Saji Koduvath & Jojy George

Abstract

When a Defendant is Made Ex parte?

The relevant provisions of the CPC are the following –

• Order VI Rule 2 (plead material facts only and not evidence),
• Order VIII Rule 5 (discretion in the Court even when no Written Statement),
• Order VIII, Rule 10 (when a party fails to present written statement, the Court shall pronounce judgment against him)
• Order IX Rule 6 (If defendant absent, suit shall be heard ex parte),
• Order IX Rule 7 (If defendant is made ex-parte and he appears and assigns good cause, he may be heard as if he had appeared on the day, fixed for his appearance.
• Order XI Rule 21 (bars fresh suit on same cause of action if a suit is dismissed under r. 21),
• Order XVII rule 2 (These provisions enable the Courts to pass an exparte decree merely relying on the averments in the plaint, and without being supported by evidence).

Order VIII, Rule 10 CPC

Order VIII, Rule 10 reads as follows:

• “10. Procedure when party fails to present written statement called for by Court – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.”

Order IX Rule 7 CPC

Order IX Rule 7 CPC reads as under:

• “7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
• Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.”

The defendant can participate in the rest of the proceedings after setting him set ex-parte without recourse to the provisions of Order IX Rule 7. Therefore, he can

• (1) Cross-examine the plaintiff’s witnesses
• (2) Adduce evidence in defence and
• (3) Place arguments on the entire case.

Therefore, whether or not the defendant has filed Written Statement, he can point out the defects and weakness of the plaintiff’s case on law and facts; so also the pleadings of the plaintiff are defective and the facts are not properly proved.

In Hira Lal Sahu v. Suku Majhi (Jhk), 15 Feb 2018, it is held as under:

• “12. So far as the contention of the appellants regarding the defendants being illegally permitted to cross examine the witnesses of the plaintiffs even though the defendants have not filed any written statement is concerned, it is a settled principle of law that even if the defendant has not filed the written statement or his defence is struck off his right to cross-examine the witnesses of the Plaintiff is not taken away. The reason being as the Code of Civil Procedure envisages two consequences of not entering appearance. One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed. In that context, it will not be proper to impose more punishment than those two so explicitly stated by the Code of Civil Procedure. Therefore a defendant not filing the written statement can still appear when the suit is called on for hearing not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiff’s case on evidence that the court will not pass any decree in the plaintiff’s favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the court. Moreover filing of written statement is not the only way of defending a suit. A defendant may in a particular case choose to successfully defend a suit against him by cross-examination of the witnesses of the plaintiff and arguments.

In Siai Sinha v. Shivadhari Sinha. AIR 1972 Pat 81, Untwalia J. laid down the law as under:

• “The position of law in such a case is that a defendant, even without filing a written statement can take part in the hearing of the suit. He may cross-examine the plaintiff’s witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written statement. It should be further made clear that if a defendant files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff.” (Quoted in Chuni Lal Chowdhary v. Bank of Baroda, 1981 JKLR 501; 1981 KashLJ 461)

In Chunni Lal Chowdhary v. Bank of Baroda, AIR 1982 J & K 93, the view taken by Untwalia, J., in Siai Sinha,  AIR 1972 Pat 81, was followed. It was observed by the J&K High Court as under:

• “Where the Court decides to proceed to hearing of the suit without the written statement that would not debar the defendant from taking part in further proceedings of the case. His participation would, however, be hedged in by several limitations. He will not be able either to cross-examine the plaintiff’s witnesses or to produce his own evidence with regard to any questions of fact which he could have pleaded in the written statement. He will, however, be competent to cross-examine the plaintiff’s witnesses in order to demolish their version of plaintiff’s case.” (Quoted in Ganpat Chand vs Jeth, AIR 1983 Raj 146)

In Balraj Taneja v. Sunil Madan, (1999)8 SCC 396, the Supreme Court, quoting Chuni Lal Chowdhry v. Bank of Baroda, AIR 1982 J&K 93, approved the law laid down in Siai Sinha v. Shivadhari Sinha, AIR 1972 Pat 81. The Apex Court in Balraj Taneja v. Sunil Madan, held that the Court shall not act blindly upon the admission of a fact made by the defendant in his written statement and the court shall not proceed to pass judgment blindly merely because a written statement has not been filed by the defendant. Before passing the judgment against the defendant the court must see whether a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is only when the court is satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed written statement.

In T.  Sheeja Vs. C. P.  Balakrishnan, 2018-3 KerLT 1102,  2018-4 KHC 415, ILR  2018-3 Ker 880, Kerala High Court held as under:

• “9. In the absence of denial of plaint averments, the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. However, in a case in which the defendant is set ex parte, the trial court shall scrutinize the available pleadings and documents, consider the evidence adduced and decide whether the claim made by the plaintiff is proved [See Ramesh Chand Ardawatiya v. Anil Panjwam, A.I.R. 2003 S.C. 2508].
• 10. Even in a case where the defendant is set ex parte, the judgment shall reflect the facts of the case and the controversy involved and tried to be settled by the court. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit shall be reflected clearly in the judgment. Even in a case where the written statement is not filed by the defendant, the court must be satisfied that there is no fact which need to be proved inspite of deemed admission by the defendant. The court must give reasons for passing such judgment, however, short it be. By reading the judgment, a party should be able to understand what were the facts and circumstances on the basis of which the court proceeded and what is the reason for decreeing the suit [See Shantilal Gulabchand Mutha v. Tata Engineering Locomotive Company, (2013) 4 SCC 396].
• 11. Absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff’s claim. The factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. The court is duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted [See Maya Devi v. Lalta Prasad, A.I.R. 2014 S.C. 1356].”

Court has discretion to require any fact in the plaint to be proved

In Dharam Pal Gupta v. District Judge, Etah, the Allahabad High Court held as under:

• “Therefore, reading Order VIII, R. 10, C.P.C. along with O. VIII, R. 5, C.P.C., it seems that even though the filing of written statement has been made obligatory and the Court has now been empowered to pass a judgment on the basis of the plaint on the ground that no written statement has been filed by the defendant still, the discretion of the Court has been preserved and despite the non-filing of the written statement the Court may pass any other order as it may think fit (as laid down in O. VII R. 10) or the Court may in its discretion require any particular fact mentioned in the plaint to be proved as laid down in Order VIII, R. 5 sub-rule (2) C.P.C.” (Quoted in Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381; 1999 8 SCC 396)

Even When Defence is Struck Off, Defendant can Cross-Examine Plaintiff’s Witnesses

In Paradise Industrial Corpn. v. Kiln Plastics Products, (1976) 1 SCC 91, the Supreme Court, held that even when the defence of the defence was struck off, by putting the defendant with the similar handicap as a defendant when debarred from filing the written statement, defendant is entitled to appear and cross-examine the plaintiff’s witnesses and can submit that even on the basis of the evidence on behalf of the plaintiff and why a decree cannot be passed against him. The same view was taken in Babbar Sewing Machine Co. v. Trilok Nath Mahajan, (1978) 4 SCC 188.