Ajay Mohan Goel, J
1. By way of this petition, the petitioners have assailed order dated 21.07.2025, passed by learned Senior Civil Judge, Court No.1, Shimla, H.P., in Civil Suit No. 900587/2014, titled Faquir Chand Vs. Sanjeev Sood & Ors., in terms whereof, the right of the petitioners to lead evidence was closed.
2. Brief facts necessary for the adjudication of this petition are that the petitioners herein are defendants No.1 and 3 before the learned Trial Court. In terms of the record, as after service, they did not appear before the learned Trial Court, therefore, they were proceeded against ex parte. It is further evident from the record that during the pendency of the suit, a Local Commissioner was appointed and post submission of report by the learned Local Commissioner, an application for amendment of the plaint was allowed by the learned Trial Court. Thereafter, again fresh n tices were issued to the present petitioners, who responded thereto and filed the written statement to the amended plaint. However, said written statement was not confined to the amendments which were allowed by the learned Trial Court but related to the entire Civil Suit. Thereafter, issues were framed on 24.04.2024. The Court stands informed that the witnesses of the plaintiff were allowed to be cross-examined by the present petitioners and it was at the stage of the leading of the evidence of the petitioners that in terms of the impugned order, the right of the petitioners to lead evidence was closed.
3. Learned counsel for the petitioners submitted that the impugned order is per se perverse as the learned Trial Court erred in not appreciating that when the petitioners were allowed to join the proceedings after amendment in the plaint, there was no occasion for the learned Trial Court to have denied the right of leading evidence to the petitioners. He further submitted that in fact, as far as the petitioners are concerned, according to them, the purported cause of action pleaded against them by the plainti arose only after the amendment was incorporated in the plaint. He submitted that as these extremely impor ant aspects of the matter were ignored by the learned T ial Court, therefore, the impugned order be set aside and the petitioners be granted opportunity to lead evidence.
4. On the other hand, learned Senior Counsel appearing for the respondent-plaintiff supported the order passed by the learned Trial Court. Learned Senior Counsel submitted that it is a matter of record that the present petitioners were proceeded against ex parte by the learned Trial Court and till date, in terms of the record, there is no application filed by the petitioners for recall of that order. He further submitted that even if the petitioners were allowed to file a written statement to the amended plaint, this did not alter their status of having been proceeded against ex parte because nothing prevented them from moving an application before the learned Trial Court for recall of the order in terms whereof they were proceeded against ex parte. Learned Senior Counsel further submitted that there is no occasion for the petitioners herein to lead any evidence for the reason that as they stand proceeded against ex parte, their right already stands ceased. Accordingly, he submitted hat he petition being devoid of any merit be dismissed.
5. I have heard learned counsel for the petitioners as well as learned Seni r Counsel appearing for the respondent.
6. The impugned order, in terms whereof, the right of t e petitioners to lead evidence was closed, reads as under:-
“21.07.2025
Present:- Sh. G.R. Chauhan, Advocate for plaintiff. Sh. Bhagwan Chand, Advocate for defendants No.4 to 6.
Sh. D.K. Sharma, Advocate for defendants
No.1 and 2 (through ex parte).
Sh. D.K. Sharma, Advocate for defendant
No.3.
This order shall dispose of the oral objections raised by the plaintiff against the request of defendants no. 1 to 3 to lead their evidence. The objection is to the effect that since defendants no. 1 to 3 have already been proceeded ex parte vide order dt 07.10.2014, they have forfeited their right to lead evidence as no application for setting aside the ex parte order has been moved or allowed.
2. On the other hand, defendants no. 1 to 3 have contended that although an ex parte order was passed against them, this C urt had subsequently permitted them to file a wri ten statement in response to the amended plaint, and therefore they are entitled to lead evidence.
3. Heard. Record perused. It is pertinent to note that defendants no. 1 to 3 were proceeded ex parte for non-appearance vide order dt. 07.10.2014, and till date, no application under Order IX Rule 7 CPC for setting aside the said ex parte order has either been moved or allowed. Although the Court subsequently permitted defendants no. 1 to 3 to file a written statement in response to the amended plaint, it is well settled that such permission is limited in scope and does not ipso facto amount to setting aside the ex parte order or restoring the defendant's right to participate in the subsequent stages of the suit, including leading of evidence.
