Orissa High Court
Sudharani Dey vs Basanti Jena on 10 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.4997 of 2010
Sudharani Dey .... Petitioner(s)
Mr. B.P. Dhal,
Advocate
-versus-
Basanti Jena .... Opposite Party(s)
Mr. A.K. Nath,
Advocate
CORAM:
JUSTICE BISWANATH RATH
ORDER
10.05.2022
Order No.
I.A. No.864 of 2015
09. 1. This matter is taken up through hybrid arrangement (Virtual
/ Physical Mode).
2. This I.A. is filed for condonation of delay in filing the
applications for setting aside the abatement and substitution in
respect of the deceased Petitioner.
3. Considering the rival contentions of the parties, this Court
condones the delay in filing the applications for substitution and
setting aside the abatement.
4. The I.A. is accordingly disposed of.
(Biswanath Rath)
Judge
10. I.A. No.863 of 2015
1. Considering the rival contentions of the parties and while
allowing this I.A., this Court though finds, there is no necessity for
// 2 //
filing a petition to set-aside the abatement in a writ petition, however
allows the application.
2. The I.A. is accordingly disposed of.
(Biswanath Rath)
Judge
11. I.A. No.865 of 2015
1. This I.A. has been filed for substitution as against the
deceased Petitioner.
2. Considering the averments made in this I.A., the application
for substitution as against the deceased Petitioner is allowed.
3. Learned counsel for the substituted Petitioner is directed to
bring the legal heirs of the deceased Petitioner to the fold of the writ
petition by making the correction through handwritten in Court
today.
4. The I.A. stands disposed of.
(Biswanath Rath)
Judge
// 3 //
12. W.P.(C) No.4997 of 2010
1. This writ petition involves a challenge to the judgment in
C.M.A. No.489/2004 arising out of C.S. No.42/03-I involving
rejection of an application U/o.9 Rule 13 of C.P.C. at the instance of
the sole defendant, who was set ex parte by the order of the trial
court dated 31.07.2003 and the suit involves an ex parte judgment
dated 20.04.2004.
2. Being aggrieved by the order of rejection of an application
U/o.9 Rule 13 of C.P.C., the sole defendant undertook the exercise
of appeal vide F.A.O. No.12 of 2010 which again got dismissed by
the lower appellate court. In assailing the impugned order at
Annexures-2 & 3 taking this Court to the whole background
involving the matter Mr. Dhal, learned counsel for the Petitioners
contended that the defendant in the suit was in fact taken care of by
the power of attorney holder of the sole defendant by none else than
her husband. It is also contended that for the illness of the husband at
the relevant point of time, there was natural non-appearance of the
power of attorney holder, Lawyer engaged even did not take proper
step and undisputedly there is non-cooperation by the defendant, but
however, in the peculiar circumstance prevailing at the relevant
point of time. The absence of defendant remains bona fide. It is, in
the above background of the matter Mr. Dhal, learned counsel for
the Petitioners contended that looking to the nature of the suit
involved, in the event there was any difficulty on the part of the
plaintiff found by the trial court, the C.M.A involved could have
been allowed with award of cost at least to see an effective
adjudication of the suit that too in the participation of the parties. It
is, in the above premises, Mr. Dhal, learned counsel for the
// 4 //
Petitioners submitted that there has been no application of proper
mind involving the serious nature of the dispute by both the Courts
and as a result there has been wrong judgment by both the courts
below.
3. Mr. Nath, learned counsel for the Opposite Parties, however,
taking this Court to the pela taken in the C.M.A, the documents
taken support therein, further for the evidence brought by the parties,
contended that there is reasonable consideration of the matter by the
trial court and for the lapses on the part of the defendant and further
for the defendants failing to establish a case of bona fide negligence,
there was no other option available with the trial court than to
dismiss the C.M.A. As a consequence there is also dismissal of the
appeal on the same premises. Mr. Nath, learned counsel for the
Opposite Parties thus claims for dismissal of the writ petition.
4. Considering the rival contentions of the parties this Court
finds, the suit involves a prayer for specific performance of contract
with alternate prayer for declaring that the plaintiffs have acquired
right title interest over the suit property by way of adverse
possession. Undisputedly, for not responding to the Court after
notice in the suit the defendant was set ex parte on 31.07.2003. The
suit was thereafter taken up for final hearing and it appears, by the
judgment dated 20.04.2004, there has been ex parte decree involving
the suit. This Court takes cognizance of the statement of the
defendant that since her husband being the power of attorney holder
was ill, she could not appear and take steps to save her position.
There was no reason for knowing the development in the suit and
further it is only after receipt of notice in the execution proceeding
she came to know that there is declaration of the defendant ex parte.
This Court perused the C.M.A application and the documents
// 5 //
appended thereto. True there is some lapses here and there in
establishing a clear case of bona fide negligence, but however there
has been material support with pleadings to at least support the case
of the defendants, since she was to be represented by the power of
attorney holder and the power of attorney since was continuously ill,
there is consequential suffering of the defendant. There also appears,
there has been material showing that the power of attorney was ill
for quite some time. Considering the material aspect even though
this Court finds, there is no sufficient proof for non-appearance
aspect of the defendant, but however, it is at this stage of the matter
looking to the nature of the suit, this Court is of the view that the suit
of this nature should be disposed of on contest rather ex parte. No
doubt for the defendants lapses and subsequently undertaking further
exercise there has been sufficient prejudice to the plaintiffs for not in
a position to rip the benefit of the ex parte decree. It is in this
scenario this Court finds, in the interest of justice while considering
allowing the C.M.A. No.489/ 2004 the trial court ought to have
considered the cost aspect. This Court, therefore, observes, there is
no right consideration of this nature of application by the trial court.
The lower appellate court also failed in exercising its judicious mind
in considering such application. As a consequence, this Court
interfering in both the orders and to see an effective adjudication of
the suit, sets aside the impugned order at Annexures-5 & 6.
Accordingly, while allowing the application U/o.9 Rule 13 of C.P.C
vide C.M.A No.489 of 2004, directs for re-opening of the suit vide
C.S. No.42/2003 at least with position from the date 31.07.2003.
Since there will be retrial of the suit, this Court directs the parties to
appear before the trial court along with a copy of this order on 19th
May, 2022 and on which date the defendant shall file written
// 6 //
statement and the trial shall be commenced in accordance with law.
It is, however, here considering the prejudice to the plaintiffs for loss
of time at least almost two decades in the meantime, this Court finds,
the plaintiffs are entitled to cost, which is quantified as Rs.20,000/-
(rupees twenty thousand) to be paid to the plaintiffs in the court
below at least within a period of two weeks hence. On payment of
cost and filing of a receipt in proof of the same, the suit shall be
freshly heard and decided and to be concluded within one year
thereafter. For there is already involvement of an execution
proceeding on recommencement of trial on payment of cost,
necessary affidavit being filed by the defendant in the Executing
Court, the Execution proceeding shall be declared closed.
5. The writ petition stands disposed of with the above direction.
(Biswanath Rath)
Judge
Ayaskanta Jena
