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2007 DIGILAW 425 (ORI)

Lokanath Sahoo v. Thuri Bewa

2007-06-18

A.S.NAIDU

body2007
JUDGMENT A.S.NAIDU, J. : The respondent as plaintiff filed T.S.No.566 of 1996 for partition in the Court of the learned Civil Judge (SD), 1st Court, Cuttack. Notice of the said suit was duly served on the present appellant who was the defendant. He did not appear nor did contest the suit and consequently he was set ex parte. Ultimately the suit was decreed ex parte on 22.9.1999. In the year 2003 a petition was filed by the appellant under Order 9, Rule 13 CPC, registered as CMA No.439 of 2003, with a prayer to set aside the ex parte decree and restore the suit to file. According to the appellant he had no knowledge about the ex parte decree and only after receiving notice to appear in the final decree proceeding he came to know that ex parte judgment had been passed and filed the aforesaid petition for setting aside the ex parte decree. He further averred that after receiving summons in the suit he had met the plaintiff-respondent who assured him that the matter would be , settled amicably out of Court. In view of such assurance of the plaintiff-respondent he did not take any steps in the suit but then the plaintiff-respondent did not keep her words and proceeded with the suit in a camouflage way obtained the ex parte decree. He has further averred with regard to wrong advice of his counsel In short, according to defendant-appellant, his non-appearance in the suit was not intentional or deliberate but due to sufficient cause. 2. The averments of the appellant are strongly resisted by the plaintiff-respondent mainly on the ground that the CMA was grossly barred by time and that the defendant-appellant being well aware of the suit, having received summons, deliberately allowed the suit to proceed ex parte with an avowed oblique motive of harassing her. The plea of the defendant-appellant that he had met her and both of them had agreed for an amicable set¬tlement of the dispute out of Court was stoutly denied. 3. In support of his averments made in the CMA, the de¬fendant-appellant got himself examined as P.W.1 while the plain¬tiff-respondent got herself examined as OPW-1. The trial Court after discussing the evidence in extenso arrived at the conclu¬sion that the defendant-appellant could not establish by cogent evidence that there were sufficient reasons for his non appear¬ance in Court. 3. In support of his averments made in the CMA, the de¬fendant-appellant got himself examined as P.W.1 while the plain¬tiff-respondent got herself examined as OPW-1. The trial Court after discussing the evidence in extenso arrived at the conclu¬sion that the defendant-appellant could not establish by cogent evidence that there were sufficient reasons for his non appear¬ance in Court. It was also held that no sufficient cause was also shown to condone the delay in filing the CMA and accordingly dismissed the CMA. Being aggrieved by the said order of the Court below the defendant-appellant has approached this Court. 4. Admittedly the suit was filed in the year 1996. Summons had been duly served on the defendant-appellant, but as he did not appear in Court he was set ex parte. The suit was posted, to 12.10.1998 for ex parte hearing. Thereafter the suit was ad¬journed to several dates and finally on 7.9.1999 ex parte hearing was taken up and the suit was decreed ex parte on 22.9.1999. The aforesaid CMA was filed with a prayer to set aside the ex parte decree after a lapse of four years, i.e. in the year 2003. The explanation for the delay in filing the CMA was that the defend¬ant-appellant had no knowledge about the ex parte decree and only after receiving summons in the final decree proceeding he came to know about that and thereafter he filed the CMA. In his evidence before the Court below the defendant-appellant admitted that he had received summons in the suit but did not appear in Court as the plaintiff told him to amicably settle the matter out of Court. No specific date on which such assurance was given by the plaintiff is forthcoming. No other witness has been examined to substantiate such plea. The trial Court after discussing the entire facts and circumstances and the evidence in extenso ar¬rived at the conclusion that there was no reason much less any sufficient reason much less any sufficient reason which prevented the defendant-appellant from contesting the suit. This finding of the Court below is assailed by the learned counsel for the appel¬lant on the ground that the defendant-appellant all along be¬lieved in the assurance of the plaintiff-respondent that the dispute would be decided amicably among them out of Court for which he neither appeared in Court nor did take any steps. 