Orissa High Court
Benudhar Behera vs Kunjabehari Behera And Others on 21 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.464 of 2014
Benudhar Behera .... Appellant
Mr.A.Tripathy, Advocate
-versus-
Kunjabehari Behera and others .... Respondents
Mr.S.R.Patnaik, Advocate for Respondent Nos.1 & 2
Mr.G.P.Samal, Advocate
for Respondent Nos.3 to 10, 13 to 16 and 42 of 54.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
21.7.2022
Order No.
30. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Tripathy, learned counsel for the Appellant
and Mr.Pattnaik, learned counsel for Respondent Nos.1 & 2 and
Mr.G.P.Samal, learned counsel for Respondent Nos.3 to 10, 13 to
16 and 42 to 54.
3. The present appeal is directed against the impugned
order dated 31st July, 2014 of the learned Civil Judge
(Sr.Division), Kamakhyanagar in C.M.A.No.47 of 2012 arising
out of a petition under Order 9 Rule 13 C.P.C.
4. At the outset all the parties present before this Court
agrees for disposal of the appeal by this Court instead of sending
the same to the court of the learned District Judge.
5. The background facts of the case is that present
original Respondent No.1 and 2 were the plaintiffs before the
learned trial court and filed Civil Suit No.49 of 2010 praying for
partition. The present Appellant was defendant no.13 and rest of
the Respondents were the respective defendants in the suit. After
filing of the written statement by defendant no.13, the suit was
posted to 16th August, 2022 and then posted to 22nd August, 2022
for hearing/evidence. On 22nd August, 2022 no step was taken by
defendant no.13. As such he was set ex parte. Thereafter the
evidence was taken his absence and judgment was pronounced on
31st August, 2022 on contest against defendant nos.31 to 35 and
ex-parte against rest of the defendants including defendant no.13.
Knowing about the judgment, Defendant No. 13 approached the
learned trial court under Order 9 Rule 13 C.P.C. on 29th
September, 2012 to set aside the ex-parte judgment against him,
which was registered as C.M.A. No.47 of 2012. Learned trial
court rejected the prayer of defendant no.13 by the impugned
order dated 31st July, 2012, which is the subject matter of
challenge in the present appeal.
6. In the impugned order, learned trial court has
emphasized upon the stated illness of defendant no.13 and
disbelieving the medical documents as well as evidence of
defendant no.13 has rejected his prayer.
7. From the narration of facts, it is clear that after
defendant no.13 was set ex-parte on 22nd August, 2012, the ex
parte judgment was pronounced on 31st August, 2012. So within
nine days the evidence was completed, hearing was concluded
and judgment was pronounced and when the only contesting
defendant no.13 prayed to set aside the ex-parte judgment and to
give him opportunity of hearing, the same was also rejected by
the learned trial court.
8. In course of hearing, the notice of the Court was drawn
to W.S. filed by defendant no.13 where the specific averment has
been taken on his behalf that there was earlier partition of the suit
property. This Court had an occasion to see the judgment dated
31st August, 2012 passed in C.S.No.49 of 2010, which was
supplied by the parties in course of hearing. It is seen from the
said judgment of the learned trial court that the issue relating to
earlier partition has been answered against the pleading of
Defendant No.13. However, since main judgment of the suit
dated 31st August, 2012 is not the subject matter of the present
appeal, this Court refrains itself from entering into the merit of
the same.
9. But it is seen from the development of facts that the
evidence was taken, completed and judgment dated 31st August,
2012 was pronounced within nine days after defendant no.13 was
set ex-parte. Thus it is felt that defendant no.13 has been deprived
of substantial opportunity of hearing in the matter. As such, the
impugned order dated 31st July, 2014 is set aside and the matter is
remanded back to the learned trial court for fresh adjudication
from the stage as on 22nd August, 2012. Further considering time
elapsed in the meantime, Defendant no.13 is directed to pay cost
of Rs.2,000/-(Two thousand) to the plaintiffs within a period of
fifteen days from the date of appearance of the parties before the
trial court.
10. The parties present before this Court are directed to
appear before the learned trial court on 22nd August, 2022 and the
learned trial court shall take all endeavor to dispose of the suit
within a period of three months from the said date. The parties
are also directed to cooperate with the trial of the suit and not to
take any adjournment.
11. The appeal is disposed of in terms of the above
direction.
12. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
