Musa Dei vs Bidyadhar Palhar & Ors
2023 Latest Caselaw 260 Ori

             ORISSA HIGH COURT : C U T T A C K

                       W.P.(C) No.3457 of 2007

                  An application under Article 226 & 227 of
                      the Constitution of India, 1950

Musa Dei                                           : Petitioner

                                -Versus-

Bidyadhar Palhar & Ors.                            : Opposite Parties

For Petitioner                               : M/s. Miss. M. Mishra,
                                                    C. Mallick

For Opposite Parties                         : None

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 06.01.2023

1. Heard the submission of learned counsel for Petitioner.

2. This writ petition involves the following prayer:-

"It is therefore prayed that this Hon'ble Court may be pleased to quash the order dtd.24.07.1980 passed in T.S. No.69/79 and order dated 31.03.1981 passed in Misc. Case 201/80 and the order dtd. 01.08.1981 passed in Misc. Appeal No. 16/81 marked Annexure- 1, 2 and 3 respectively by issue of a writ of certiorari and further hold that the institution suit bearing No. 86/86 and T.A. 74/85 the Judgment of which have been passed on 28.10.1995 and 28.10.2006 and marked as Annexure 4 and 5 respectively were on account of the wrong legal advice;

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And further pass such other order and / or orders which is deemed proper for giving whole relief to the petitioner;"

.

3. Background involved in this case is that T.S. No.69/79 was filed making this Petitioner as defendant. In the first instance on 3.03.1980 the defendant was set ex parte and the suit proceeded and an ex parte decree was passed involved the suit on 24.07.1980. It appears being aggrieved by the ex parte decree ultimately the defendant brings an application U/o.9 Rule 13 of C.P.C. vide Misc. Case No.201/80. This Misc. Case having been rejected on 31.03.1981 there is filing of appeal vide Misc. Appeal No.16/81, which also got dismissed as appearing at Annexures-1, 2 & 3 respectively. Further background reveals, being advised the defendant preferred a fresh suit registered as T.S. No.86/86 to take out the ex parte decree. This suit having been dismissed the defendant proceeded in T.A. No.74/85 which has been disposed of allowing the appeal thereby taking out the judgment and decree in T.S. No.86/86.

4. Taking this Court to the whole background of the matter Miss Mishra learned counsel for Petitioner contended that institution of second suit was made in wrong advice of the counsel and for the background indicated hereinabove such suit will remain innocuous as defendant is not likely to get any result involving such suit. Finding no respite in overcoming the ex parte decree and for rejection of application U/o.9 Rule 13 of C.P.C as well as dismissal of Misc. Appeal No.16/81 even in consideration of the T.S. No.86/86, the writ petition has been brought seeking direction to set aside the order at Annexures-1, 2 & 3 and further also for declaring the T.S. No.86/86 becomes innocuous.

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5. Considering the submission of Miss Mishra, learned counsel for Petitioner and looking to the whole background of the matter, this Court finds, undisputedly T.S. No.69/79 was decreed ex pate and the Petitioner moved application U/o.9 Rule 13 of C.P.C. which appears to have been made with some delay, but however after the ex parte decree is passed. This Court here observes, since the Petitioner was pursuing her remedy under the provision of Order 9 Rule 13 of C.P.C .and then appeal, the scope of first appeal is also very much taken away. At this stage considering the second round of litigation at the instance of the defendant through T.S. No.86/86 this Court finds, even though the suit has been restored in allowing T.S. No.74/95, however for the technical difficulty there cannot be any finality to T.S. No.86/86 coming to the rescue of the Petitioner. If the Petitioner is so advised, she may withdraw T.S. No.86/86 by filing appropriate application for its remaining no help.

6. Coming back to the challenge of the Petitioner to the order at Annexures-1, 2 & 3, this Court finds, there is no scope of filing first appeal involving such ex parte decree. Looking to the nature of dispute seeking declaration of right, title and interest over the disputed property and as the defendant was contesting the suit, this Court observes, unless the T.S. No.69/79 is restored to be disposed of in the involvement of the defendants, there will be closure of all opportunity to the defendants. At the same time loss and suffering of the plaintiff cannot be lost sight off. As a consequence this Court interfering in the order at Annexures-1, 2 & 3, sets aside the same and restores T.S. No.69/79 thereby bringing it back to the stage declaring the defendant ex parte and directs the trial court to recommence the title suit and dispose it afresh in the involvement of the plaintiff as well as defendant. It is at this stage of the matter considering

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that the suit is of the year 1979 and the litigation is still on even after 44 years, this Court for restoration of the suit, looking to the suffering of the plaintiffs and considering the status of the defendant being a labourer also imposes a cost of Rs.2000/- (rupees two thousand only) on the defendant to be paid to the plaintiffs. The defendant is directed to deposit such cost before the trial court along with copy of the order on 25th January, 2022. On deposit of cost the suit will be restored.

7. Since the plaintiffs are not cooperating in the hearing of the matter, it is also open to the trial court to issue fresh notice to the plaintiffs and the suit is directed to be decided in their presence.

8. The Writ Petition succeeds, however, with cost as indicated hereinabove.

...............................

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 6th January, 2023// Ayaskanta Jena, Senior Stenographer