Debi Prasad Giri vs Pinki @Pritirekha Parida @ Giri .... ...
2025 Latest Caselaw 7658 Ori

Orissa High Court

Debi Prasad Giri vs Pinki @Pritirekha Parida @ Giri .... ... on 30 April, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   CMP No.372 of 2025

            Debi Prasad Giri                            ....               Petitioner
                                                        Mr. Sougat Dash, Advocate


                                            -Versus-

            Pinki @Pritirekha Parida @ Giri              ....          Opposite Party
                                                                             None


                       CORAM:
                       MR. JUSTICE R.K. PATTANAIK

                                          ORDER

30.04.2025

Order No.

01. 1. Heard Mr. Dash, learned counsel for the petitioner.

2. No notice is issued to the opposite parties since the matter is disposed of at the stage of admission.

3. Instant petition is filed by the petitioner challenging the impugned order dated 14th February, 2025 passed in connection with MAT Suit No.27 of 2024 as at Annexure-4 by learned Civil Judge (Senior Division), Udala, Mayurbhanj, whereby, an application under Order 9 Rule 7 C.P.C. pressed into service by him seeking the ex parte order to be set aside was declined.

4. Mr. Dash, learned counsel for the petitioner submits that the petitioner is the husband of the opposite party, who has instituted the suit seeking dissolution of marriage and therein, on the premise that notice was served and refused by the petitioner, he

was set ex parte and thereafter, the suit was posted for ex parte argument and at that stage, the application under Order 9 Rule 7 C.P.C. was filed but it has not been entertained and dismissed. The submission of Mr. Dash, learned counsel is that notice was issued in an address at Nilagiri in the district of Balasore. It is claimed that the petitioner has left the place of address in 2017 and hence, notice issued in such address could not have been served on the petitioner but shown to have been so served and refused upon receipt of the S.R. as made to reveal from the impugned order dated 22nd October, 2024 as at Annexure-5. The further submission is that the petitioner, immediately after the ex parte order as per Annexure-5, moved the application under Order 9 Rule 7 C.P.C. but in absence of sufficient cause being shown by him, as according to learned Court below, the same was rejected on the premise that the suit is pending at the stage of ex parte argument. The contention is that there is no bar as such to entertain such an application under Order 9 Rule 7 C.P.C. even at the stage of ex parte argument, the fact, which has not been duly taken cognizance of by the learned Court below, hence, the impugned order dated 14th February, 2025 as at Annexure-4 suffers from legal infirmity and therefore, deserves to be interfered with in the interest of justice.

5. A copy of the order under Order 9 Rule 7 C.P.C. is at Annexure-2 and the same is perused. In the said application, the address statement of the petitioner is described with the plea that notice on such address at Nilagiri could not have been served as he had already left by then. In fact, an objection was received from the opposite party against the application under Order 9 Rule 7 C.P.C. In course of hearing, Mr. Dash, learned counsel for the petitioner submits that the petitioner has even instituted a suit for restitution of

conjugal rights in C.P. No.237 of 2024. As earlier stated, the matrimonial suit is at the behest of the opposite party for a decree of divorce in terms of Section 13(1) of the Hindu Marriage Act. From Annexure-5, the Court finds that the suit was admitted on 24th September, 2024 and notice was issued to the petitioner and on the next date i.e. on 19th October, 2024, S.R. of the notice was not received back and hence, was fixed to 26th October, 2024, the date on which, such notice was held sufficient after refusal of service and hence, the petitioner was set ex parte and then, the suit was posted for ex parte hearing and finally for argument. In the meantime, the application under Order 9 Rule 7 C.P.C. was filed on 25th November, 2024, which is about a month after. On a reading of the impugned order i.e. Annexure-4, the Court finds that the application under Order 9 Rule 7 C.P.C. could not be allowed on the ground that the suit was fixed to ex parte argument, the contention of Mr. Dash, learned counsel for the petitioner is that there is no bar of any kind or restriction to consider an application under Order 9 Rule 7 C.P.C. at such stage, especially when, it was promptly moved by the petitioner and not at a time, when the suit was pending for delivery of judgment.

