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2014 DIGILAW 162 (ORI)

Bhikari Charan Ojha v. Dhruba Naik

2014-03-10

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R. SARANGI, J. Challenging the order dated 05.03.2005 passed by the learned Civil Judge (Junior Division), Dhenkanal in C.S. No. 24/2003 rejecting the petition filed by the defendants-petitioners praying for settlement of issues after accepting written statement filed on their behalf, this writ petition has been filed. 2. The brief fact of the case, in hand, is that the plaintiff-opposite party filed C.S. No. 24 of 2003 before the learned Civil Judge (Junior Division), Dhenkanal seeking for permanent injunction against the defendant-petitioners not to interfere with the peaceful possession of the land and not to alienate the suit land in favour of anybody. It appears that the father of the plaintiff-opposite party was granted Ac. 2.00 dec. of land as Choukidar. He succeeded to his father. During settlement operation it was found that on 20.02.2003 the land was recorded in the name of Madhua Ojha and thereafter in the name of the defendant-petitioners as legal heirs in a mutation proceeding, which are wrong and fascinated. During 1965 settlement operation one Sudarsan Rout, who was looking after the settlement operation managed to record in the R.O.R. the name of the father of the defendant-petitioners as owner and his name as unauthorized occupier from 1959. After the death of the father of the plaintiff-opposite party, he initiated Mutation Case No. 117 of 1993, which did not proceed. The defendants-petitioners are trying to snatch away the suit land by identifying through R.I. and police. The plaintiff-opposite party is in possession and L.I.R. case is pending. The R.O.R. in the name of defendants-petitioners is wrong. Though the property is recorded as bebandobasti, the land belongs to intermediary. The defendant-petitioners claim to have acquired the land in O.E.A. proceedings. The plaintiff-opposite party also claimed adverse possession. 3. The defendant-petitioners were set ex parte. Thereafter on 06.04.2004, the defendants-petitioners filed an application to recall the ex parte order and for cross-examination of the witnesses of plaintiff-opposite party along with the written statement. In the written statement the defendants-petitioners while denying the plaint averments, pleaded that the suit land was originally part of the personal property of erstwhile King of Dhenkanal but the name of Madhu Ojha, the common ancestor of the defendants-petitioners was reflected in the R.O.R. on the strength of his service for construction of Rath (for Car Festival). In the written statement the defendants-petitioners while denying the plaint averments, pleaded that the suit land was originally part of the personal property of erstwhile King of Dhenkanal but the name of Madhu Ojha, the common ancestor of the defendants-petitioners was reflected in the R.O.R. on the strength of his service for construction of Rath (for Car Festival). Subsequently, the land was vested to the Government and after such vesting since Madhu Ojha was the possessor vide Bebandobasta Case No. 499 of 1997, a proceeding was drawn up to settle the land as well as to fix the land revenue for the suit land and other properties under Khata No. 538 and as per the said proceeding the defendants-petitioners became the R.O.R. holder and paying the rent to the State till date, they are enjoying the suit land along with other properties of Banamali Prasad Mouza, which has been mutated in their favour vide new Khata No. 535/674. The defendant-petitioners raising various Rabi crops, have been possessing the land till date and further the learned Court has no jurisdiction to decide the verdict of the Collector under O.E.A. Act in the present suit. 4. The application filed on 06.04.2004 for recalling the order, was rejected on 09.07.2004 and the matter was posted for argument. Thereafter, the P.O. was transferred. The case was taken up for hearing on 15.01.2005. The defendants-petitioners filed a petition to accept the written statement and for cross-examination of the plaintiffs witness. The learned Court below held that the defendants-petitioners can be permitted to file written statement and thereby allowed the defendants-petitioners to file written statement by paying a cost of Rs. 200/-. The Court further held that as the suit is posted for argument afresh, the defendants-petitioners can at best participate in the hearing of the argument only but they cannot be relegated to any earlier position. Such application was allowed by order dated 18.01.2005. On the said date it was also found that the written statement had been filed earlier on 06.01.2005, which was accepted and the matter was posted for argument on 25.01.2005. But on that date the case was not heard and till date the matter is pending for argument. 5. On 18.02.2005 the defendants-petitioners filed draft issues along with a petition to settle the issues, to which the plaintiff-opposite party filed objection refuting the prayer for settlement of issue. But on that date the case was not heard and till date the matter is pending for argument. 5. On 18.02.2005 the defendants-petitioners filed draft issues along with a petition to settle the issues, to which the plaintiff-opposite party filed objection refuting the prayer for settlement of issue. The learned Court below after hearing the parties vide impugned order dated 05.03.2005 rejected the petition holding, inter alia, that earlier the defendants had filed written statement along with a petition under Order 9, Rule 7 CPC to recall the ex parte order and to accept the written statement, which had been rejected earlier. As the P.O. was transferred, fresh argument was necessary. The application was allowed and the written statement was accepted giving a right to the defendants-petitioners to participate in the remaining part of the proceeding. Therefore, the petition for hearing the issues was rejected holding that the remaining proceeding is hearing of argument and pronouncement of the judgment. The defendants-petitioners can participate in the argument but they cannot be relegated to the stage of settlement of issues, which was prior to commencement of hearing of the suit. Accordingly, the petition is rejected. Hence this writ petition. 