Orissa High Court
Jhili Behera vs Sudastna Behera And Others .... Opp. ... on 13 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack IN THE HIGH COURT OF ORISSA AT CUTTACK
Date: 14-Dec-2023 17:24:57
CMP No. 1356 OF 2023
Jhili Behera .... Petitioner
Mr. Amaresh Tripathy, Advocate
-versus-
Sudastna Behera and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 13.12.2023
1. 1. This matter is taken up through hybrid mode.
2. Judgment dated 3rd October, 2023 (Annexure-6) passed
by learned District Judge, Ganjam, Berhampur in F.A.O. No.18
of 2023 is under challenge in this CMP, whereby dismissing the
appeal, learned appellate Court confirmed the order dated 16th
March, 2023 (Annexure-4) passed by learned Senior Civil
Judge, Berhampur in C.M.A. No.5 of 2022 (arising out of C.S.
No.621 of 2014) rejecting an application under Order IX Rule 13
CPC.
3. It is submitted by Mr. Tripathy, learned counsel that the
Defendant is the Petitioner in this CMP. She had never received
any notice in C.S. No.621 of 2014. But the Plaintiffs managed to
make the notice sufficient on her prevailing over the process
server. It is also submitted that by forging her signature, the
Plaintiffs-Opposite Parties engaged counsel of their choice who
had appeared only once in the suit and prayed for adjournment to
file the written statement. Thereafter he did not appear. Thus, an
ex parte decree was passed on 21st December, 2016. The
Petitioner could not know about the said ex parte judgment and
decree till final decree proceeding was initiated and she received
notice in the final decree proceeding. Upon receipt notice in the
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack final decree proceeding, she filed CMA No.5 of 2022 to set aside
Date: 14-Dec-2023 17:24:57
the ex parte decree, which was dismissed vide order dated 16th
March, 2023 under Annexure-4. Assailing the same, the
Petitioner preferred F.A.O. No.18 of 2023, which was also
dismissed vide order under Annexure-6. Hence, this CMP has
been filed.
4. It is his submission that at no point of time notice was
ever served on the Petitioner and she had never engaged any
counsel to appear on her behalf. It is further submitted that the
Plaintiffs by playing fraud on Court engaged counsel of their
choice by forging the signature of the Petitioner. The said
counsel appeared before learned trial Court only once and
prayed for adjournment to file the written statement. Thereafter,
he did not appear for which the Petitioner was set ex parte and
subsequently ex parte judgment and decree was passed. She
being a lady had no knowledge of intricacies of law. As such,
immediate steps for setting aside the ex parte decree could not
be taken.
5. Learned trial Court as well as learned appellate Court
holding that the Petitioner could not prove the fact that her
signature was forged and the Plaintiffs engaged a counsel of
their choice on behalf of the Petitioner, refused the prayer to set
aside the ex parte decree. Hence, he prays for setting aside the
impugned orders under Annexures-4 and 6 and to permit the
Petitioner to contest the suit by filing written statement.
6. Taking note of the submission made by learned counsel
for the Petitioner and on perusal of the record, more particularly,
order under Annexure-4, it appears that the Petitioner had
engaged Mr. N.P. Panda, Advocate to appear on her behalf. He
had appeared on 9th July, 2015. Thereafter the Petitioner did not
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack file the written statement for which she was precluded from
Date: 14-Dec-2023 17:24:57
filing the written statement vide order dated 3rd November, 2015
and was set ex parte on 22nd March, 2016. Thereafter, ex parte
judgment was passed on 21st December, 2016.
7. Although it is alleged that the Petitioner had never
engaged Mr. N.P. Panda, Advocate to appear on her behalf and
her signature was forged, but she could not prove the same by
adducing evidence. The Petitioner could not also prove that the
notice was not served on her. Taking note of the materials
available on record, learned trial Court rejected the petition
under Order IX Rule 13 CPC vide order dated 16th March, 2023.
Learned appellate Court taking note of the submission made by
learned counsel for the parties and the materials available on
record came to hold the application under Order IX Rule 13 CPC
was filed after a lapse of five years and the Petitioner could not
establish her case to the effect that Mr. N.P. Panda, Advocate
appeared on her behalf by forging her signature.
8. Since learned Courts recorded finding on assessment of
evidence available on record, I am not inclined to interfere with
the same in absence of any evidence to the contrary. It further
appears that the allegations made by the Petitioner could not be
proved by her. Thus, this Court is of the considered opinion that
learned Courts have committed no error in dismissing the
application under Order IX Rule 13 CPC.
9. Hence, the CMP being devoid of any merit stands
dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
