Orissa High Court
Satrughana Giri vs Haramani Giri & Another on 6 April, 2021
HIGH COURT OF ORISSA: CUTTACK.
CMP NO. 1082 OF 2019
In the matter of an application under Article 227 of Constitution of India.
Satrughana Giri ...... Petitioner
-Versus-
Haramani Giri & another ...... Opp. Parties
For Petitioner : M/s. G.N. Mishra,
P. Mohanty, J.K. Pradhan
& B.R. Swain
For Opp. Parties : None
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Date of Order : 06.04.2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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ORDER
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 Judge-
II, 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, reported in 72
(1991) 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 (1986)
4 SCC 699: A.I.R. 1987 S.C. 42 Prakash Chandar
Manchanda v. Janki Manchanda. 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 of Prakash Chander Manchanda and another -v-
Smt. Janki Manchanda, reported in AIR 1987 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.
.................................
K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 6th April, 2021/bks
