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2014 DIGILAW 88 (ORI)

Bhagirathi Patra v. Sovarani Deb

2014-02-03

M.M.DAS

body2014
JUDGMENT M.M. Das, J. 1. This Writ Petition has been filed against the Order Dated 11.3.2011 passed in F.A.O. No. 108 of 2009 by the Learned District Judge, Balasore-Bhadrak, at Balasore. By the said order, the Learned District Judge confirmed the Order Dated 24.10.2009 passed in CMA No. 651 of 2005 arising out of T.S. No. 74/02-I by the Learned Civil Judge (Senior Division), Balasore. The Trial Court by the said order rejected the petition filed under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex parte decree. Facts reveal that the Opp. Parties 1 & 2 as Plaintiffs filed C.S. No. 74 of 2002-I in the Court of Learned Civil Judge (Senior Division), Balasore for declaration of sale deed Nos. 3757 & 3758 dated 20.11.2011 as forged, void & inoperative & thereby to declare the right, title & interest of the Plaintiffs over the suit properties by confirming their possession as well as for recovery of possession in the event they are found dispossessed. 2. Certain dates which are relevant are as follows:- The suit was filed on 25.1.2002 & was admitted on 15:12.202. On 10.3.2002, on receiving summons, the Defendant Nos. 1 to 5 including the present Petitioner appeared through one Mr. K. Dey, Learned Advocate & prayed for time to file written statement. The Plaintiffs were asked to take steps on the Government pleader on behalf of Defendant No. 6. The case was posted to 13.5.2002 when the Defendant Nos. 1 to 5 again prayed for time to file written statement. On 3.7.2003, the Plaintiffs did not take any steps but the Defendant Nos. 1 to 5 again filed a petition for time to file the written statement. As the said petition was not moved, they were set ex parte, but the suit was not dismissed though the Plaintiffs did not appear on the said date. Ultimately, on 21.8.2004, the suit was decreed ex parte against the Defendant Nos. 1 to 5 & on contest against the Defendant No. 6, who was represented by G.A.L. The decree was sealed & signed on 26.8.2004. The Petitioner submits that he was looking after the case on behalf of Defendant Nos. Ultimately, on 21.8.2004, the suit was decreed ex parte against the Defendant Nos. 1 to 5 & on contest against the Defendant No. 6, who was represented by G.A.L. The decree was sealed & signed on 26.8.2004. The Petitioner submits that he was looking after the case on behalf of Defendant Nos. 1 to 5 & on account of suffering from paralysis from 2.7.2003 to 25.10.205 & after partly recovering on 25.10.2005 made an enquiry about the fate of the case, upon which he came to known that the suit has been decreed on the date mentioned above. On 29.10.205, he got the details & after preparing the papers, presented the misc. case on 3.11.2005, being Misc. Case No. 651 of 2005. The Opp. Parties 1 to 6 disputed the said facts on the ground that the Petitioner was hale & hearty & the plea of the Petitioner is false. Oral evidence was adduced by the Petitioner. Ultimately, disbelieving his evidence, the Trial Court dismissed the misc. case on 24.10.2009, which was basically rejected on the ground that no Doctor was examined nor the last date of treatment was clearly mentioned. The Petitioner thereupon filed F.A.O. No. 108 of 2009 before the 1st Appellate Court. The lower Appellate Court dismissed the said FAO by his Judgment dated 11.3.2011 observing that if the Appellant before him (the Petitioner herein) suffered from paralysis, it was his duty to handover/entrust the matter to other Defendants to look after. It was further found that the Petitioner who was the Appellant has not filed any written statement. Therefore, the lower Appellate Court confirmed the order of the Trial Court which held that there was no sufficient cause on his part in not attending the Court & not filing the written statement & not sending the other Defendants to pursue the litigation. The lower Appellate Court also refused to interfere with the order of the Trial Court on finding that even though the medical certificate has been produced, the same has not been proved by examining the Doctor. 3. The lower Appellate Court also refused to interfere with the order of the Trial Court on finding that even though the medical certificate has been produced, the same has not been proved by examining the Doctor. 3. In such view of the matter, after Hearing Learned Counsel for the parties, this Court is of the opinion that the matter should be remitted back to the Trial Court for rehearing of CMA No. 651 of 2005 arising out of T.S. No. 74 of 2002-I by giving an opportunity to the Petitioner to adduce further evidence in support of his illness by examining the concerned Doctor under whom he alleges to have been treated. The Opp. Parties shall also be afforded with an opportunity to cross-examine the said Doctor & they shall also be at liberty to adduce further evidence on their behalf, if they so choose. The CMA being of the year 2005, parties are directed to appear before the Learned Civil Judge (Senior Division), Balasore on 19.2.2014 & produce a certified copy of this order before him, who shall thereupon proceed to hear the matter so as to dispose of the CMA No. 651 of 2005 by the end of July, 2014. In the event the Petitioner is unable to produce the Doctor, the Opp. Parties shall not be permitted to adduce any further evidence by the Trial Court while disposing of the matter afresh by assigning reasons. With afore aid directions, this Writ Petition stands disposed of. Disposed off.