5. This finding of the Court below is assailed by the learned counsel for the appel¬lant on the ground that the defendant-appellant all along be¬lieved in the assurance of the plaintiff-respondent that the dispute would be decided amicably among them out of Court for which he neither appeared in Court nor did take any steps. 5. The relationship of the parties was never cordial. The son of the defendant-appellant who had filed affidavit-evidence before the Court below had admitted that his father had received summons of the suit. In cross-examination he stated as follows : “I cannot say why the plaintiff filed that suit. In that suit summons were sent to defendant Lokanath Sahoo, my , father, who received the same. He asked the plaintiff about the suit and she told: “CASE RE APPEAR KARIBA DARKAR NAHlN. AME GHARA BHITARE BASI MIMANSA KARINEBA”. I cannot say the date and month when such talk took place. Only my father and the plaintiff talked. By that time none else was present.” As stated earlier, defendant-appellant though received notice of the suit, did not take any steps and was set ex parte in the year 1998. The suit was posted for ex parte hearing on 12.10.1998 and it remained at that stage till 22.9.1999, i.e. for more than one year. No explanation is forthcoming with regard to the steps taken and/or query made within the said period. Even otherwise the defendant-appellant did not take any steps till 2003. Except making a bald averment that the plaintiff had told him that there could be an amicable settlement of the dispute out of Court, he did not adduce any corroborative evidence. The delay of three years in, filing the CMA was also not explained. Consid¬ering all these aspects, this Court finds that the Court below has not committed any illegality or irregularity and the impugned order does not call for any interference by this Court. 6. That apart, while dealing with a petition under Order 9, Rule 13 CPC, if the Court is satisfied (1) that summons was not duly served on the defendant, and (2) that the defendant was prevented by sufficient cause from appearing in Court when the suit was called on for hearing, the Court shall make an order setting aside the ex parte decree passed against him on such terms as to costs. Law is well settled that a Court cannot set aside an ex parte decree passed by it on grounds other than those mentioned under Order 9, Rule 13 CPC as enumerated above. 7. In the case at hand, admittedly summons in the suit had been duly served on the defendant-appellant. The only ground which has to be considered is as to whether he was prevented by sufficient cause from appearing in Court when the suit, was posted for hearing. Admittedly the parties were at daggers drawn. The cause of his non-appearance in Court, according to the de¬fendant-appellant, was that the plaintiff-respondent had told him not to contest the suit as they would amicably settle the dispute out of Court. According to the defendant-appellant the said assurance was given by the plaintiff-respondent only once, i.e. in 1998. He stated that no other person was present when the plaintiff-respondent told him so. There is clear denial of the said fact by the plaintiff-respondent. She stated that taking advantage of the fact that she was a widow, the defendant-appel¬lant was forcibly possessing the entire joint family lands de¬priving her of the same and was harassing her several ways both mentally and physically and that after filing of the suit there was no talk/negotiation and on the other hand the appellant tried to drag on the litigation and thereby harass the plaintiff, a lady of ripe age. 8. The suit was pending till 1999. No reason was assigned by the defendant-appellant as to whether he had made any query about the stage of the suit and there is also no averment in the CMA that he had ever subsequently reminded the plaintiff-respond¬ent to settle the dispute amicably as assured by her. The aver¬ment of the defendant-appellant without any corroborative evi¬dence to the effect that the plaintiff-respondent had told him not to contest the suit and the dispute among them would be amicably, settled out of Court for which he did not appear in Court is very hard to digest, specially in view of the relation¬ship that existed among the parties. Thus none of the ingredients of Order 9, Rule 13 CPC are satisfied. 9. In view of the aforesaid discussions this Court is not inclined to interfere with the impugned order and dismisses this FAO. FAO dismissed.