Muralidhar Mishra vs Manjulata Nanda
2023 Latest Caselaw 3324 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 CMP No.216 of 2023
                 Muralidhar Mishra                     ....       Petitioner
                                         Mr.Sanjeeb Chakravarty, Advocate

                                          -versus-
                 Manjulata Nanda                         ....         Opp. Party

                          CORAM:
                          JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             12.04.2023
 2.         1.      This matter is taken up through Hybrid mode.

2. Order dated 27th January, 2023 (Annexure-3) passed by learned Additional District Judge, Athagarh in FAO No.8 of 2022 is under challenge in this CMP, whereby learned appellate Court dismissed the appeal ex-parte and confirmed the Judgment and order dated 17th October, 2022 (Annexure-2) passed by learned Senior Civil Judge, Athagarh in CMA No.62 of 2019 (arising out of MAT Case No.94 of 2014) dismissing an application under Order IX Rule 9 read with Section 151 CPC.

3. Mr. Chakravarty, learned counsel for the Petitioner submits that MAT Case No.94 of 2014 was filed for dissolution of marriage with the Opposite Party-Wife by a decree of divorce. Due to communication gap between the Petitioner and his counsel steps could not be taken to pursue the MAT Case. Accordingly, the same was dismissed for default vide order dated 28th March, 2017. Petitioner was not aware of the same. However, in the year 2019, the Petitioner having come to know about the same, filed an application under Order IX Rule 9 CPC. It is fairly conceded by Mr. Chakravarty, learned counsel

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that neither the petition under Order IX Rule 9 CPC was properly drafted nor any application for condonation of delay was filed along with the same. Thus, neither learned trial Court nor learned appellate Court has committed any error in rejecting the prayer of the Petitioner in the MAT Case. 3.1 However, by said order the valuable right of the Petitioner to pursue the matter for dissolution of marriage with the Opposite Party is taken away. He, therefore, submits that the Petitioner may be permitted to file a fresh application under Order IX Rule 9 CPC to restore the MAT Case along with an application for condonation of delay.

5. Taking into consideration the submission of learned counsel for the Petitioner, this Court, without interfering with the impugned order under Annexures-2 and 3, disposes of the CMP with an observation that if the Petitioner files a fresh properly constituted application under Order IX Rule 9 CPC along with an application for condonation of delay the same shall be considerate in accordance with law giving opportunity of hearing to the parties concerned.

5.1 This Court makes it clear that it has not expressed any opinion on the merit of the case of the Petitioner.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge s.s.satapathy