The Supreme Court recently ruled that if a defendant in a civil case is set ex-parte, they lose the right to present any evidence in their defence. However, they are allowed a limited right — the right to cross-examine the plaintiff’s witnesses. This decision came in the case of Kanchhu vs. Prakash Chand & Others.
“Once the pleadings are complete but the defendant is set ex parte... the limited right that the defendant would have is confined to cross-examining the plaintiff’s witnesses,” the Court stated.
In this case, the defendant (respondent) was declared ex-parte by the trial court in 1991 after repeatedly seeking adjournments and not appearing for the proceedings. The plaintiff's evidence was recorded without any cross-examination. The trial court passed an ex-parte decree cancelling a disputed sale deed.
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Years later, the defendant filed a petition under Order IX Rule 13 of the Civil Procedure Code (CPC) to cancel the ex-parte decree. This was rejected by both the trial court and the district court. However, the Allahabad High Court later allowed the petition and restored the suit, citing legal issues raised in the written statement.
The Supreme Court found this approach incorrect.
“We are left to wonder how the trial court’s judgment could be faulted and the decree set aside... The learned Judge appears to have acted as if exercising appellate jurisdiction,” the bench noted.
The bench, comprising Justice Dipankar Datta and Justice Manmohan, held that the High Court failed to evaluate the sufficient cause for the defendant’s absence from the trial and wrongly allowed restoration without proper justification.
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The Court further explained that although certain legal issues (like jurisdiction or limitation) raised in the written statement can still be examined without evidence, this does not apply when the defendant fails to cross-examine the plaintiff. Without that, the case remains one-sided, and the defendant cannot later introduce new facts or evidence.
“The defendant has to convince the court that the plaintiff’s case is false by cross-examination alone — no fresh evidence is allowed,” the judgment clarified.
The apex court concluded that the High Court wrongly set aside the ex-parte decree and revived a dispute that was closed more than 30 years ago.
As a result, the Supreme Court set aside the High Court’s order, upheld the trial court’s decision, and dismissed the writ petition filed by the defendants.
Case Title: Kanchhu vs. Prakash Chand & Others
Appearance:
For Petitioner(s) :Mr. P.S. Datta, Sr. Adv. Mr. Sanjay Kumar Chatterjee, Adv. Mr. Sunil Kumar Pandey, Adv. Mr. Paramhans Sahani, Adv. Mr. Hemant Kumar Niranjan, Adv. M/S. Brajesh Pandey & Associates, AOR
For Respondent(s) :Mr. Sukumar Pattjoshi, Sr. Adv. Mr. Kiran Kumar Patra, AOR Mr. Preetish Sahu, Adv.
