Orissa High Court
(An Application Under Article 227 Of The vs Collector on 8 November, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 1031 OF 2024
(An application under Article 227 of the
Constitution of India)
****
Nandita Mohapatra and others .... Petitioners
-versus-
Collector, Cuttack and others .... Opp. Parties
Advocates appeared:
For Petitioners : Mr. Prafulla Kumar Lenka, Advocate
For Opp. Parties : Mr. Debendra Kumar Sahoo,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
---------------------------------------
Heard and disposed of on 08.11.2024
---------------------------------------
JUDGMENT
1. This matter is taken up through hybrid mode.
2. This CMP has been filed assailing the orders dated 9th
December, 2019 and 16th May, 2022 (Annexure-7) passed by
learned 1st Additional Civil Judge (Senior Division), Cuttack in
T.S. No.170 of 2000.
3. Mr. Lenka, learned counsel for the Petitioners submits
that written statement filed by Defendant Nos.1 and 2 was
accepted vide order dated 9th December, 2019 and the petition to
recall the said order dated 9th December, 2019 was dismissed
vide order dated 16th May, 2022. It is his submission that
learned Government Pleader appeared in the suit on 19th May,
2010, but he did not file written statement on behalf of the
Defendant Nos. 1 and 2 within the statutory period.
Subsequently, learned Government Pleader filed his memo of
appearance on 3rd October, 2019. On 9th December, 2019,
learned Government Pleader filed written statement along with
an application for acceptance of the written statement without
serving copy thereof on learned counsel for the Plaintiffs-
Petitioners. Learned trial Court although took note of the same,
but accepted the written statement of Defendant Nos.1 and 2 on
the same day. Being aggrieved, the Plaintiffs-Petitioners filed an
application on 7th October, 2021 to recall the order dated 9th
December, 2019, which was rejected holding that the written
statement was filed in time. Hence, this CMP has been filed.
4. In order to test the veracity, this Court vide order dated
24th September, 2024 directed learned counsel for the Petitioners
to place on record the order sheet of T.S. No.170 of 2000.
Accordingly, Mr. Lenka, learned counsel for the Petitioners
placed on record the entire order sheet of T.S. No.170 of 2000.
Referring to the order sheet, Mr. Lenka, learned counsel for the
Petitioners submits that although learned Government Pleader
appeared on behalf of Defendant Nos.1 and 2 on 19th May, 2010,
but he did not file his appearance memo. Non-filing of the
appearance memo on behalf of Defendant Nos. 1 and 2 does not
take away the effect of non-filing of the written statement within
the stipulated period. Be that as it may, on 9th December, 2019,
learned Government Pleader filed written statement on behalf of
Defendant Nos.1 and 2 along with an application for its
acceptance. Without serving copy thereof on learned counsel for
the Plaintiffs-Petitioners, petition for acceptance of the written
statement was allowed and written statement filed by Defendant
Nos.1 and 2 was accepted. The Plaintiffs-Petitioners were not
provided with any opportunity to object acceptance of the
written statement beyond the statutory period. In order to
appraise the said fact, an application was filed for recall of the
order dated 9th December, 2019, but the said application was
also rejected vide order dated 16th May, 2022. Hence, he prays
for setting aside both the aforesaid orders and to direct the State-
Defendants to serve a copy of the petition for acceptance of the
written statement on the Plaintiffs and pass necessary orders
after hearing learned counsel for the parties.
5. Mr. Sahoo, learned Additional Government Advocate
appearing for the State-Opposite Parties vehemently objects to
the same and submits that on 19th May, 2010, learned
Government Pleader had not received any instruction to appear
on behalf of Defendant Nos.1 and 2 for which he did not file his
appearance memo. Thus, appearance of learned Government
Pleader cannot be construed to be appeared on behalf of
Defendant Nos.1 and 2 in the aforesaid suit on the aforesaid
date. He further submits that learned trial Court while
adjudicating the petition for recall of the order dated 9th
December, 2019 had taken note of all the contentions made by
learned counsel for the Plaintiffs-Petitioners and passed the
impugned order. After the order dated 9th December, 2019 was
passed, the Petitioners did not raise any objection for acceptance
of the written statement immediately. On the other hand, they
appeared in the suit on different dates and prayed for
adjournment to participate in the hearing of the suit. At a
belated stage, an application was filed to recall the order of
acceptance of written statement. Such an application is an
afterthought and was filed with an intention to protract the
litigation. Thus, the impugned orders warrant no interference.
6. Considering the submissions made by learned counsel
for the parties, this Court finds that learned Government Pleader
although appeared on behalf of Defendant Nos.1 and 2 on 19th
May, 2010, but did not file any appearance memo. Filing of the
appearance memo on behalf of Defendant Nos.1 and 2 is the
responsibility of learned Government Pleader. For that, the
Plaintiffs-Petitioners cannot be blamed. It further appears that
the Government Pleader filed appearance memo only on 3rd
October, 2019 and on 9th December, 2019, learned Government
Pleader filed written statement on behalf of Defendant Nos.1 and
2 along with a petition for its acceptance. Belated filing of
appearance memo by learned Government Pleader does not
waive the statutory period for filing of the written statement.
When a petition for acceptance of the written statement was
filed, the Defendant Nos.1 and 2 should have served the copy of
the same on learned counsel for the Plaintiffs-Petitioners to have
their say in the matter. Learned trial Court although recorded
that copy of the petition for acceptance of the written statement
was not served on learned counsel for the Plaintiffs-Petitioners,
but in a haste proceeded to adjudicate the said petition and
allowed the same by accepting the written statement. Hence,
learned trial Court has committed an error of law in not
providing an opportunity to the Plaintiffs-Petitioners to have
their say in the matter of acceptance of the written statement
filed by Defendant Nos.1 and 2. As such, order dated 9th
December, 2019 is not sustainable for violation of principles of
natural justice. As such, consequential order dated 16th May,
2022 is also unsustainable.
7. Hence, the impugned orders dated 9th December, 2019
and 16th May, 2022 passed by learned 1st Additional Civil Judge
(Senior Division), Cuttack in T.S. No.170 of 2000 are set aside
and the matter is remitted to learned trial Court to direct learned
Government Pleader to serve a copy of the petition for
acceptance of the written statement along with a copy of the
written statement on learned counsel for the Plaintiffs-Petitioners
within a stipulated period and proceed with the matter
accordingly.
8. It is needless to mention here that this Court has not
expressed any opinion on the merits of the case of either of the
parties.
9. With the aforesaid observation and direction, the CMP is
disposed of, but, in the facts and circumstances of the case, there
shall be no order as to costs.
(K.R. Mohapatra)
Judge
Digitally Signed Orissa High Court, Cuttack,
Reason: Authentication Dated the 8th November, 2024/bks
Location: High Court of Orissa, Cuttack
Date: 11-Nov-2024 14:33:32
