Orissa High Court
Sk. Pir Mahammad vs Sk. Abdul Raf & Ors on 27 April, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.517 of 2021
Sk. Pir Mahammad .... Petitioner(s)
Mr. S. Mishra,
Advocate
-versus-
Sk. Abdul Raf & Ors. .... Opposite Party(s)
Mr. S.K. Nayak,
Advocate
CORAM:
JUSTICE BISWANATH RATH
ORDER
27.04.2022
Order No.
02. 1. This matter involves rejection of an application U/o.9 Rule 7 of
C.P.C at the instance of the defendant.
2. Taking this Court to the application involved Mr. Mishra,
learned counsel for the defendant-Petitioner submitted that the suit was
posted to 18.02.2020 requiring appearance of the defendants and on the
said date it is averred that even though the family members of the
defendant had received notice and the Petitioner has not been served
with personally, but as the defendant was unwell, he could not make
his appearance and in the result this defendant was set ex parte on
18.02.2020 itself. Through the application it appears, the defendant
moved an application for exercise of power U/o.9 Rule 7 of C.P.C. but
however on 8.07.2021 i.e. almost after one & half year, but however
did have pleading on non-service of notice. Taking this Court to the
position of the defendant on the date the suit was fixed and as the
defendant was set ex parte, Mr. Mishra, learned counsel for the
Petitioner submitted that unless the defendant is permitted to contest
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the suit, there will be serious prejudice to the defendant, in the event
the suit is decided against him. Further fact has been brought to the
notice of this Court that the present suit involves declaration of the
judgment and decree already obtained by the defendant himself and
there is big stake involving the defendant. Mr. Mishra, learned counsel
for the Petitioner, therefore, contended that looking to the nature of the
suit there should be a decision in such suit in the contest of the parties.
There is an allegation that the judgment and decree involved therein is
also obtained behind back of the plaintiff.
It is, in the above background of the matter, taking this Court to
the impugned order an attempt is made to demonstrate that there has
been no proper consideration of the request involved therein and
further the lower court has failed to appreciate the suffering of the
defendant in not allowing the application U/o.9 Rule 7 of C.P.C. and
undertaking an ex parte disposal of the suit involved.
3. Mr. Nayak, learned counsel for the Opposite Parties, on the
other hand, in his opposition submitted that there is absolutely no head
and tail in the application. It is further contended that even assuming
that the defendant was unwell on 18.02.2020 but for the clear
disclosures therein, nothing prevented the defendant to at least bring an
application within a reasonable time. It is, on the premises of
belatedness in the submission of application further having no support
to the contention of illness, Mr. Nayak, learned counsel for the
Opposite Parties contended that there has been right appreciation of all
such aspect and there has been right rejection of the application U/o.9
Rule 7 of C.P.C. and there is no scope for interfering in the same.
It is, in the circumstance, Mr. Nayak, learned counsel for the
Opposite Parties opposed the claim of the Petitioner.
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4. Considering the rival contentions of the parties, this Court
finds, there is no dispute that the suit was posted to 18.02.2020 and
there is clear averment by the defendant that on the date of posting of
the suit he was ill, which became an impediment for the defendant to
appear in the Court. This Court here finds substance in the submission
of Mr. Nayak, learned counsel for the Opposite Parties that even
assuming that the defendant was ill on 18.02.2020, nothing prevented
the defendant to approach the trial court at least within a reasonable
time. However at this stage considering the nature of the suit involved
and for the opinion of this Court, if such nature of the suit is allowed to
be concluded ex parte, there will be serious prejudice and there may be
further legal complications between the parties in several courts, to
avoid any further loss of time and also further complications, this Court
finds, the suit requires a contest disposal. At the same time the plight of
the plaintiffs is also to be kept in mind not only for the delayed attempt
by the defendant but also involvement of a mechanical application
therein. As a whole, keeping in view the prejudice to the defendant, in
the event the suit is allowed to be decided ex parte, this Court
interferes in the impugned order and sets aside the same and at the
same time this Court also permits the defendant to file written
statement at least within a period of ten days from today.
Considering the plight of 15 plaintiffs for their suffering for no
fault of them, this Court directs the defendant-Petitioner to pay a sum
of Rs.15,000/- (rupees fifteen thousand) only to the Plaintiffs
(Rs.1000/- rupees one thousand in favour of each of the Plaintiffs).
Payment should be made prior to filing of written statement. Here
considering the stage of the suit pending for judgment this Court
directs, after filing of the written statement by the defendant, the
evidence will be reopened and the plaintiffs will be permitted to have
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their chief involving the written statement and defendants will also be
permitted to have evidence and cross involving the written statement
also with opportunity of cross examination to the plaintiffs. Entire
exercise be concluded within a period of nine months. It is also made
clear that cost be paid before filing of the written statement and if the
defendant files receipt along with written statement, the written
statement will be accepted and the proceeding will be undertaken in
terms of the direction of this Court made hereinabove.
5. The C.M.P stands disposed of with the above direction.
(Biswanath Rath)
Judge
Ayaskanta Jena
