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2016 DIGILAW 763 (ORI)

Bigyan Choudhury v. Agadhu Charan Nayak

2016-09-08

D.DASH

body2016
JUDGMENT : This appeal has been filed under order 43 rule 1(d) of the Code of Civil Procedure challenging the order passed by the learned Civil Judge (Sr. Division), Bhubaneswar in CMA No. 282 of 2006 arising out of C.S. No. 579 of 1998 in the matter a petition under order -9, rule 13 of the Code. By the said order, the prayer made by the appellant as the petitioner to set aside the exparte judgment and preliminary decree passed in the above noted suit has been rejected. 2. Facts necessary for disposal of this appeal are as under:- The respondent no. 1 as the plaintiff had filed the suit for partition of the properties described in the three schedules of the plaint claiming the two out of those i.e. Schedule B and Schedule C to be belonging to him and respondent no. 1 (defendant no. 1) both having equal share over it and that over the other Schedule ‘D’, they together to have half share jointly. An exparte preliminary decree having been passed on 06.05.2006 allotting 8 annas of share to the plaintiff over Schedule B and C properties and 4 annas of share over Schedule D properties to him, the petition under order 9 rule 13 of the Code for setting aside the same came to be filed on 19.06.2006. The trial court has dismissed the petition stating that the petitioner has not been able to establish that he had been prevented by sufficient cause from appearing in the suit when it was heard. 3. I have heard the learned counsel for the parties and perused the averments of the memorandum of appeal as also the misc. petition and objection filed in the court below in the proceeding under order 9 rule 13 of the Code. The present appellant initially was not a party to the suit. It is stated that during pendency of the suit a power of attorney had been executed by Akhaya @ Akhaya Nayak, the defendant no. 2 who is the respondent no. 2 in this appeal appointing him as the sole custodian of the property on his behalf so as to take care, manage and carry out all activities in relation to the sale of the land, so later he has been added as defendant no. 6. 2 who is the respondent no. 2 in this appeal appointing him as the sole custodian of the property on his behalf so as to take care, manage and carry out all activities in relation to the sale of the land, so later he has been added as defendant no. 6. It is not understood as to how he has been so independently permitted to be added as a party. It is stated that he could not file the written statement because of the dilatory tactics adopted by his principal, the defendant no. 2 who did not cooperate him in collecting necessary documents so as to make the written statement finally ready and file the same. These are the reasons which are projected as sufficient cause to have prevented the appellant from participating in the suit wherein ultimately exparte the preliminary decree has been passed. 4. The present appellant has absolutely no independent claim over the subject matter of the suit. Accepting the power of attorney said to have been executed by the defendant no. 2 in his favour, he remains the agent of defendant no. 2 more so being appointed during the pendency of the suit so as to represent defendant no. 2 in the suit and do the needful thereafter. But all that is for and on behalf of defendant no. 2 and not in his individual capacity having any independent claim over the subject matter. Merely because he has been erroneously added as a party in the suit, he cannot be said to be having any such right over the subject matter standing to be adjudicated in the suit, his principal being a party as a defendant and as this deed of power of attorney has come into existence during the suit. In the present suit, however when the principal and agent are parties as defendant no. 2 and 6 respectively, the agent cannot complain against the exparte preliminary decree when the principal remains silent and has absolutely no grievance. It is the pertinent to note that the principal in the suit is also not represented by the agent and that is also not the situation. 2 and 6 respectively, the agent cannot complain against the exparte preliminary decree when the principal remains silent and has absolutely no grievance. It is the pertinent to note that the principal in the suit is also not represented by the agent and that is also not the situation. This fundamental aspect has not been touched by the trial court which rather shows as to how in a mechanical manner, the trial court has proceeded further in going to dispose of the proceeding order -9 rule 13 of the Code on merit by going to examine witnesses leading to wastage of time and energy of all concerned including precious judicial time which is most important in the present days scenerio. For this reason, this Court does not feel the necessity of going to decide the appeal on merit as to whether it has been rightly said by the trial court that the appellant was not prevented by sufficient cause from participating in this suit being of the considered opinion that the appellant had no locus-standie to file the petition under order -9 rule 13 of the Code in his individual capacity and then also to file this appeal as such calling in question the rejection of the his petition by making his principal as the opposite party in the trial court as also one of the respondents in the present appeal. 5. For the aforesaid discussion and reasons, the appeal stands dismissed. No order as to cost.