Orissa High Court
Niranjan Biswal & Anr vs Sridhar Sahoo on 16 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.51 OF 2022
Niranjan Biswal & anr. .... Petitioners
Mr.A.P.Bose, Adv.
-versus-
Sridhar Sahoo .... Opposite Party(s)
Mr.M.M.Patnaik, Adv.
CORAM:
JUSTICE BISWANATH RATH
ORDER
16.3.2022
Order No.
03. 1. Heard learned counsel for the Parties.
2. The CMP involves a challenge to the rejection of an
Application under Order 9 Rule 7 of C.P.C. at the instance of the
Defendants on their coming to be ex parte by the trial court.
3. There is no dispute in the dates taking place in the meantime,
such as by order dated 11.9.2017 the trial court made the Defendants
ex parte for their not filing written statement in time. Taking plea of
ignorance and the reason in delay in filing written statement, the
Application under Order 9 Rule 7 of C.P.C. being moved was
seriously objected by the Plaintiff. Finally by order dated 12.4.2019
the trial court being dissatisfied with the reasons in making such
approach with inordinate delay has come to reject the Application
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under Order 9 Rule 7 of C.P.C., vide its order dated 18.12.2021
involving the Application under Order 9 Rule 7 of C.P.C. filed on
12.4.2019.
4. Learned counsel for the Petitioners taking the pleas taken in
the CMP as well as the plea in the Application under Order 9 Rule 7
of C.P.C. for their bringing to the notice of the stage of the suit
submitted that trial is already commenced and P.W.1 already
examined, learned counsel for the Petitioners contended that for the
settled position of law requiring all attempts by the trial court to give
a contest judgment and decree and in the event there was any
difficulty on the part of the Plaintiff on setting aside the ex parte
order involved therein, nothing prevented the trial court to allow
such Application on grant of cost. It is keeping in view that the
Defendants are prohibited from having a contest, decision involving
nature of the suit involved, learned counsel for the Petitioners prayed
this Court for interfering with the impugned order and passing
appropriate order.
5. Learned counsel for the Plaintiff, however while objecting
the request of the learned counsel for the Defendants brought to the
notice of this Court that the Defendants were set ex parte on
11.9.2017 and the Application under Order 9 Rule 7 of C.P.C. for
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setting aside should have come at least within a reasonable period.
Further once the Defendants knew that they have been set ex parte
for their non-filing of written statement, delay, if any, explained
through such application even is not proper and reasonable. Taking
to the observation of the trial court in rejection of the application
involved, an attempt is made by the learned counsel for the Plaintiff
to satisfy this Court that the impugned order is justified and thus
requested this Court not to interfere with the impugned order thereby
dismissing the CMP.
6. Considering the rival contentions of the Parties, this Court
finds, there is no dispute that the Defendants were set ex parte for
their not filing written statement in due time. Even though there has
been time stipulation in the amended provision of the Civil
Procedure Code requiring written statement to be filed in time, yet
there has been change in the position by virtue of decision of the
Hon'ble apex Court as well as this Court expanding filing of written
statement but however for the reasonable circumstance.
This Court here considering the rival contentions of the Parties finds
that the Defendants were set ex parte on 11.9.2017. The Application
under Order 9 Rule 7 of C.P.C. along with application to accept the
written statement came to be filed on 12.4.2019. There is
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undisputedly delay of more than one and half years in bringing such
Application. Further there is also commencement of trial to the
extent completion of examination of P.W.1. During the pendency of
the CMP, there is again loss of almost 5 years. It is at this stage of
the matter, looking to the settled position of law again requiring
closure of the suit on contest of the Parties and to avoid the ex parte
judgment and decree to avoid multiplicity of litigations and
unnecessary litigations, this Court looking to the stage of P.W.1
already examined finds, in the event there is interfering in the ex
parte order involving the Defendants, there would be definite
prejudice to the Plaintiff for sustaining of huge loss of time in the
meantime. Keeping in view the above, this Court finds, in allowing
the Defendants to have a contest on disposal of the suit, it is also
required to look to the prejudice and suffering of the Plaintiff.
7. Keeping the above in view, while deprecating the manner of
disposal of Application under Order 9 Rule 7 of C.P.C., this Court
while interfering with the impugned order at Annexure-1, setting
aside the same and allowing the Application under Order 9 Rule 7 of
C.P.C. at the instance of the Defendants directs the trial court to
accept the written statement, which is already on Board along with
the Application under Order 9 Rule 7 of C.P.C., subject to however
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payment of cost of Rs.5,000/- (rupees five thousand) to be paid to
the Plaintiff at least within a period of fifteen days, as undertaken.
Copy of this order along with the receipt of payment of cost being
filed, the written statement will be accepted. Considering that there
is already examination of P.W.1, in the event of any application filed
by either of the Parties for chief and/or cross-examination dependent
on the written statement plea, the trial court shall do well in recalling
such witnesses and providing the Parties applying opportunity of
chief and/or cross-examination.
8. The CMP stands disposed of with the above order.
(Biswanath Rath)
Judge
M.K.Rout
