Orissa High Court
Guna Ojha And Others vs Champa Ojha And Others on 20 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.573 of 2015
Guna Ojha and others .... Petitioners
Ms. Mamata Mishra, Advocate
-versus-
Champa Ojha and others .... Opp. Parties
Mr. Ajit Kumar Tripathy, Advocate
(For Opposite Party No.2)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 20.03.2023
10. 1. This matter is taken up through Hybrid mode.
2. Judgment dated 22nd January, 2015 (Annexure-1)
passed by learned District Judge, Jajpur in dismissing FAO
No.33 of 2014 is under challenge in this CMP whereby learned
appellate Court confirmed the order dated 25th April, 2014
(Annexure-2) passed by learned Civil Judge (Senior Division),
Jajpur in Misc. Case No.1 of 2011 (arising out of TS No.96 of
1999) rejecting an application under Order IX Rule 13 CPC.
3. Miss Mishra, learned counsel for the Petitioner mainly
assailed the impugned order under Annexures-1 and 2 on the
ground that neither learned trial Court nor learned appellate
Court, while adjudicating the matter, took note of provisions of
Order XVII Rules 2 and 3 CPC. Both the Courts swayed away
by the findings in the judgment in TS No.96 of 1999 to the
effect that the suit was disposed of on contest.
3.1 It is his her submission that although the Defendant Nos.
2 to 10 participated in the suit initially, but Defendant No.6-Bira
Ojha, who was looking after the suit on behalf of the above-
named Defendants, became paralytic and could not take steps in
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the suit. However, Defendant Nos.2 to 10 were not set ex-parte
in the suit, but in view of the provisions under Order XVII
Rules 2 and 3 CPC, the Defendants being absent on the date of
hearing of the suit, the same could not have been disposed of on
contest. It should have been disposed of in any one of the mode
under Order IX CPC. This material aspect was considered
neither by learned trial Court nor learned appellate Court.
Hence, she prays for setting aside of the impugned orders under
Annexures-1 and 2 and to remit the matter to learned trial Court
adjudicate Misc. Case No.1 of 2011 filed under Order IX Rule
13 CPC afresh
4. Mr. Tripathy, learned counsel for Opposite Party No.2
submits that he has no objection to the prayer made by
Ms. Mishra, learned counsel for the Petitioners, but the Opposite
Party No.2 has died in the meantime, for whom he was
appearing.
5. None appears for Opposite Party Nos. 3 to 6 although
they are represented by learned counsel.
6. In view of the nature of dispute involved and order
proposed to be passed, this Court feels that no fruitful purpose
would be served by keeping the matter pending enabling the
Petitioners to take steps for substitution of Opposite Party No.2.
7. Considering the submission made by Ms. Mishra,
learned counsel for the Petitioners and on perusal of impugned
orders under Annexures-1 and 2, this Court finds that learned
trial Court as well as appellate Court held that the Petitioners
were never set ex-parte in the suit and the TS No.96 of 1999
was disposed of on contest. Neither learned trial Court nor
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appellate Court made any endeavour to examine the matter in
terms of Order XVII Rules 2 and 3 CPC.
8. In that view of the matter, the impugned orders under
Annexures-1 and 2 are set aside. The matter is remitted back to
learned Civil Judge (Senior Division), Jajpur or any competent
Court to which the matter would be transferred for fresh
adjudication in Misc. Case No.1 of 2011 giving opportunity of
hearing to the parties.
9. The CMP is disposed of accordingly.
Issue urgent certified copy of the order on proper
application.
s.s.satapathy
(K.R. Mohapatra)
Judge
