Orissa High Court
Singrai Majhi vs Ratnakar Majhi And Others on 6 November, 2024
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
Date: 07-Nov-2024 12:33:12
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 584 OF 2024
(An application under Article 227 of the Constitution of India)
*****
Singrai Majhi
...... Petitioner
-Versus-
Ratnakar Majhi and others
....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Abhilash Mishra, Advocate
For Opp. Parties : Mr. Suryakanta Dash, Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 06.11.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Judgment dated 20th March, 2024 (Annexure-6) passed in
F.A.O. No.01 of 2023 is under challenge in this CMP, whereby
learned Additional District Judge, Rairangpur allowed the appeal
and set aside the judgment dated 1st May, 2023 (Annexure-4)
passed by learned Civil Judge (Senior Division), Rairangpur in
C.M.A. No.04 of 2016 (arising out of C.S. No.143 of 2006),
dismissing an application under Order IX Rule 13 CPC.
3. Mr. Mishra, learned counsel submits that the Plaintiff is
the Petitioner in this CMP. The suit was filed for declaration of
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 12:33:12 // 2 //
right, title, interest and confirmation of possession as well as for
permanent injunction against the Defendants. Defendant No.1-
Opposite Party No.1 upon receipt of summon in the suit, did not
appear, for which he was set ex parte on 9th April, 2007.
Subsequently, the suit was decreed ex parte vide judgment dated
25th April, 2008 (Annexure-2) declaring that the Plaintiff is the
rightful owner in possession of the suit land. The Defendants
were also permanently injuncted from interfering with the
peaceful possession of the Plaintiff over the suit land. After a
lapse of eight years, the Defendant No.1 filed CMA No.04 of
2016 under Order IX Rule 13 CPC for setting aside the ex parte
decree against him and to contest the suit. The said application
was rejected vide order under Annexure-4. Assailing the same,
Defendant No.1 filed F.A.O. No.01 of 2023, which was allowed
vide judgment under Annexure-6 setting aside the order passed
under Annexure-4. Hence, this CMP has been filed.
4. Mr. Mishra, learned counsel for the Plaintiff-Petitioner
submits that in the CMA petition, the Defendant No.1 has
categorically stated at Paragraph-3 that after the ex parte decree
was passed in the suit, Execution Case No.11 of 2015 was filed.
After receipt of the notice in the Execution Case, Defendant
No.1 applied for the certified copies of the plaint, judgment,
decree and summon in C.S. No.143 of 2006 through Sri Durga
Murmu, Advocate's Clerk on 27th December, 2015. Certified
copies were supplied to Sri Murmu on 8th January, 2016. Since
9th January, 2016 was a 2nd Saturday and 10th January, 2016 was
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 12:33:12 // 3 //
a Sunday, said Sri Murmu informed the Defendant No.1
regarding receipt of the certified copies on 11th January, 2016.
Defendant No.1 further stated that he came to Rairangpur on 13th
January, 2016, when he received the certified copies from Sri
Murmu. The Defendant No.1 had knowledge of the institution as
well as the decree passed in the suit since 8th January, 2016,
when his agent namely, Sri Durga Murmu received the certified
copies. Learned appellate Court on a misconception held that
Defendant No.1 came to know about the institution of the suit
and decree passed therein on 13th January, 2016 and thus opined
the petition under Order IX Rule 13 CPC to be in time.
5. It is further submitted that the Plaintiff and Defendant
Nos.1 and 2 were residing under one roof. Defendant No.2
received summon on behalf of Defendant No.1. Subsequently an
affidavit was filed by the Plaintiff to treat the service of summon
on Defendant No.1 to be sufficient. Accepting the same, learned
trial Court proceeded with the matter. Since the Defendant No.1
upon receipt of the summons in the suit did not appear, he was
set ex parte on 9th April, 2007 and ex parte judgment was passed
on 25th April, 2008. Thus, Defendant No.1 had knowledge of
institution of the suit as well as the decree passed therein all
throughout. Learned trial Court considering the same held that
the petition under Order IX Rule 13 CPC was devoid of any
merit and dismissed the same. These facts could not be
appreciated in their proper perspective by learned appellate
Court, which has resulted in the impugned judgment. Hence, the
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 12:33:12 // 4 //
impugned judgment under Annexure-6 is not sustainable and is
liable to be set aside and the order passed under Annexure-4
under Order IX Rule 13 CPC should be restored.
6. Mr. Dash, learned counsel for Defendant No.1-Opposite
Party No.1, on the other hand, submits that in the petition under
Order IX Rule 13 CPC under Annexure-3, the Defendant No.1
has categorically stated that upon receipt of the notice in
Execution Case No.11 of 2015, he applied for the certified
copies of the plaint, judgment, decree and summon in C.S.
