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2007 DIGILAW 808 (ORI)

Binapani Vidyamandir Parichalana Samiti v. Srikhetra Sikhya Vikas Parishad

2007-10-12

SANJU PANDA

body2007
JUDGMENT S. PANDA, J. : This appeal is directed against a confirming judgment. Defendant Nos.10 and 11 are the appellants against the judgment and decree dated 31st January, 2006 passed by the learned Ad hoc Addl.District Judge, F.T.C. 1, Puri in RFA No.50/24 of 2005/2004. 2. By order dated 01.03.2006 of this Court, L.C.R. was called for and notice was issued to the respondents at the stage of admission of the appeal. The appeal was heard under Order 41, Rule 11 of the Civil Procedure Code. 3. The brief facts of the case are as follows; The respondents-plaintiffs filed the suit for a declaration that plaintiff Nos.2 to 14 are the members of the Governing Body of Srikhetra Sikshya Bikash Parishad and the defendants are not the valid members of the Governing Body of Binapani Vidhayamandir Parichalana Samiti. Further, it was prayed that defendant Nos.1 to 5 and 10 to 14 may be permanently restrained from interfering with the affairs and management of the Governing Body of the said Binapani Vidhayamandir Parichalana Samiti and they may also be restrained from withdrawing the deposit made in Puri Urban Coop¬erative Bank (Evening Branch) in Account Nos.1485 and 719 and term deposit Account No.1421 and any deposit made in Account No.24/97 in the Central Bank, Puri. 4. Defendant Nos. 1, 6, 10 and 11 filed their written-statement denying the allegations made in the plaint and chal¬lenged the maintainability of the suit. The suit was thereafter posted for hearing and in course of hearing, defendants filed an application for amendment of the written-statement and the plain¬tiffs filed their objection to the said petition. The learned trial Court rejected the said petition and posted the suit for hearing. Defendant Nos.2, 6, 10 and 11 neither contested the suit nor did they cross-examine the witnesses examined on behalf of the plaintiffs. However, contesting defendant Nos.21 and 22 cross-examined the plaintiffs’ witnesses and the learned trial Court proceeded to dispose of the suit on merit without passing any order setting defendant Nos.2, 6, 10 and 11 ex parte. It decreed the suit on contest against defendant Nos.2, 10, 11, 21 and 22 and ex parte against other defendants without cost. 5. However, contesting defendant Nos.21 and 22 cross-examined the plaintiffs’ witnesses and the learned trial Court proceeded to dispose of the suit on merit without passing any order setting defendant Nos.2, 6, 10 and 11 ex parte. It decreed the suit on contest against defendant Nos.2, 10, 11, 21 and 22 and ex parte against other defendants without cost. 5. Being aggrieved by the said judgment and decree, de¬fendant Nos.6 and 11 filed an appeal before the learned District Judge and the appeal was heard by the learned Ad hoc Addl.Dis¬trict Judge, F.T.C.-1, Puri and the same was registered as RFA No.50/24 of 2005/2004. The appellants argued that the advocate engaged by them did not participate in the hearing. In that view of the matter, the learned trial Court committed gross error of law by passing a contested decree in place of an ex parte decree. The learned Ad hoc Additional District Judge, FTC 1, Puri, con¬sidering the said facts and examining the records available before him, came to a finding that defendant Nos.21 and 22 are impleaded in the suit in order to safeguard the pecuniary inter¬est of the defendants. They contested the suit by cross-examining the plaintiff’s witnesses in line of the plea taken by defendant Nos.2, 6, 10 and 11 in their written-statement. Considering the evidence on record, the learned Ad hoc Addl.District Judge, F.T.C. 1, Puri came to a finding that defendant Nos.2, 6, 10 and 11 were trying to linger the hearing of the suit. In the above premises, the plea of appellant Nos.2 and 3 that they were not given opportunity by the learned trial Court to contest the case, cannot be accepted. The learned lower appellate Court being the final Court of fact has considered every aspect of the case and confirmed the finding of the learned trial Court. 6. This Court considered the argument advanced by the learned counsel for the parties and perused the evidence on record. It reveals from the records that defendants-appellants filed their written-statement and intentionally did not take part in the proceeding though several opportunities were given to them during trial of the suit. 6. This Court considered the argument advanced by the learned counsel for the parties and perused the evidence on record. It reveals from the records that defendants-appellants filed their written-statement and intentionally did not take part in the proceeding though several opportunities were given to them during trial of the suit. The learned trial Court has rightly proceeded with the suit under Order 17, Rule 2 read with Order 9, Rule 11 of the Civil Procedure Code when the defendants chose not to participate in the proceeding but the other defendants (de¬fendant Nos.20 and 21) participated in the same. The trial Court has pronounced the judgment and the learned Ad hoc Addl.District Judge, F.T.C.-1, Puri who is the final Court of facts, after discussing the evidence on record, has come to a definite conclu¬sion that the defendant-appellants intentionally did not take part in the proceeding of the suit. He has also rightly given a direction for constitution of the Managing Committee in accord¬ance with the rules. In the present second appeal, the appellants have raised the same question which is a pure question of fact and have not raised any substantial question of law to be decided by this Court. Since the appellants challenge the concurrent finding of facts of the Courts below, the same is beyond the purview of consideration under Section 100 of the Civil Procedure Code. The High Court in Second Appeal should not interfere with the finding of facts and would not enter to a mere reappraisal of the evidence and the finding cannot be reversed merely on the ground that another view was possible. Accordingly, the second appeal is dismissed without any order as to costs. Appeal dismissed.