Mrs.Mital Surendira v. Miss Malack Safaa Fathima and Another
Case brief
What is this about?
The court set aside an ex-parte order to grant the applicant/defendant an opportunity to cross-examine plaintiff witnesses, noting that while the defendant forfeited the right to file a written statement by failing to comply with the 30-day limit, they retain the right to cross-examination.
What did the court decide?
Ex-parte order dated 08.04.2024 set aside for the limited purpose of providing opportunity to cross-examine plaintiffs witnesses.
What the court decided
A.No.2231 of 2024 in C.S.No.(Comm Div).No.262 of 2023
P.VELMURUGAN, J.,
This application has been filed by the applicant/defendant to set aside the ex-parte order dated 08.04.2024 passed in C.S.(Comm Div) No.262 of 2023.
- Though the learned counsel for the applicant /defendant submitted that suit summons was not physically served on him, he has filed the counter. Whereas, notice for the interlocutory application has been returned as unclaimed. Hence, the Court has recorded the service of notice as deemed service. Thereafter, learned counsel for the defendant undertook to file vakalat and then, he entered appearance on 24.11.2023 and the plaintiffs' counsel has also served all the typed set of papers on the learned counsel who appeared on behalf of the defendant on 25.11.2023. Hence, the time for filing the written statement starts on 25.11.2023. If at all the defendant had got any defence to file written statement, he ought to have filed the same within 30 days ie., on or before 24.12.2023 at any cost, and if he could not file the written statement within 30 days, he ought to have filed the same with the leave of the Court for condonation of delay in filing the written statement thereafter within 90 days. In this case, the defendant ought to have filed the written statement on or before
25.03.2024. Since the defendant has not filed his written statement within the statutory period of 120 days, the defendant has forfeited his right to take his defence. Hence, the petition is liable to be dismissed.
- However, learned counsel for the applicant/defendant submitted that he was not aware of the proceedings, however, he came to know about the proceedings in the interlocutory application stage and then, he entered appearance. Hence, he could not file the written statement. But, the defendant was set ex-parte vide order of this Court dated 08.04.2024. Hence, he filed the application to set aside the ex-parte order. Even now, the suit summon has not been duly served on the defendant. Hence the question of filing of written statement could not arise.
Issues for consideration
2 issues framed by the court
Whether the applicant/defendant forfeited his right to file a written statement due to non-compliance with the statutory time limit.
Whether the ex-parte order passing against the defendant should be set aside despite the forfeiture of the right to file a written statement.
Parties & counsel
- applicant
APPLICANT/DEFENDANT
- respondent
PLAINTITFS/RESPONDENTS
Coram
P VELMURUGAN
Case details
As recorded by the court registry
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