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.
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