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2011 DIGILAW 504 (ORI)

Prasanta Kumar Pattnaik v. Prakash Kumar Pattnaik

2011-09-22

B.K.NAYAK

body2011
ORDER 1. Heard learned counsel for the parties. 2. This writ application has been filed by the plaintiff-petitioner challenging the order dated 16.8.2011 passed by the learned Civil Judge (Senior Division) First Court, Cuttack in C.M.A. No.606 of 2010 (arising out of C.S. No.20 of 2006) whereby the trial Court has rejected the petitioner's applications under Order 9 Rule 7 of the C.P.C. refusing to set aside the ex-parte order dated 25.11.2010 and also the petitioner's prayer for recalling P.Ws.1, 2 and 3 examined on behalf of the opposite parties for their cross-examination. 3. The present petitioner as plaintiff filed C.S. No.20 of 2006 in which final decree was passed on 05.12.2006 on compromise. The present opposite parties were the defendants in the suit. The opposite parties filed a petition under Order 23 Rule 3 of the C.P.C. before the trial Court to recall the final decree dated 08.01.2007 passed in the suit on the ground that the said compromise decree was obtained by the plaintiff fraudulently and that the opposite party-defendants have not signed the compromise petition or the vakalatnama. The said application was registered as CMA No.606 of 2010. The opposite parties also filed another petition for injunction, which was registered as CMA No.607 of 2010. The trial Court issued notices to the present petitioner in CMA Nos.606 and 607 of 2010 which were served by affixture. But, the trial Court directed to serve the notices afresh on the present petitioner which the opposite parties challenged in W.P.(C) No.17877 of 2010 before this Court. At the admission stage, by order dated 29.10.2010 this Court disposed of the writ petition holding the service of notice on the present petitioner in the CMA as sufficient, whereupon the trial Court by order dated 25.11.2010 set the plaintiff-petitioner ex-parte in the CMA and recorded ex-parte evidence of the present opposite parties (petitioners in CMA). Thereafter, on 03.01.2011 the present petitioner appeared before the trial Court and filed a petition to recall the P.Ws. examined by the present opposite parties for their cross-examination. The present opposite parties raised objection to the said petition inter alia on the ground that the petitioner having already been set ex-parte and the said ex-parte order being in force his petition for recalling P.Ws. for cross-examination cannot be entertained. examined by the present opposite parties for their cross-examination. The present opposite parties raised objection to the said petition inter alia on the ground that the petitioner having already been set ex-parte and the said ex-parte order being in force his petition for recalling P.Ws. for cross-examination cannot be entertained. Thereafter, on 24.01.2011 the petitioner filed a petition under Order 9 Rule 7 of the C.P.C. for setting aside the order dated 25.11.2010 by which he was set ex-parte. In both the petitions, the petitioner had contended that no notice of the CMAs was served upon him and that in a dispute relating to installation of electric meter before the Grievance Redressal Forum of CESU he came to know about the pendency of the proceeding for the first time from the disclosure made by the opposite parties before the Grievance Redresal Forum and thereafter having made enquiry the petitioner came to know that the notice of the proceeding has been held to be sufficient against him. The opposite parties filed objection to the petitions contending that the petitioner had all along knowledge of the proceeding and notice served on him has already been held sufficient by the Hon'ble High Court and, therefore, there was no good cause for non-appearance of the petitioner and therefore, there was no justification for recalling the order setting him ex-parte. On consideration of the matter, the trial Court by the impugned order has rejected the petitions filed by the petitioner. 4. Learned counsel for the petitioner submits that the petition for recalling the witnesses for cross-examination and the petition for recalling the order setting the petitioner ex-parte were filed at the stage of hearing when the matter was fixed for argument and that he was set ex-parte on 25.11.2010 and he filed the petition for setting aside the ex-parte order on 24.01.2011, i.e., within two months from the date he was set ex-parte and keeping in view the facts and circumstances of the case, the Court below should not have considered the delay to be fatal. He has relied upon the decisions reported in AIR 1964 SC 993 ; Arjun Singh v. Mohindra Kumar and others, AIR 2000 SC 2306 ; State of Bihar and others v. Kameshwar Prasad Singh and another, 108 (2009) CLT 149; Sarat Chandra Nanda v. Puspalata Nanda and 109 (2010) CLT 372; Md. He has relied upon the decisions reported in AIR 1964 SC 993 ; Arjun Singh v. Mohindra Kumar and others, AIR 2000 SC 2306 ; State of Bihar and others v. Kameshwar Prasad Singh and another, 108 (2009) CLT 149; Sarat Chandra Nanda v. Puspalata Nanda and 109 (2010) CLT 372; Md. Noorullah Shareef v. Senior Post Master, General Post Office (GPO), urging that no pedantic view is to be taken in the matter of setting aside ex-parte order or ex-parte decree under Order 9 Rule 7 and Order 9 Rule 13 of the C.P.C. for condonation of delay. 5. Learned counsel for the opposite parties, on the other hand, relying upon the decisions reported in (1976) 4 SCC 66 ; V.B. Patil and others v. V.L. Patil and AIR 1968 SC 1196 ; The Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras submits that in view of the findings of this Court in earlier W.P.(C) NO.17877 of 2010 that service of notice on the petitioner was sufficient the same would operate as resjudicata and it is not open to the petitioner to urge that he had no knowledge of the pendency of the proceeding and that he had not furnished good cause for his non-appearance on the date he was set ex-parte. His mere plea that no notice of the proceeding was served on him and he came to know about the pendency of the proceeding only when one of the opposite parties disclosed before the Grievance Redresal Forum of CESU that such a proceeding is pending cannot be accepted. 6. Learned counsel for the petitioner does not dispute the factual position that notice on the petitioner of the proceeding was served by affixture and the trial Court having not accepted the service as sufficient passed order directing for fresh service of notice on the petitioner, which was challenged by the opposite parties in W.P.(C) No.17877 of 2010 before this Court in which this Court set aside the order of the trial Court and held the service as sufficient and the said order of this Court has become final. Therefore, the question whether notice was served, on the petitioner or not is hit by resjudicata and cannot be re-agitated. Therefore, the plea of the petitioner that no notice of the proceeding has been served on him cannot be accepted. Therefore, the question whether notice was served, on the petitioner or not is hit by resjudicata and cannot be re-agitated. Therefore, the plea of the petitioner that no notice of the proceeding has been served on him cannot be accepted. Under Order 9 Rule 7 C.P.C. it is incumbent on the petitioner to assign good cause for his non-appearance on the date he was set ex-parte. The petitioner in his petition has not shown any cause, much less any good cause, justifying his non-appearance on the date he was set ex-parte except the only plea that he was not served with the notice of the proceeding, which question has already been set at rest and cannot be re-agitated. The question is not merely condoning delay in tiling the petition under Order 9 Rule 7 of the C.P.C., but relates to furnishing of good cause for non-appearance on the date he was set ex-parte and since no acceptable cause for non-appearance has been shown, I am not inclined to interfere with the impugned order. The writ petition is accordingly dismissed. Petition dismissed.