6. Mr. S.C. Samantray, learned counsel for the petitioners states that the application filed under Order 9, Rule 7, CPC for setting aside the ex parte order and acceptance of the written statement has been allowed vide order dated 15.01.2005 subject to payment of cost of Rs. 200/- to the plaintiff-opposite party. Once the written statement is accepted by setting aside the ex parte order, the entire proceeding is relegated back to the position of filing of written settlement, framing of issues, cross-examination of the plaintiff's witness and so on and so forth. To substantiate his contention, he has relied upon the judgments of the apex Court as well as this Court in Sangram Singh v. Election Tribunal, Kotha, Bhurey Lal Baya, AIR 1955 SC 425 , Subash Chandra Rout v. Smt. Prafulla Kumari Dei and others, AIR 1991 Orissa 157 and R.N. Jadi and Brothers and others v. Subhashchandra 2007 (II) OLR (SC) 498. 7. Mr. 7. Mr. S.P. Mishra, learned counsel appearing for the plaintiff-opposite party vehemently opposes the contention raised by the learned counsel for the defendants-petitioners and has stated that the learned Court below after setting aside the ex parte order could not have accepted the written statement rather could have permitted the defendants-petitioners to proceed with the matter from that stage only as the evidence from the side of the plaintiff-opposite party has already been over and the matter has been posted for argument. He further submitted that in the event the defendants-petitioners are allowed to have de novo trial, it will cause great prejudice to the plaintiff-opposite party. To substantiate its contention he has relied upon judgment of the Apex Court in Arjun Singh v. Mohindra Kumar and others AIR 1964 SC 993 . 8. In view of the pleadings of the parties and after hearing the learned counsel for the parties, it is now to be considered as to whether after acceptance of the written statement by setting aside ex parte order passed under Order 9 Rule 7 CPC, the proceeding can be relegated to the stage of filing of the written statement or if it only allowing the defendants-petitioners to proceed with the hearing. In Arjun Singh (supra) in paragraphs 13 and 14, the apex Court while dealing with the scope of Order 9 Rule 7 CPC held as follows: "13. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent application for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. Such orders are certainly capable of being altered or varied by subsequent application for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, as to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, not put an end to the litigation. The case of an application under O. IX, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate Court. In that sense, the refusal of the Court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principles that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of-any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issues, whereas in the other case, on proof of fresh facts, the Court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the Court. 14. This leads us to the considerations of the nature of the Court's direction under O. IX, R. 7 - the nature of that interlocutory proceeding with a view to ascertain whether the decision of the Court under that provisions decides anything finally so as to constitute the bar of res judicata when dealing with an application under O. IX, R. 13, Civil Procedure Code. To sum up the relevant facts, it is common ground that the suit 134 of 1956 had passed the stages upto R. 5 of O. IX. Order IX, R. 6 applies to a case where a plaintiff appears and the defendant does not appear when the suit is called on for hearing. To sum up the relevant facts, it is common ground that the suit 134 of 1956 had passed the stages upto R. 5 of O. IX. Order IX, R. 6 applies to a case where a plaintiff appears and the defendant does not appear when the suit is called on for hearing. Order IX, Rule 6 provides, to quote the material part; "Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then- (a) if it is proved that the summons was duly served, the Court may proceed ex parte;........." This is the provision under which the Civil Judge purported to act on the 29th of May. And then comes O. IX, R. 7 which reads: "Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on the day fixed for his appearance." On that very date the Court took evidence of the plaintiff and reserved judgment. In other words, the hearing had been completed and the only part of the case that remained there after was the pronouncing of the judgment. Order XX, R. 1 provides for this contingency and it reads: "The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders." Two days after the hearing was completed and judgment was reserved the defendant appeared and made the application purporting to be under O. IX, R. 7. And it is the dismissal of this application that has been held to constitute a bar to the hearing of the application under O. IX, R. 13 on the merits." There is no dispute with regard to the proposition of law laid down by the apex Court in Arjun Singh (supra) so far as the application is concerned under Order 9, Rule 7 of CPC for setting aside the ex parte order passed by the Court below is concerned. But in the present case the question is altogether different in the sense that the petition under Order 9, Rule 7 of CPC has been allowed by setting aside ex parte order and accepting the written statement filed by the defendants-petitioners subject to payment of cost. Once there is acceptance of written statement filed by the defendants-petitioners in that case, the defendants-petitioners have right to participate in the proceeding from that stage. In Sangram Singh (supra), paragraphs 17, 18 and 41 the apex Court has held as follows: "17. Now a code of procedure must be regarded as such, it is procedure, something designed to facilitate justice and further its ends : not a thing designed to trip people up. Too technical construction of selections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. 18. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in there absence and that they should be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, whenever that is reasonably possible, in the light of that principle. 41. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, whenever that is reasonably possible, in the light of that principle. 41. We have seen that if the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceeded without a written statement; and Order IX, Rule 7 makes it clear that unless good cause is shown the defendant cannot be related to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences, entailed by Order VIII, Rule 10 must be suffered." Referring to Sangram Singh (supra), this Court in Subala Charan Rout (supra) in paragraph 6 has held as follows: "x x x Law is well-settled that if a defendant makes an application under Order 9 Rule 7 of CPC to set aside the ex parte order and at or before such adjourned hearing and shows a good cause for his previous non-appearance the Court may upon such terms as it directs to the cost or otherwise permit the defendant to be heard in answer to the suit as if he had appeared or the day fixed for his appearance. In other words, he shall be relegated to the position and be permitted to participate in the proceeding as if he was present in the Court on the earlier date or appearance in which case, he as a matter of right, can file the written statement. But when good cause was not shown, the defendant could not be relegated to the same position as if he appeared in the suit earlier or being noticed and be allowed to accept the action done before and be content to proceed from the stage at which he comes in. This is because by setting the defendant ex parte the Court is authorized in law to proceed in his absence which has an exception to the general principle that the Court shall not proceed and pass orders against a party in his absence behind his back. This is because by setting the defendant ex parte the Court is authorized in law to proceed in his absence which has an exception to the general principle that the Court shall not proceed and pass orders against a party in his absence behind his back. If the defendant does not appear at the adjourned hearing and is set ex parte, this does not amount to an ex parte order against him or ex parte decree against him as to require the Court to set aside that decree Order 9, Rule 1, CPC. The recording of the fact that defendant did not appear and was set ex parte is merely statement of the facts and is not an order made against the defendant in the sense of an 'ex parte decree' or 'ex parte order', It does not prevent the defendant to participate in further proceeding of the suit, but he can only file his written statement with the permission of the Court under Order 8 read with Rules, 1, 9 and 10, CPC. The Apex Court in R.N. Jadi and Brothers and others (supra) has also relied upon judgment of the apex Court in Sang ram Singh (supra) and also taken similar view in the matter. 9. After analyzing the judgments referred to supra, this Court is of the view that the application under Order 9, Rule 7 of CPC has been allowed by setting aside the ex parte decree by accepting the written statement filed by the defendants-petitioner vide order dated 15.1.2005 subject to payment of cost Rs. 200/- and in turn plaintiff-opposite party has accepted the cost. The written statement having been accepted, the position is relegated back to the stage of filing of written statement. Therefore necessary corollary is, defendant-petitioners is to file draft issues whereafter, the Court can frame issues taking into consideration the draft issues filed by the plaintiff as well as defendants and to post the matter for hearing calling upon the parties to examine their witness. As the evidence from the side of the plaintiff-opposite party has already been closed, opportunity should be given to the defendants to cross examine the witnesses and thereafter to permit the defendants to adduce their evidence and the plaintiff to cross-examine the defendants, whereafter the Court can proceed for argument. 10. As the evidence from the side of the plaintiff-opposite party has already been closed, opportunity should be given to the defendants to cross examine the witnesses and thereafter to permit the defendants to adduce their evidence and the plaintiff to cross-examine the defendants, whereafter the Court can proceed for argument. 10. In the present case since the evidence from the side of the plaintiffs has been over long since, the defendants can only be permitted to cross-examine the witnesses subject to his/her availability. In case any of the plaintiff's witness is not available to be cross-examined in that case it is open to the defendants to give rebuttal evidence on the evidence adduced by such non-available plaintiff's witness so that they will not cause any delay in the disposal of the suit. 11. In view of the aforesaid facts and circumstances and on consideration of the law governing the field, this Court is of the view that the written statement having been accepted, the matter will be relegated to the position at the stage of de novo trial of the suit starting from framing of issues, commencement of hearing by adducing evidence, argument and thereafter for judgment. Therefore, learned Court below has committed gross illegality by rejecting the prayer of the defendants-petitioners vide the impugned order. 12. Accordingly, the impugned order dated 5.3.2005 passed by the learned Civil Judge (Senior Division), Dhenkanal is hereby set aside and the writ petition is allowed. No cost. 13. As the suit is of the year 2003, the learned Court below is directed to conclude the same as expeditiously as possible. Parties are directed to cooperate the learned Court below for early disposal of the suit. Petition allowed.