding the lack of title on the part of the

plaintiffs. Even the State Government prosecuted the plaintiffs.

9. Now, the clear picture which emerges is that the suit was

decreed ex parte without giving proper opportunity to the

defendants to defend themselves. On 22nd April 2002, when the order directing that the suit would proceed ex parte was passed, the date fixed for ex parte hearing was 30th May 2002. On that date, the

defendants could have appeared and applied for setting aside the

said order. The Court could have always favourably considered that

application by putting the defendants to conditions. However,

without waiting till 30th May, 2002, on 3rd May 2002, without issuing notice to the defendants, the suit was taken up by the Trial Court, and an order of striking out the defendants' defence was passed, obviously, without hearing the defendants. Therefore, an

illegality has been associated with the conduct of the suit

proceedings and the manner in which the ex parte decree was passed.

Consequently, we propose to set aside the orders dated 22nd April,

2002 and 3rd May, 2002 and relegate the suit to that stage.

10. There is another aspect of the matter. On 18th May 1999, the

3rd Additional District Judge, Dehradun, passed an order in an

Appeal directing the defendants to pay rent at Rs.86,232/ (Rupees

Eighty-six Thousand Two Hundred and Thirty-two) per month. The

High Court and this Court confirmed the said order. The

defendants' liability under the said order was to pay rent at

Rs.86,232/- per month from 1st September, 1993. The learned

Attorney General for India, on instructions of the State

Government, states that the rent at the said rate has been

deposited up to date. We take the statement on record.

11. Much water has flown after the rent was fixed at the rate of

Rs.86,232/- per month on 18th May, 1999. The fact remains that the

proceedings were delayed due to some default on the part of the

defendants. Therefore, as a condition for setting aside the ex

parte decree, we propose to direct the State Government to pay an

ad hoc amount at the rate of Rs.1,00,000/- (Rupees One Lakh) per

month from 14th July, 2014 and continue to pay the said amount till

the disposal of the suit. The deposit will be subject to the

outcome of the suit. The defendants will be entitled to an

adjustment of the amounts they paid at the rate of Rs.86,232/- per

month. We propose to grant two months to the defendants to pay the

balance amount payable up to date at the rate of Rs.1,00,000/- per

month from 14th July, 2014.

12. Hence, we set aside the impugned orders and partly allow the

Appeals with the following directions:

(i) The ex parte decree dated 24th August, 2002 passed by

the learned District and Session Judge, Dehradun, in SCC Suit

No.24/2001 is hereby set aside. The suit is restored to the

file of the learned District and Session Judge, Dehradun,

subject to the condition of the appellants/defendants

depositing an ad hoc amount at the rate of Rs.1,00,000/-

(Rupees One Lakh) per month from 14th July, 2014 with the Trial

Court within a period of two months from today. As stated

earlier, the appellants/defendants will be entitled to an

adjustment of Rs.86,232/- (Rupees Eighty-six Thousand Two

Hundred and Thirty-two) per month deposited by them for the

said period. We make it clear that on the failure of the

appellants/defendants to deposit the said amount within the

stipulated period, the ex parte decree shall stand revived;

(ii) If the direction mentioned above is complied with,

even the orders dated 22nd April, 2002 and 3rd May, 2002 will

stand set aside;

(iii) The defendants shall continue to deposit the amount

at the rate of Rs.1,00,000/- (Rupees One Lakh) per month till

the disposal of the suit;

(iv) In the event the compliance is made by the

appellants/defendants, we direct that the restored suit shall

be listed before the learned District and Session Judge,

Dehradun in the morning on 25th November, 2024. We make it

clear that the defendants and the plaintiffs shall be under an

obligation to appear before the Court of the learned District

and Session Judge, Dehradun, on that day, and no further

notice shall be served upon them. We clarify that on the date

of appearance, the appellants/defendants shall file a reply to

the application for striking out the defence, and no further

time shall be granted to them for that purpose. If the

appellants/defendants fail to file a reply to the application

for striking out their defence on that day, the Trial Court

will be justified in proceeding with the hearing of the said

application without the reply of the appellants/defendants;

