Ananda Naik (Since Dead) Through His Lrs vs Pramila Majhi & Others ... Opposite ...
2025 Latest Caselaw 1687 Ori

Orissa High Court

Ananda Naik (Since Dead) Through His Lrs vs Pramila Majhi & Others ... Opposite ... on 25 July, 2025

                          ORISSA HIGH COURT : CUTTACK

                             C.R.P. No.7 of 2021

             An application under Section 115 of the Code of Civil
                              Procedure, 1908.

                                       ***

Ananda Naik (Since Dead) through his LRS ... Petitioners

-VERSUS-

Pramila Majhi & Others ... Opposite Parties

Counsel appeared for the parties:

For the Petitioners : Mr. Gopinath Mishra, Adv.

For the Opposite Parties : Mr. Maheswar Mohanty, Adv.

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing: 01.07.2025 :: Date of Judgment : 25.07.2025

ANANDA CHANDRA BEHERA, J.--

1. This revision under Section 115 of the C.P.C, 1908 has been

filed by the petitioner praying for setting aside the final order

dated 07.04.2021 passed in FAO No.11 of 2020 by the learned

District Judge, Malkangiri.

2. After the death of the Petitioner during the pendency of this revision, his LRs have been substituted in his place as Petitioner Nos.1(a) to 1(f).

The Opposite Party No.1 in this revision was the Appellant in FAO No.11 of 2020.

The Opposite Party Nos.2 to 5 in this revision were the Respondent Nos.2 to 5 in that FAO No.11 of 2020.

3. FAO No.11 of 2020 was preferred by the Opposite Party No.1

of this revision challenging the final order dated 22.10.2020

passed in CMA No.1 of 2019 under Order-9 Rule-13 of the

C.P.C.1908 arising out of C.S. No.71 of 2018.

4. The factual backgrounds of this revision, which prompted

the Petitioner for filing of the same is that, he (Petitioner, Ananda

Naik) being the sole plaintiff filed the suit vide C.S. No.71 of 2018

in the Court of learned Civil Judge (Senior Division), Malkangiri

against the Opposite Party No.1 in this revision i.e. Pramila Majhi

arraying her as Defendant No.1 and also arraying Defendant

Nos.2 to 5 as other Defendants.

That suit vide C.S. No.71 of 2018 filed by Ananda Naik was

decreed ex-parte on dated 25.09.2018 against all the defendants

including the Defendant No.1 Pramila Majhi.

After passing of such ex-parte decree in the suit vide C.S.

No.71 of 2018 against the defendants, the Defendant No.1

Pramila Majhi filed CMA No.1 of 2019 under Order-9, Rule-13 of

the C.P.C. being the Petitioner against the Plaintiff Ananda Naik

arraying him as Opposite Party No.l and also arraying the

Defendant Nos.2 to 5 as Opposite Party Nos.2 to 5 praying for

setting aside the ex-parte decree dated 25.09.2018 passed in C.S.

No.71 of 2018 on the ground that, notice of the suit vide C.S.

No.71 of 2018 was not duly served upon her and she was set ex-

parte illegally without being served with proper notice.

After hearing from both the sides, the learned Civil Judge

(Senior Division), Malkangiri rejected/ dismissed that CMA No. 1

of 2019 of the Petitioner (Defendant No.1) on dated 22.10.2020

assigning the reasons that, after due service of notice in the suit

vide C.S. No.71 of 2018 upon her (Defendant No.1), she

(Defendant No.1) had deliberately and intentionally avoided to

participate in the hearing of the suit vide C.S No.71 of 2018

having her full knowledge about the pendency of that suit vide

C.S No.71 of 2018 against her.

5. On being dissatisfied with the above order i.e.

rejection/dismissal to her CMA No.1 of 2019 under Order-9 Rule-

13 of the C.P.C.1908 passed by the learned Civil Judge (Senior

Division), Malkangiri, she (Pramila Majhi) challenged the same

preferring an appeal vide FAO No.11 of 2020 under Order-43

Rule-1(d) of the C.P.C being the Appellant against the Plaintiff

Ananda Naik arraying him as Respondent No.1 and also arraying

the Defendant Nos.2 to 5 as Respondent Nos.2 to 5.

