Orissa High Court
(An Application Under Article 226 Of The ... vs Jyotirmayee Gaan ... Opposite Party on 28 February, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33265 of 2024
(An application under Article 226 of the Constitution of
India).
Susil Kumar Chand ... Petitioner
-versus-
Jyotirmayee Gaan ... Opposite Party
For Petitioner : Ms. R. Rajgaria, Advocate
For Opposite Party : None
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:28.02.2025(ORAL)
G. Satapathy, J.
1. This writ petition by the petitioner-husband
seeks to assail the impugned order dated 25.10.2024
passed by the learned Judge, Family Court, Cuttack in
Civil Proceeding No.115 of 2022 allowing the petition
of the OP to set aside the ex-parte order passed
against her.
2. In the course of argument, Ms. Ruchi Rajgaria,
learned counsel for the petitioner vehemently argues
and submits that earlier the petition to set aside the
ex-parte order passed against the OP was in fact
turned down by the said Court on the ground that the
date on which the ex-parte order was passed has not
been mentioned in the petition to set aside the ex-
parte order, but subsequently after the said order of
refusal to set aside the ex-parte order was confirmed
by this Court W.P.(C) No.37699 of 2023, the learned
trial Court again on a petition set aside the ex-parte
order passed against the OP and, thereby, such
interference by the learned trial Court amounts to
interfering in the matter which has been confirmed by
this Court. Ms. Rajgaria accordingly, prays to issue
notice in the matter.
3. After hearing the learned counsel for the
petitioner, it is not in dispute that the learned trial
Court by the impugned order has set aside and
recalled its earlier order, but facts remains that the
said Court has earlier rejected such petition of the OP
because no date by which the OP was set ex-parte was
mentioned in the petition to set aside the ex-parte
order. It is, however, contended by Ms. Rajgaria that
since the order was confirmed by this Court in W.P.(C)
No.37699 of 2023, the subsequent order passed by
the learned trial Court is illegal, but the thing appears
to this Court is that this Court has not passed any
order on merit in W.P.(C) No.37699 of 2023 which is
evident from the following paragraphs of the said
order passed by this Court in the aforesaid writ
petition which reads as under:-
"3. On perusal of the record, it appears
that due to non-appearance of the
petitioner, who is the Respondent in C.P.
No.115 of 2022, she was set ex parte vide
order dated 19th December, 2022.
However, the Petitioner filed an application
to set aside the said ex parte order, which
was also dismissed vide order dated 3rd
August, 2023, as it did not contain the
date of the order. Thus, the Petitioner
sought to set aside/recall the order dated
19th December, 2022 in this writ petition.
4. Subsequent order dated 3rd August,
2023 refusing to recall the order dated
19th December, 2022 has not been
assailed in this writ petition.
5. It is submitted by learned counsel for
the Petitioner that the civil proceeding is at
the stage of delivery of the order after
closure of argument.
6. In view of the discussions made above,
this Court is not inclined to interfere with
the impugned order."
4. True it is that the learned trial Court has
discretion to set aside the ex-parte order which has
been prescribed in the statute and accordingly, the
learned trial Court has passed the order in this case
exercising its discretion to set aside and recall the
earlier order. Time and again, the constitutional Courts
have observed that technicality should not prevail over
the real justice because once the matter is rejected or
thrown at the threshold, merely on the ground of
technicality or hyper-technicality, it would not
subserve the justice. In this case, the earlier order
which was passed by the learned trial Court was on
account of non-mentioning of date by the OP and,
therefore, this Court considers the same to be a
hyper-technical view of the learned trial Court, who
has subsequently rectified the same by passing the
present order.
5. What cannot be lost sight of is that the
learned trial Court in the impugned order has observed
that when the case recorded was posted to
15.02.2024 for delivery of judgment, it was found then
that one co-respondent was not served with the notice
and thereby, the petitioner was directed to take steps
for issuance of notice against the said co-respondent
for his appearance. Further, it is also stated by the
learned trial Court in the impugned order that the
present OP had managed to return the service of
notice upon her, but the postal tracking report reveals
that no such person was found in the said address,
however, despite above facts, the service of notice
against OP was held to be sufficient and she was set
ex-parte which in the circumstance persuades this
Court to not to interfere with the impugned order since
the OP appears to have assigned good cause for her
previous non-appearance and thereby, the learned
trial Court was able to rectify its earlier mistake for
refusing to set aside the ex-parte order. In any event,
the present petitioner cannot be said to have been
prejudiced merely because the OP was provided with
an opportunity to contest the proceeding.
6. In the result, the writ petition merits no
consideration and is accordingly, dismissed.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 28th day of February, 2025/S.Sasmal
Location: High Court of Orissa
