Orissa High Court
Dipak Kumar Das vs Ashok Kumar Das And Another on 6 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 101 OF 2023
Dipak Kumar Das .... Petitioner
Mr. Sidharth Shankar Padhy, Advocate
-versus-
Ashok Kumar Das and another .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 06.02.2023
01. 1. This matter is taken up through hybrid mode.
2. Order dated 4th January, 2023 (Annexure-9) passed by
learned Senior Civil Judge, 1st Court, Cuttack in C.S.(I) No.427 of
2022 is under challenge in this CMP, whereby rejecting an
application to recall the orders dated 28th July, 2022 and 19th
November, 2022, learned trial Court confirmed the order in
refusing to set aside the ex parte order.
3. Mr. Padhy, learned counsel submits that although the
Petitioner had entered appearance in I.A. filed under Order
XXXIX Rules 1 and 2 C.P.C., but due to miscommunication, he
could not file any appearance memo/Vakalatnama in the suit
itself. Accordingly, the Defendant No.1-Petitioner was set ex
parte on 28th July, 2022. On 29th September, 2022, the Defendant
No.1-Petitioner filed an application to set aside the ex parte order
and to permit him to file written statement. In the said petition a
ground was taken that the Petitioner was suffering from hepatitis
and could not appear in the suit and file written statement.
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4. Learned trial Court rejected the said application vide order
dated 19th November, 2022 under Annexure-6 holding that there
was no document in support of illness of the Petitioner filed along
with the petition for setting aside the ex parte order. Accordingly,
the said application was rejected for want of sufficient cause for
non-appearance of the Petitioner, when he was set ex parte. After
obtaining document, the Petitioner filed an application to recall
the aforesaid orders. But, learned trial Court rejected the
application on the ground that the certificate in support of illness
of the Petitioner was obtained on 1st August, 2022 and in the
meantime, the Court had already heard the argument. Hence, the
petition for recall of the aforesaid orders was rejected.
5. Mr. Padhy, learned counsel for the Petitioner submits that
if opportunity is given, the Petitioner can file the written
statement within a period of seven days and contest the suit. The
suit has been filed for permanent injunction and unless the
Petitioner is given an opportunity to file written statement and
contest the suit, he will be seriously prejudiced.
6. Upon hearing learned counsel for the Petitioner and on
perusal of the record, it appears that the Petitioner was set ex
parte on 28th July, 2022. It also appears that although he was
entered appearance in I.A. on the very same day, he did not file
any appearance memo in the suit. Thus, the grounds taken by the
Petitioner that he was suffering from hepatitis and could not take
step for appearance, cannot be believed. It further appears that the
application to set aside the ex parte order was filed on 29th
September, 2022. By that time, the evidence of the Plaintiff was
closed. Thus, at this stage, the Petitioner cannot be permitted to
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file written statement in view of the ratio decided in the case of
Arjun Singh -v- Mohindra Kumar and others, reported in AIR
1964 SC 993. At present, the suit is posted for judgment, as
submitted by Mr. Padhy, learned counsel for the Petitioner. Thus,
no fruitful purpose will be served in entertaining the application.
7. Accordingly, the CMP being devoid of any merit stands
dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
