Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1180 (ORI)

Parameswar Devi v. Ashok Kumar Jaiswal

2016-12-02

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 25.7.2016 passed by the learned Civil Judge (Senior Division), Champua in C.M.A.No.2 of 2016, vide Annexure-6. By the said order, the learned trial court allowed the application of defendant no.1 under Order 9 Rule 13 C.P.C. and set aside the ex parte judgment and decree dated 8.10.2015 passed in T.S.No.41 of 2001. 2. The husband of the petitioner as plaintiff filed T.S.No.41 of 2001 in the court of the learned Civil Judge (Sr.Division), Champua for declaration of right, title, interest, confirmation of possession, in alternative recovery of possession if found dispossessed during the course of trial and for permanent injunction restraining the defendants from transferring the suit land in any manner or creating any sort of problem in the smooth possession of the same. During pendency of the suit, her husband died. Thereafter she was substituted. Though summons were issued to the defendants, but they had chosen not to contest the case and, as such, set ex parte. The suit was decreed ex parte on 25.8.2004. Thereafter the defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the said ex parte decree, which was registered as C.M.A. No.36 of 2007. The learned trial court set aside the ex parte decree. Assailing the same, the plaintiff filed W.P.(C) No.10646 of 2009 before this Court. This Court did not incline to interfere with the order passed by the learned trial court, but then liberty was granted to the defendants to file written statement. Thereafter the defendants filed written statement. On 16.9.2015 the power of attorney holder of the plaintiff was examined as a witness. The learned counsel for the defendants filed a memo stating therein that he had no instruction. The defendants were set ex parte. Thereafter the suit was decreed ex parte on 8.10.2015. While the matter stood thus, defendant no.1 filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. It is stated that he received a notice on 20.12.2015 in Mutation Case No.402 of 2015 filed by the plaintiff for correction of hall R.O.R. of the suit land. Since he was ill and undergoing treatment, his son contacted with the conducting counsel on behalf of the defendants on 20.12.2015 and came to know that the suit was decreed ex parte. Since he was ill and undergoing treatment, his son contacted with the conducting counsel on behalf of the defendants on 20.12.2015 and came to know that the suit was decreed ex parte. The conducting counsel could not intimate the defendants due to lack of personal contact. He obtained the certified copy of the ex parte judgment on 22.12.2015 and came to know that the case was posted to 16.9.2015 for hearing. The conducting counsel for the defendants remained absent and took no steps, for which they were set ex parte and thereafter ex parte judgment was passed. The specific case of defendant no.1 is that he was suffering from spondilotic, joint pains of limbs since 1998. He remained under treatment and he was also bed rest for more than four months. Thus he could not contact the conducting counsel. A show cause was filed by the defendants stating therein that the suit was filed in the year 2001. The defendants were set ex parte. The suit was decreed. Subsequently the same was set aside. A false plea has been taken that defendant no.1 was ill and confined to bed to build up the ground for setting aside ex parte decree. The suit was filed in the year 2001. This is a ploy to protract the litigation. In course of hearing, defendant no.1 himself examined as P.W.1 and on his behalf, discharge certificate and medical prescription had been exhibited. The learned trial court came to hold that defendant no.1 was suffering from chronic disease. His treatment of spondilotic from Professor Neurology shows that he was prevented by this prolonged disease from appearing when the suit was called for hearing. Held so, the learned trial court allowed the application, set aside the ex parte judgment and decree dated 8.10.2015 and restored the suit to file. 3. Heard Mr. Nandy learned counsel for the petitioner and Mr. Chhotray, learned counsel for opposite party no.1. The suit was filed in the year 2001. The defendants were set ex parte. The suit was decreed ex parte on 25.8.2004. Thereafter the defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. The same was allowed. The plaintiff unsuccessfully challenged the same before this Court in W.P.(C) No.10646 of 2009, which was eventually dismissed. Pursuant to the observation made by this Court, the defendants filed written statement. Thereafter the defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. The same was allowed. The plaintiff unsuccessfully challenged the same before this Court in W.P.(C) No.10646 of 2009, which was eventually dismissed. Pursuant to the observation made by this Court, the defendants filed written statement. The suit was posted for hearing. One of the witnesses was examined. At this juncture, the learned counsel for the defendants filed a memo stating that he had no instruction in the matter. Accordingly, the defendants were set ex parte. Thereafter, the suit was decreed ex parte. Again an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree was filed on the ground that defendant no.1 was ill and prevented by sufficient cause in not appearing before the court. The same found favour with the learned trial court. The reasons assigned by the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court. This Court is not inclined to interfere with the order. But then the learned trial court is not justified in not imposing the cost. The plaintiff is an old woman of 90 years. She is running from pillar to post. Hardship of the plaintiff can be mitigated, if a cost of Rs.20,000/- (Twenty thousand) is imposed on defendant no.1. 5. Ordered accordingly. 6. Defendant no.1 shall send a bank draft to the plaintiff within a period of six weeks from today. The learned trial court shall conclude the hearing of the suit by end of April, 2017. 7. The petition is disposed of.