Orissa High Court
Mahavir Bazar Laxmi Puja ... vs Prafulla Kumar Behera And Others on 8 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 1347 OF 2011
Mahavir Bazar Laxmi Puja Committee .... Petitioners
and another
Mr. Debendra Kumar Sahoo, Advocate
-versus-
Prafulla Kumar Behera and others .... Opp. Parties
Mr. D.P. Mohanty, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.08.2022
6. 1. This matter is taken up through hybrid mode.
2. The Petitioners in this writ petition seek to assail the
order dated 9th September, 2010 (Annexure-7) passed by
learned District Judge, Dhenkanal in Civil Revision No.06 of
2007, whereby he set aside the order dated 22nd June, 2007
passed by learned Civil Judge (Senior Division), Dhenkanal in
C.M.A. No.12 of 2004 allowing an application under Order IX
Rule 13 C.P.C. filed by them.
3. The Petitioners in this writ petition were Defendants in
T.S. No.29 of 1998 filed by the Plaintiff-Opposite Party No.1
for declaration of right, title and interest and recovery of
possession as well as for permanent injunction. Since the
Defendants took a plea of adverse possession in their written
statement, learned trial Court had directed them to begin the
hearing of the suit. On the date of hearing, although learned
counsel for the Defendants was present, he filed an application
for adjournment, which was rejected and the matter was posted
after lunch for leading evidence on behalf of the Defendants.
// 2 //
But learned counsel for Defendants being present in Court did
not produce any witness for leading evidence on behalf of the
Defendants. Accordingly, the evidence on behalf of the
Defendants was closed and the matter was posted for leading
evidence on behalf of the Plaintiffs. On recording of the
evidence from the side of Plaintiffs, the suit was disposed of on
1st May, 2004. Subsequently, an application under Order IX
Rule 13 C.P.C. in C.M.A. No.12 of 2004 was filed by
Defendants, which was allowed by learned Civil Judge (Senior
Division), Dhenkanal vide order dated 22nd June, 2007.
Assailing the same, the Plaintiff preferred Civil Revision No.6
of 2007, which was allowed vide order dated 9th September,
2010 under Annexure-7 holding that the revision is
maintainable and that since the suit was disposed of on contest,
no petition under Order IX Rule 13 C.P.C. was maintainable.
As such, the civil revision was allowed on contest by setting
aside the order dated 22nd June, 2007 passed in CMA No. 12 of
2004 under Order IX Rule 13 C.P.C.
4. Mr. Sahoo, learned counsel for the Petitioners relies
upon the decision in the case of Abhi Dehury and others -v-
Dakshya Dehury and others, reported in 113 (2012) CLT 4
and submits that since the Defendants were absent on the date
of hearing, learned trial Court ought to have proceeded under
Order IX C.P.C. by setting them ex parte and passed an ex
parte decree. Instead, learned trial Court has passed the
judgment and decree showing it to be contested one. Thus, the
ratio decided in the case of Abhi Dehury and others (supra) is
// 3 //
squarely applicable to the case at hand, in which it is observed
at paragraph-8 as under:
"8. In this case, the Learned Civil Judge proceeded to
dispose of the suit as a contested one instead of resorting
to Order IX of the Code. In spite of such disposal, the
judgment is an ex parte one. Hence, the aggrieved party
has two options; firstly, he may file an appeal against
such judgment. The Defendants having preferred an
application under Order IX, Rule 13 of the Code, the
Learned Civil Judge should have entertained the same &
allowed the Petitioners to examine all such witnesses &
produce such documentary evidence to establish the plea
that they were prevented by sufficient cause from
appearing in the Court on the date posted for hearing.
The Court of original jurisdiction having failed to do so,
this Court has no hesitation to hold that the procedure
adopted by the learned Civil Judge (Junior Division),
which has been upheld by the Learned District Judge is
erroneous & requires interference of this Court."
5. Learned revisional Court without taking into
consideration the same allowed the revision. Hence, the order
under Annexure-7 is not sustainable in the eyes of law. It is his
submission that once a party remains absent on the date of
hearing, the Court has no other option than to proceed under
Order IX C.P.C.. The said procedure having not been followed,
the decree even if shown to have been passed on contest, it is
an ex parte decree and application under Order IX Rule 13
C.P.C. was maintainable.
6. Mr. Mohanty, learned counsel for the Plaintiff-Opposite
Party No.1 objecting to the same submitted that the ratio
decided in Abhi Dehury and others (supra) is not applicable to
the case at hand. On the date of posting of the suit for leading
evidence on behalf of the Defendants, learned counsel for the
Defendants filed an application for adjournment. The said
// 4 //
application was rejected and the matter was posted after lunch
interval of the same day for leading evidence on behalf of the
Defendants. Being present in Court, they failed to produce any
witness for leading evidence on their behalf. As such, the
evidence from the side of Defendants was closed and learned
trial Court proceeded to record the evidence on behalf of the
Plaintiffs and passed a contested decree. Neither said order was
challenged before any higher forum nor can it be said that the
Defendants were absent on the date of hearing of the suit. As
such, learned revisional Court has committed no error in
passing the impugned order under Annexure-7. He, therefore,
prays for dismissal of the writ petition.
7. Taking into consideration the rival contentions of the
parties and case law cited, it is apparent that following the
provision under Order XVIII Rule 1 C.P.C., the Defendants
were directed to begin the hearing of the suit. On the date the
matter was posted for leading evidence on behalf of the
Defendants, learned counsel for the Defendants being present
filed an application for adjournment. The said application was
rejected and the matter was posted for leading evidence on
behalf of the defendants after lunch break of the same day.
Although learned counsel for the Defendants was present when
the matter was called for hearing, he did not prefer to produce
any witness on behalf of the Defendants. Thus, it cannot be said
that the Defendants were absent on the date of hearing of the
suit. They were very much present and preferred not to lead
any evidence on their behalf.
// 5 //
8. In view of the peculiar facts and circumstances of the
case, the ratio decided in the case of Abhi Dehury and others
(supra) is not applicable to the case at hand.
9. Thus, in view of the discussion made above, learned
revisional Court has committed no error in allowing the
revision by setting aside the impugned order under Annexure-7
holding that the provision under Order IX Rule 13 C.P.C. is not
applicable to the case at hand.
10. Accordingly, the writ petition being devoid of any merit
stands dismissed.
11. The interim order dated 12th May, 2011 passed in Misc.
Case No.6461 of 2011 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
