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2021 DIGILAW 169 (ORI)

Satrughana Giri v. Haramani Giri

2021-04-06

K.R.MOHAPATRA

body2021
JUDGMENT K.R. Mohapatra, J. - This matter is taken up through video conferencing mode. 2. Heard Mr. G.N. Mishra, learned counsel for the Petitioner. None appears for the Opposite Parties in spite of valid service of notice as per office note dated 07.01.2021. 3. The Petitioner in this writ petition seeks to assail the order dated 17.08. 2019 (Annexure-2) passed by learned Addl. District JudgeII, Baripada in FAO No. 1 of 2016, whereby she confirmed the order dated 13.10.2015 (Annexure-1) passed by learned Civil Judge (Senior Division), Baripada in CMA No. 115 of 2014 (arising out of C.S. No. 304 of 2007) dismissing an application under Order IX Rule 13 C.P.C. filed by him. 4. Mr. Mishra, learned counsel for the Petitioner submits that the Petitioner as Defendant No.1 could not appear on the date of hearing of the suit due to his illness for which the suit for partition proceeded in his absence. Ex parte judgment was also passed on the very same day, i.e. on 26th June, 2013 and the decree was passed on 5th July, 2013 by learned Civil Judge (Senior Division), Baripada. The Petitioner thereafter filed CMA No. 115 of 2014 under Order IX Rule 13 C.P.C. for setting aside the ex parte decree, which was rejected on the ground that since the Petitioner was never set ex parte, the provision of Order IX Rule 13 C.P.C. is not applicable. Learned trial court further held that the medical certificate filed by the Petitioner in support of his illness was not proved by the treating physician. Accordingly, she dismissed the petition under Order IX Rule 13 C.P.C. vide judgment dated 13th October, 2015. Assailing the same, the Petitioner preferred FAO No. 1 of 2016, which was also dismissed vide order dated 17th August, 2019 holding that since the Petitioner was never set ex parte, the question of exercising power under Order IX Rule 13 C.P.C. does not arise. 5. Mr. Mishra, learned counsel for the Petitioner further submits that since the judgment in C.S. No. 304 of 2007 was passed ex parte against the Petitioner, the petition under Order IX Rule 13 C.P.C. is maintainable and in order to maintain a petition under Order IX Rule 13 C.P.C., a specific order setting the Petitioner ex parte is not required to be passed. In support of his case, he relied upon the decision of this Court in the case of Murali Patra v- Sunaram Singh,1991 72 CLT 244, wherein it has been held at paragraph-3 as follows: "3. As indicated, at the outset the scope and ambit of Order 17, Rules 2 and 3 fall for consideration in this case. If on a date fixed one of the parties to the suit remains absent and for that party no evidence has been led up to that date, the Court has no option but to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Code. After the amendment in 1976 to Order 17, Rules 2 and 3, in a case where the party is absent, the only course available is to proceed under Rule 2 in the manner prescribed in Order 17, Rule 3(b). Therefore, in the absence of defendant, the Court had no option but to proceed under Rule 2. The language of Rule 2 as stands presently clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes prescribed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3, even if a party is absent; but the same discretion is conditional, and is applicable in a case where a party which is absent has led some evidence or part of its evidence. In such a case the Court has to proceed to dispose of the suit on merits in one of the modes under Order 9. This view of mine gets countenance from a decision of the Supreme Court reported in Prakash Chandar Manchanda v. Janki Manchanda, (1986) 4 SCC 699 : A.I.R. 1987 S.C. 42 . That being the position, the learned Munsif was not justified in holding that the suit was disposed of in terms of Explanation to Rules 2, and Rule 3 of Order 17, and/or that the petition under Order 9, Rule 13, of the Code was not maintainable. The impugned order is, set aside. That being the position, the learned Munsif was not justified in holding that the suit was disposed of in terms of Explanation to Rules 2, and Rule 3 of Order 17, and/or that the petition under Order 9, Rule 13, of the Code was not maintainable. The impugned order is, set aside. The learned Munsif shall now decide the merits of the application under Order 9, Rule 13 of the Code." Hence, he prays for setting aside the impugned judgments under Annexures-1 and 2 and to remit the matter back to the learned Civil Judge (Senior Division), Baripada for consideration of the application of the Petitioner afresh keeping in view the ratio decided in the case of Murali Patra (supra). 6. On perusal of the materials available on record, it is apparent that although the Petitioner (Defendant No.1) appeared in C.S. No. 304 of 2007, but he had neither filed written statement nor entered into the witness box to lead evidence. The judgment in C.S. No. 304 of 2007 was also passed ex parte against the Defendants allotting 1/3rd share to each of the parties to the suit. The ratio decided in the case of Murali Patra (supra) makes it abundantly clear that when on the date to which the suit is adjourned for hearing any of the parties fails to appear the Court has the discretion to dispose of the suit in any of the modes provided under Order IX. Thus, there is no impediment for the Court to proceed with hearing of the suit without recording a formal order setting the Petitioner ex parte. In other words, an order setting the defendant ex parte is not sine qua non for entertaining an application under Order IX Rule 13 C.P.C. The nature of the judgment and decree is determinative in taking a decision with regard to maintainability of a petition under Order IX Rule 13 C.P.C. 7. In view of the language and tenor of Order XVII Rule 2 C.P.C., it can be safely said that the Court can dispose of the suit ex parte when the Defendant fails to appear on the date of hearing of the suit. In the case at hand, the Court, in fact, proceeded ex parte and passed the impugned judgment in C.S. No. 304 of 2007 ex parte. Thus, a petition under Order IX Rule 13 C.P.C. is maintainable. 8. In the case at hand, the Court, in fact, proceeded ex parte and passed the impugned judgment in C.S. No. 304 of 2007 ex parte. Thus, a petition under Order IX Rule 13 C.P.C. is maintainable. 8. In the case of Prakash Chander Manchanda and another vSmt. Janki Manchanda, (1987) AIR SC 42 , the Hon'ble Supreme Court has made it clear that if the Defendant fails to appear on the date of hearing and no evidence is led on its behalf, the Court can proceed ex parte under Order IX C.P.C.. When an ex parte judgment and decree is passed in C.S. No. 304 of 2007, it hardly makes any difference, if a formal order setting the Petitioner ex parte has been passed or not. Rule 13 of Order IX C.P.C. relates to an ex parte decree and not an order. 9. In that view of the matter, the impugned judgments under Annexures-1 and 2 are not sustainable in law. Accordingly, the same are set aside. The matter is remitted back to the learned Civil Judge (Senior Division), Baripada to consider the CMA No. 115 of 2014 afresh on its own merit in accordance with law giving opportunity of hearing to the parties concerned keeping in mind the discussions made above. 10. With the aforesaid observation and direction, the CMP is disposed of. 11. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed vide Court's Notice No. 4587 dated 25th March, 2020.