(v) Only after deciding the application for striking out the

defence, depending upon the outcome of the said application,

the Trial Court will pass orders regarding permitting the

appellants/defendants to file written statement;

(vi) The amounts deposited in this Court at the rate of

Rs.86,232/- (Rupees Eighty-six Thousand Two Hundred and

Thirty-two) per month with accrued interest thereon shall be

transferred by the Registry of this Court to the Trial Court

at Dehradun after expiry of the present fixed deposit. We

direct the Trial Court to invest the amount which may be

deposited by the appellants/defendants in terms of this

judgment and the amount which will transferred by the Registry

of this Court to the Trial Court in a fixed deposit with any

nationalised bank;

(vii) After the application for striking out the defence

is decided, it will be open for the plaintiffs to apply for

withdrawal of the amounts. The Trial Court shall decide the

said application on its own merits. All contentions on that

behalf are left open;

(viii) We make it clear that we have made no adjudication

on the merits of the controversy, including the title issue

raised by the appellants/defendants. The Trial Court shall

pass appropriate orders in accordance with the law in the

restored suit on its own merits;

(ix) We make it clear that as we have directed the

appellants/defendants to deposit the ad hoc amount at the rate

of Rs.1,00,000/- (Rupees One Lakh) per month, we are not

passing a separate order of costs;

(x) Considering the fact that the suit is of the year 2001,

it is obvious that the Trial Court will give necessary out of

turn priority for hearing the application for striking out the

defence. In the event the suit is required to be heard on

merits, the Trial Court will give the necessary priority to

the disposal of the suit, considering the fact that the suit

is of the year 2001;

(xi) In view of this judgment, the pending execution

application for execution of the decree will not survive.

However, if the ex parte decree is revived in terms of the

clause (i) above, the execution application shall proceed;

(xii) The findings recorded in this judgment are only for

the limited purposes of considering the legality and validity

of the ex parte order and the order by which the defence of

the defendants was struck out. This judgment will not affect

any other proceedings pending between the parties and all

contentions therein are left open;

(xiii) The Appeals are partly allowed on above terms; and

(xiv) The Registry is directed to immediately return the

record of the suit along with a copy of this judgment to the

Trial Court.

1. As the execution application has been disposed of in terms of

the judgment passed today in Civil Appeal Nos.2399-2401/2023, this

Appeal does not survive. The same is disposed of accordingly.

1. The compulsory acquisition of the property claimed by the

appellants was initiated by the State Government, which has been

set aside by the impugned judgment. The appellants cannot have any

grievance about setting aside the acquisition. Hence, no case for

interference with the impugned order is made out. The Appeal is,

accordingly, dismissed.

1. As the execution application has been disposed of in terms of

the judgment passed today in Civil Appeal Nos.2399-2401/2023, this

Appeal does not survive. The same is disposed of accordingly.

1. The application made by the appellant under Rule 97 Order XXI

of the Code of Civil Procedure, 1908, has been dismissed by the

executing Court on the ground that the appellant was not in

possession. It is an admitted position that the appellant was not

in possession. Therefore, we find no error in the view taken under

the impugned order. The Appeal is, accordingly, dismissed.

1. As the decree dated 24th August, 2002 has been set aside in

terms of the judgment in Civil Appeal Nos.2399-2401/2023, this

Appeal does not survive. The Appeal is disposed of accordingly by

keeping all the contentions in the restored suit expressly open.

1. Admittedly, this Appeal arises from the orders passed in the

execution of the decree dated 24th August 2002. Therefore, in view

of the judgment passed today in Civil Appeal Nos.2399-2401/2023

setting aside the decree dated 24th August 2002, this Appeal will

not survive, and the same is disposed of accordingly.

..........................J.

 (ABHAY S. OKA)

..........................J.

 (AHSANUDDIN AMANULLAH)

 ..........................J.

 (AUGUSTINE GEORGE MASIH)

NEW DELHI;

SEPTEMBER 12, 2024.

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