No.143 of 2006 by engaging one, Sri Durga Murmu, Advocate's
Clerk. He obtained the certified copies on 8th January, 2016.
However, the Defendant No.1 received the same from Sri
Murmu on 13th January, 2016. Further at Paragraph-6 of the
petition, it has been categorically stated that Defendant No.1
came to know about the institution of the suit and decree passed
therein only on 13th January, 2016 after receipt of the certified
copies, as aforesaid. Although Sri Murmu had received the
certified copies on 8th January, 2016, but the Defendant No.1
received the certified copies on 13th January, 2016 and gathered
knowledge about the institution of the suit and decree passed
therein.
6.1 Summon was held to be sufficient on Defendant No.1 on
the basis of an affidavit filed by the Plaintiff. But, most
surprisingly, neither the Plaintiff nor the process server was
examined in the CMA to prove that notice was duly served on
the Defendant No.1 in the suit. He further submitted that learned
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 12:33:12 // 5 //
appellate Court came to a categorical finding that summon in the
suit was not duly served on Defendant No.1 and he came to
know about the ex parte judgment and decree only on 13th
January, 2016 when he received the certified copies from Sri
Durga Murmu. As such, there is no illegality in such finding. He
further submits that the Defendant No.1 has a fair chance of
success in the suit, if he is given an opportunity of hearing.
Considering the same, learned appellate Court set aside the order
passed under Annexure-4 and allowed the petition under Order
IX Rule 13 CPC. Hence, this Court should not interfere with the
impugned judgment under Annexure-6.
7. Heard learned counsel for the parties and perused the
materials on record.
8. Upon hearing learned counsel for the parties and on
perusal of the record, it is apparent that the Defendant No.1-
Opposite Party No.1 in the petition filed under Order IX Rule 13
CPC in CMA No.04 of 2016 has stated that he was not served
with the summon in the suit, i.e., C.S. No.143 of 2006. Materials
on record reveal that the summonses were served on Defendant
No.2, who is not in good terms with the Defendant No.1.
Although the parties are living under one roof, but they have
separate mess. Thus, there is every reasons to believe that
service of summons on Defendant No.2 might not have been
intimated to Defendant No.1. Be that as it may, on the basis of
an affidavit filed by the Plaintiff-Petitioner, summon on the
Defendant No.1 was held to be sufficient. But, the Plaintiff-
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 12:33:12 // 6 //
Petitioner was not examined in CMA No.04 of 2016 to assert
that summon in the suit was duly served on Defendant No.1.
9. It reveals from the copy of the petition under Order IX
Rule 13 CPC (Annexure-3) that upon receipt of the notice in
Execution Case No.11 of 2015, the Defendant No.1 applied for
the certified copies of plaint, judgment, decree and summons in
C.S. No.143 of 2006 through one, Advocate's Clerk, Sri Durga
Murmu on 27th December, 2016. Sri Murmu received the
certified copies on 8th January, 2016. But the Defendant No.1
received the same from said Sri Murmu on 13th January, 2016.
True it is that Sri Murmu was acting on behalf of Defendant
No.1. But, the Defendant No.1 came to learn about the
institution and decree passed in the suit, i.e., C.S. No.143 of
2006 only on receiving certified copies from Sri Murmu on 13th
January, 2016.
9.1. It is categorically stated at Paragraph-6 of the petition
under Annexure-3 that Defendant No.1 had received summon on
13th January, 2016. There is no specific denial to the said
averment in the objection to the petition under Order IX Rule 13
CPC filed by the Plaintiff. It is also forthcoming that the parties
though living under one roof were having separate mess. There
is no material to come to a conclusion that summons in the suit
were served on Defendant No.1 personally. On assessment of
materials on record, learned appellate Court came to a
conclusion that summon on Defendant No.1 was not duly served
in the suit. The Defendant No.1 came to know about the ex parte
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 12:33:12 // 7 //
judgment and decree only on 13th January, 2016, when he
received the certified copies from Sri Durga Murmu, Advocate's
Clerk. Only because a separate opinion may be formed on the
materials available on record, this Court should not substitute its
own finding on re-appreciation of evidence available on record.
Since the findings arrived at by learned appellate Court in the
impugned order are based on record, there is no reason to
interfere with it, wherein ex parte decree was aside.
10. In view of the above, this Court is not inclined to
interfere with the impugned judgment under Annexure-6.
Accordingly, the CMP being devoid of any merit stands
dismissed. However, there shall be no order as to costs.
11. Since the suit is of the year, 2006, learned trial Court
should make an endeavour to see that the suit is disposed of at an
early date. Parties shall cooperate with learned trial Court for
early disposal of the suit.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 06th November, 2024/Madhusmita
