Case Note & Summary
The dispute arose from a suit for specific performance of contract based on an agreement dated 12-12-2007 and extended agreements dated 20-12-2007 and 31-01-2008. An ex parte decree was passed on 06-05-2009. The defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 on 14-10-2010 to set aside the ex parte decree. The application was allowed on 16-12-2011, the decree was set aside, and the defendant was granted permission to file a written statement, which was filed on 11-09-2012. The plaintiff filed further examination-in-chief, and the matter was posted for the plaintiff to enter the witness box. On 09-03-2015, the defendant filed an application under Order XIII Rule 3 of the Code of Civil Procedure seeking rejection of documents, including the agreements that had been exhibited earlier during the ex parte proceedings. The trial court, relying on the Full Bench decision of the Gujarat High Court in Shah Bharatkumar Premchand v. M/s. Motilal and Bharulal, allowed the application on 11-03-2016, directing that the agreements be sent to the Collector (Stamps) for adjudication of stamp duty and impounding. The plaintiff challenged this order by way of a writ petition. The core legal issue was whether the evidence recorded prior to the setting aside of the ex parte decree is completely wiped out when the decree is set aside and the defendant is permitted to file a written statement. The High Court noted conflicting views of different High Courts but distinguished the Gujarat Full Bench decision on the ground that in the present case, permission to file a written statement was specifically granted. The court held that when an order setting aside an ex parte decree with permission to file a written statement attains finality, it has the effect of wiping out the entire evidence recorded earlier, and the court must re-record such evidence. The prior evidence, however, can be used for confrontation under Section 145 of the Indian Evidence Act, 1872, as a previous statement. Consequently, the High Court found no reason to interfere with the trial court's order sending the documents for impounding. The writ petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Evidence - Effect of Setting Aside Ex Parte Decree with Permission to File Written Statement - Code of Civil Procedure, 1908, Order IX Rule 13, Order XIII Rule 3; Indian Evidence Act, 1872, Section 145 - The court considered whether evidence recorded before the ex parte decree was set aside remains valid when the decree is set aside and the defendant is allowed to file a written statement. The court held that once the order setting aside the ex parte decree with permission to file written statement attains finality, the entire evidence recorded earlier is wiped out and must be re-recorded. However, the earlier evidence can be used to confront witnesses under Section 145 of the Indian Evidence Act, 1872. (Paras 5-8)
Issue of Consideration
Whether the evidence led by the plaintiff and recorded prior to the setting aside of the ex parte decree gets completely wiped out when the ex parte decree is set aside and permission to file a written statement is granted.
Final Decision
The writ petition is dismissed. Rule stands discharged. No order as to costs.
Law Points
- When an ex parte decree is set aside and the defendant is granted permission to file a written statement
- the entire evidence recorded prior to setting aside the decree is wiped out and must be re-recorded
- such prior evidence can only be used for confrontation under Section 145 of the Indian Evidence Act
- 1872
- documents not duly stamped may be sent to the Collector for adjudication and impounding under the relevant stamp law.
