Orissa High Court
Guna Alis Gunadhar Nayak vs Sabita Nayak Alias Mohapatra & on 16 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.25241 of 2013
Guna Alis Gunadhar Nayak .... Petitioner(s)
Mr. D. Mohapatra,
Advocate
-versus-
Sabita Nayak Alias Mohapatra & .... Opposite Party(s)
Anr.
Mr. R.B. Mishra,
Advocate for O.P.1
CORAM:
JUSTICE BISWANATH RATH
ORDER
16.05.2022
Order No.
6. 1. This matter involves rejection of an application U/o.9 Rule
13 of C.P.C. by the original court and thereafter the appeal also
appears to have been dismissed.
2. Taking this Court to the grounds taken in the rejection of the
application U/o.9 Rule 13 of C.P.C. Mr. Mohapatra, learned counsel
for the Petitioner disclosing the date of events contended that the
defendant herein was set ex parte on 17.07.2003, further the ex parte
judgment was passed on 8.11.2005 and Order 9 Rule 13 application
was brought on record on 6.07.2006. Taking this Court to the
provision at Order 9 Rule 13 of C.P.C. Mr. Mohapatra, learned
counsel for the Petitioner submitted that the legal provision
prescribes 30 (thirty) days' time for bringing the application U/o.9
Rule 13 of C.P.C. and there is maximum seven months delay in
bringing such application. Looking to the ex parte judgement came
to be passed on 8.11.2005 Mr. Mohapatra, learned counsel submitted
that even assuming that the Petitioner fails on medical account, but
// 2 //
looking to the nature of the suit directing for decree for specific
performance of contract and keeping in view the development taken
place in the meantime involving the disputed property already
transferred to 3rd party within the knowledge of the plaintiff,
Mr. Mohapatra, learned counsel for the Petitioner contended that in
the event the decree is allowed to remain, there will be serious
prejudice not only to the Plaintiff but also to the defendant and
ultimately there will be multiplicity of litigation for there is
involvement of 3rd party interested therein.
It is, in the above circumstance, Mr. Mohapatra, learned
counsel for the Petitioner submitted that both the Courts below have
failed in exercising the judicious mind involving such dispute and
urged this Court for interfering in both the orders and if necessary
allowing the application herein, but subject to award of cost.
3. Mr. Mishra, learned counsel for the Opposite Party No.1 in
his attempt to support the impugned order submitted that for the ex
parte order being passed in 2003 and we are now in 2022 and for
taking up the matter for final disposal almost after 19 years, in the
event the suit is reopened, the Petitioner will be seriously prejudiced
for no fault of him in spite of his enjoyment of the ex parte decree.
In the circumstance there is serious contest to the challenge made by
the Petitioner.
4. Considering the rival contentions of the parties, this Court
though finds, there is no written statement filed as of now, however
pleadings disclose that the very same property has already been sold
to the Opposite Party No.2 and not only that being conscious of this
the Opposite Party No.2 was made a party to the suit proceeding
none else than the plaintiff.
// 3 //
5. Considering the rival contentions of the parties and keeping
in view the loss of time in between as well as the sufferings of the
Plaintiff/Opposite Party for no fault of him, this Court, in the interest
of justice, is of the view that there should be allowing of application
and as there is definite prejudice for the loss of time to the plaintiff,
appropriate cost should have been awarded. With an aim for logical
end of this nature of suit, this Court finds, there is failure of
application of judicious mind by both the Courts below. In the
process this Court interfering in the impugned orders, sets aside the
same and remits the suit to the stage dated 17.07.2003. While
permitting the Petitioner-defendant to appear before the trial court
along with a copy of this order and also with the written statement
on 20th June, 2022, also directs, the suit will be tried afresh with full
opportunity to all concerned. Further considering that there is loss of
19 years' time in the meantime, this Court keeping in view the
sufferings of the plaintiff for no fault of him, awards a cost of
Rs.20,000/- (rupees twenty thousand) only to be paid by the
defendant to the plaintiff in the meantime or on the date of
appearance before the trial court itself. The suit will be reopened
subject to however the defendant's filing the written statement on
the date fixed and payment of cost. Further considering that the suit
is pending since 2001, this Court directs the trial court to conclude
the suit vide C.S. No.235 of 2001 within a period of one year.
6. The writ petition stands disposed of with the above direction.
(Biswanath Rath)
Judge
Ayaskanta Jena
