Orissa High Court
Jayanti Kumari Jena @ Jayanti Jena vs Sasmita Jena And Another on 1 August, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2023 10:28:33
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 585 OF 2023
Jayanti Kumari Jena @ Jayanti Jena .... Petitioner
Mrs. Sujata Jena, Advocate
-versus-
Sasmita Jena and another .... Opp. Parties
Mr. Prasanna Kumar Mishra, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.08.2023
01. 1. This matter is taken up through hybrid mode.
2. Vakalatnama filed by Mr. Prasanna Kumar Mishra,
learned counsel on behalf of the Opposite Parties in Court today
is taken on record.
3. Judgment dated 1st May, 2023 (Annexure-4) passed by
learned Additional District Judge, Gunupur in F.A.O. No.05 of
2022 is under challenge in this CMP, whereby dismissing the
appeal, it confirmed the order dated 31st October, 2022
(Annexure-3) passed by learned Senior Civil Judge, Gunupur in
C.M.A. No.2 of 2018 (arising out of Intestate Case No.1 of
2011) thereby rejecting an application under Order IX Rule 13
C.P.C.
4. Mrs. Jena, learned counsel submits that the Petitioner is
the Respondent No.2 in Intestate Case No.1 of 2011. Though
she filed written statement, but due to communication gap, she
could not appear and contest the proceeding. Hence, she was set
ex parte. During pendency of the Intestate Case, Respondent
No.1 had died. Hence, the Intestate Case abated against her.
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2023 10:28:33
Since Respondent No.2-Petitioner along with Respondent No.3
did not contest the proceeding for issuance of succession
certificate, it was allowed ex parte. The Respondent No.2-
Petitioner could not contest the Intestate Case as she was neither
intimated over phone or through letter by her counsel. However,
she came to Gunupur on 27th October, 2018 and came to know
that ex parte judgment has already been passed on 18th
September, 2017. Thus, delay occurred in filing the petition
under Order IX Rule 13 C.P.C. is bona fide. Due to
communication gap, she could not appear and contest the
Intestate Case. Learned trial Court dismissed the application
stating it to be not a sufficient ground to set aside the ex parte
judgment. Learned appellate Court refused to interfere with the
order under Annexure-3 observing that the ground taken by the
Petitioner is not believable. It is her submission that since the
Petitioner has filed her written statement and wants to contest
the Intestate Case, she should be given an opportunity without
adhering to the hyper technicalities in preventing her from
contesting the case. She, therefore, prays for setting aside the
impugned orders under Annexures-3 and 4 and prays for a
direction to set aside the ex parte order passed in Intestate Case
No.1 of 2011 and to permit the Petitioner to contest the said
proceeding.
5. Mr. Mishra, learned counsel appearing for the Opposite
Parties (the Petitioners in Intestate Case No.1 of 2011) submits
that both the Courts have concurrently held that the Petitioner
failed to assign any sufficient cause for setting aside the ex parte
order passed in Intestate Case No.1 of 2011. This being a finding
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2023 10:28:33
of fact should not be interfered in a proceeding under Article 227
of the Constitution. He further submits that although oral
evidence was led, but no material was placed by the Petitioner in
support of her case. Hence, the CMP should be dismissed.
6. Considering the submissions made by learned counsel for
the parties and on perusal of the record, it appears that the
grounds taken by the Petitioner for not contesting the Intestate
Case was that she was not intimated by her learned counsel
about the proceeding. Admittedly, the Petitioner has filed
written statement in Intestate Case. Thus, it appears that she is
interested to contest the proceeding. She is a lady and was
staying at Nabarangpur. Thus, it was not expected on her part to
be present in Court on all the dates on which her presence is not
required. Although it is seriously contested by the Opposite
Parties that the Petitioner is adhering to the falsehood to linger
the proceeding, but no convincing material is available on record
to disbelieve the grounds taken by the Petitioner for setting aside
the ex parte order passed in Intestate Case No.1 of 2011.
7. Admittedly, there is some delay in filing the petition
under Order IX Rule 13 C.P.C.. Since the Petitioner is interested
to contest the Intestate Case, she should be given another
opportunity for the same.
8. Accordingly, the impugned orders under Annexures-3
and 4 are set aside. Consequently, the ex parte order passed in
Intestate Case No.1 of 2011 is also set aside. The Respondent
No.2-Petitioner shall be given an opportunity to contest the
Intestate Case in accordance with law.
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2023 10:28:33
9. The aforesaid direction is subject to payment of cost of
Rs.7,500/- (Rupees seven thousand five hundred only) to the
Opposite Parties within a period of fifteen days hence. To avoid
further delay, the parties are directed to appear before learned
Senior Civil Judge, Gunupur on 14th August, 2023 along with
certified copy of this order to receive further instruction in the
matter.
10. With the aforesaid observation and direction, this CMP is
disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