4. Hon'ble Supreme Court in Kanchhu v Prakash Chand & Ors. Civil Appeal No. 5319/2025-decided on April 22, 2025 held as under-
"Pleadings, either in a plaint or a written statement, constitute the plinth on which the respective claims and de ence of the parties to a civil suit rest. What a pleading ought to contain is provided in Order VI Rule 2. CPC. Only material facts, on which the party pleading relies for his claim or defence to succeed, have to be stated without the evidence by which the pleading is to be proved. Once the pleadings are complete but the defendant is set ex parte, and such order has attained finality, the defendant's rights suffer a curtailment. He cannot produce evidence in defence and hence statements, which are in the nature of factual assertions, cannot be proved by leading evidence. Generally speaking, the limited right that the defendant, set ex parte, would have is confined to cross-examining the plaintiff's witnesses. The effort has to be directed towards demonstrating that they are not speaking the truth and, thereby, demolish the case of the plaintiff.
Essentially, therefore, in such a case the defendant has to convince the court that the case put up by the plainti f is so false that the court ought n t to accept it. However, if the defendant raises an issue on law which is t aceable in the written statement, for instance, the suit is barred by limitation or Section 9, CPC is attracted, or if the relief claimed in the suit cannot be granted for reasons disclosed, the requirement of the defendant proving such defence as raised in the written statement by leading evidence may not arise and the court may frame an issue of law and decide the same."
5. Once a party is proceeded ex parte, it forfeits its right to participate in the proceedings beyond the stage at which it was defaulted, unless the ex parte order is duly set aside. Mere permission to file a written statement to an amended plaint, without recalling the ex parte order, does not revive the defendant's right to lead evidence.
6. In view of the above, the oral objection raised by the plaintiff is sustained. The request of defendants no. 1 to 3 to lead evidence is declined. Put up for DWs of other defendants on taking steps for 18.08.2025 being last opportunity.”
7. This Court is of the c nsidered view that the impugned order in its present form is not sustainable in the eyes of law. It is a matter of ecord that the present petitioners were proceeded against ex parte before the learned Trial Court on 07.10.2014 and thereafter, they did not file any application for recall of that order. It is also a matter of record that after the application filed by the plaintiff for amendment of the plaint was allowed, the petitioners were granted an opportunity and they filed a written statement to the amended plaint. Though in law the petitioners could have filed the written statement relating to that portion of the plaint only which was allowed to be amended, but a perusal of the written statement that was filed by the petitioners, which was made available for the perusal of the Court, demonstrates that defendants filed written statement to the entire plaint, which was not permissible in law. Not only this, on 20.04.2024 when the issues were framed, three issues stand framed and onus to prove the same is upon defendants No. 1 to 3, which includes the present petitioners
8. This Court is of the considered view that when the petitioners were permitted to file written statement to the amended plaint, a limited right st d c nferred upon them to lead evidence to the extent of he response they were permitted to file to the amended plaint. This important aspect of the matter was ignored by the learned Trial Court while passing the impugned order.
9. Of course, the position of the petitioners cannot be relegated to that of the defendants, who were not proceeded a ainst ex parte, but once the petitioners were allowed to file written statement to the amended plaint, their status as ex parte defendants, at least vis-a-vis the amended plaint and the amended written statement, stood obliterated.
10. In fact, because this Court is exercising its superintending jurisdiction over the learned Trial Court, it has no hesitation in holding that the written statement as it was filed by the present petitioners along-with defendant No.2, could not have been taken on record by the learned Trial Court as the same transgressed the contents of amended plaint. As the same does need rectification, therefore, as prayed, the petitioners herein along-with defendant No.2 are permitted to file a fresh written statement by con ining themselves to only that portion of the plaint which was all wed to be amended. To put it in other words, the present written statement on record, shall be taken off reco d and the contents in the written statement filed, which relate to the amendments incorporated in the plaint, shall be all wed to be again re-filed by way of a fresh written statement, which learned Trial Court shall take on record.
11. Thereafter, in case, the learned Trial Court so desires, it may re-frame the issues with regard to the response incorporated in the said written statement and an opportunity shall be given to the petitioners to lead evidence.
12. With these observations, this petition is disposed of by modifying impugned order dated 21.07.2025, passed by learned Senior Civil Judge, Court No.1, Shimla, H.P., in Civil Suit No. 900587/2014, titled Faquir Chand Vs. Sanjeev Sood & Ors. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
