Case Note & Summary
The petitioner, original defendant in R.C.S. No. 96 of 2007, challenged the ex-parte decree passed by the Civil Judge, Junior Division, Chalisgaon. The respondent/plaintiff had filed the suit for possession of encroached area. The defendant appeared and filed a written statement on 28.09.2007. On 20.09.2008, the trial court dismissed the suit for default due to non-prosecution by the plaintiff. However, on 24.09.2008, the court restored the suit without any notice to the defendant. Subsequently, the court closed the defendant's right to cross-examine the plaintiff's witnesses and decreed the suit ex-parte. The defendant filed a revision petition before the High Court. The High Court held that the restoration of the suit without notice to the defendant and the subsequent ex-parte decree violated principles of natural justice. The court noted that the defendant had appeared and filed a written statement, and was entitled to an opportunity to cross-examine the plaintiff's witnesses. The High Court allowed the petition, set aside the ex-parte decree, and restored the suit to its original position, subject to payment of costs of Rs. 1,000 to the plaintiff. The trial court was directed to decide the suit expeditiously.
Headnote
A) Civil Procedure - Ex-parte Decree - Restoration of Suit - Natural Justice - The trial court dismissed the suit for default on 20.09.2008, but restored it on 24.09.2008 without notice to the defendant. Subsequently, the court closed the defendant's right to cross-examine and decreed the suit ex-parte. Held that the restoration and ex-parte decree violated principles of natural justice as the defendant was not given an opportunity to be heard. (Paras 4-6) B) Civil Procedure - Cross-Examination - Opportunity of Hearing - The defendant had filed a written statement and appeared in the suit. The court closed the defendant's right to cross-examine the plaintiff's witnesses without any application or notice. Held that the defendant must be given a fair opportunity to cross-examine, and the ex-parte decree was set aside subject to costs. (Paras 5-6)
Issue of Consideration
Whether the trial court was justified in dismissing the suit for default and subsequently restoring it and passing an ex-parte decree without affording the defendant an opportunity to cross-examine the plaintiff's witnesses.
Final Decision
The High Court allowed the writ petition, set aside the ex-parte decree, and restored the suit to its original position subject to payment of costs of Rs. 1,000 to the plaintiff. The trial court was directed to decide the suit expeditiously.
Law Points
- Ex-parte decree
- restoration of suit
- natural justice
- opportunity of hearing
- cross-examination
- dismissal for default
- setting aside ex-parte order
- Order IX Rule 13 CPC
- Order XVII Rule 2 CPC