6. Referring to a decision reported in AIR 1991 Orissa 157, Mr. Dash, learned counsel for the petitioner submits that the defendant, who is set ex parte, can still be permitted to participate in the suit and examine witnesses from either side. Admittedly, by the time, the application under Order 9 Rule 7 C.P.C. was filed by the petitioner, the suit was posted for ex parte argument. In fact, Order 9 Rule 7 C.P.C. stipulates that when a suit is adjourned for ex parte hearing, at that stage, the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, the

Court may direct for restoration subject to costs or otherwise. On a proper reading of the above provision, the Court finds that when the suit is pending at the stage of hearing, the defendant appears and shows good reasons for the alleged default, the Court has a discretionary power to consider and condone the same as if he had appeared on the date fixed for appearance.

7. As far as the decision in the case of Arjun Singh Vrs. Mohindra Kumar and others AIR 1964 SC 993 is concerned, Mr. Dash, learned counsel for the petitioner would submit that the same relates to an ex parte order and disposal of the suit for default, restoration of which was insisted upon in terms of under Order 9 Rule 13 C.P.C. In the aforesaid case, the Apex Court held and observed that good cause or sufficient cause for the non-appearance are to be satisfied while considering an application under Order 9 Rule 13 C.P.C. In fact, in the decision (supra), the application under Order 9 Rule 7 C.P.C. was moved for the ex parte orders to be set aside but it was rejected and thereafter, upon disposal of the suit, an application under Order 9 Rule 13 C.P.C. was filed alleging the same facts and reasons as before and in that connection, the Apex Court held that the scope of principles of res judicata is not confined to Section 11 CPC but is of general application and it could be applicable to different stages of the same suit. The sum and substance of the decision is that good cause is to be shown for an application under Order 9 Rule 13 C.P.C. alike one under Order 9 Rule 7 C.P.C.

8. In the instant case, the pleading on record is that notice was issued in an address of the petitioner at a the place from where he had left in 2017 and that apart, the application under Order 9 Rule 7 C.P.C. was moved when the suit was pending at the stage of ex

parte argument. On a reading of the citations referred to and relevant provision discussed hereinbefore and the fact that a month after the order of ex parte dated 22nd October, 2024, the application under Order 9 Rule 7 C.P.C. was moved by the petitioner even though the learned Court below held the notice to be sufficient upon refusal of service, however, considering the reasonable explanation offered and the place of residence of the petitioner to be not at Nilagiri but at Balasore, of course, refusal of service is claimed and for the fact that the suit was pending at the stage of ex parte argument, the Court is of the view that learned Court below ought to have taken cognizance of the same and accepted the explanation for the alleged default. In other words, the Court reaches at a conclusion that the petitioner's explanation to the alleged default or with regard to the notice issued in the address at Nilagiri and for the fact that the suit was fixed to 25th November, 2024 for ex parte argument and not for delivery of judgment, a case of good cause or reasonable or sufficient cause can be said to have been made out by him. So to say, the explanation as offered by the petitioner is acceptable being within the terms of Order 9 Rule 7 C.P.C. Hence, for the discussions as herein before, the ultimate view of the Court is that the impugned order i.e. Annexure-4 deserves to be interfered with.

9. Accordingly, it is directed.

10. In the result, the CMP stands allowed. As a necessary corollary, the impugned order dated 14th February, 2025 in MAT Suit No.27 of 2024 as at Annexure-4 by learned Civil Judge (Senior Division), Udala, Mayurbhanj is hereby set aside with a direction for the petitioner to cross-examine the opposite party after filing of the

W.S. and upon framing of the issues and thereafter, to proceed and to dispose of the same as per and in accordance with law.

11. In the circumstances, there is no order as to costs.

12. Urgent certified copy of this order be issued as per rules.

(R.K. Pattanaik) Judge Balaram