6. After hearing from both the sides, the learned District Judge, Malkangiri allowed that FAO No.11 of 2020 on dated 07.04.2021 filed by the Defendant No.1 (Pramila Majhi) on contest and set aside the order of rejection/dismissal to her CMA No.1 of 2019 passed by the learned Civil Judge (Senior Division), Malkangiri and also set aside to the ex-parte judgment and decree dated 25.09.2018 passed in C.S. No.71 of 2018 against her (Pramila Majhi) by the learned Civil Judge (Senior Division), Malkangiri assigning the reasons that:-

"summon/notice in the suit vide C.S. No.71 of 2018 was not duly served upon the Defendant No.1 (Pramila Majhi) through substituted service by way of paper publication, as, the Plaintiff had given the wrong address of all the Defendants in the suit including the address of Defendant No.1 (Pramila Majhi) and also assigning further reasons that, even mere knowledge of the Defendants including Defendant No.1 (Pramila Majhi) about the

institution of the suit vide C.S. No.71 of 2018 against them is not sufficient for them to appear and contest the said suit, unless and until they are effectively/ lawfully served with the summons/notices of such suit. Because, as per law, all the Defendants like Defendant No.1 (Pramila Majhi) are lawfully entitled to get the summons/notices of the suit for their appearance and contest to the said suit."

7. On Being aggrieved with the aforesaid judgment dated

07.04.2021 passed in FAO No.11 of 2020 by the learned District

Judge, Malkangiri against the Plaintiff Ananda Naik, he (Plaintiff-

Ananda Naik) challenged the same by filing this revision being

the Petitioner against all the defendants including the Defendant

No.1 (Pramila Majhi) arraying them as Opposite Parties.

When during the pendency of this revision, the

Petitioner/Plaintiff (Ananda Naik) expired, then, his legal heirs

were substituted in his place as the Petitioner Nos.1(a) to 1(f).

8. I have already heard from the learned counsels of both the

sides.

9. During the course of hearing, in order to assail the

impugned judgment passed in FAO No.11 of 2020, the learned

counsel for the Petitioner/Plaintiff contended that, when the

summons/notices in the suit vide C.S. No.71 of 2018 were duly

served upon the defendants through substituted service by way

of paper publication under Order-5, Rule-20 of the C.P.C, 1908

and when it appears from the materials on record that, the

defendants had full knowledge about the institution of the suit

vide C.S. No.71 of 2018 by the Plaintiff against them, then, at

this juncture, the learned District Judge, Malkangiri should not

have set aside the dismissal order to the CMA No.1 of 2019 under

Order-9, Rule-13 of the C.P.C 1908 of the Defendant No.1

(Pramila Majhi).

10. On the contrary, the learned counsel for the Opposite Party

No.1 (Defendant No.1, Pramila Majhi) argued in support of the

findings and observations made by the learned District Judge,

Malkangiri in the judgment dated 07.04.2021 assed in FAO

No.11 of 2020.

In Para No.7 of the impugned judgment in FAO No.11 of

2020, the learned District Judge, Malkangiri has observed that,

there is no dispute about the giving wrong addresses of all the

defendants including the Defendant No.1 by the plaintiff in the

plaint vide C.S. No.71 of 2018, which shows that the plaintiff

was/is not sure about the correct addresses of the defendants.

11. Basing upon the aforesaid rival submissions of the learned

counsels of both the sides, the crux of this revision is:-

(i) Whether the service of summons/notices through paper publication as per Order-5, Rule-20 of the C.P.C, 1908 against the defendants in their wrong addresses given in the published summons/notices in the Newspaper shall be deemed as sufficient service of summons/notices against them (defendants) ?

(ii) Whether mere knowledge of the defendants about the pendency of a suit against them without lawful service of summons/notices shall be deemed as sufficiency of summons/notices of that suit against them (Defendants) ?

12. So far as the first point i.e. Whether the service of summons/notices through paper publication as per Order-5, Rule- 20 of the C.P.C, 1908 against the defendants in their wrong addresses given in the published summons/notices in the Newspaper shall be deemed as sufficient service of summons/notices against them (defendants), is concerned !

As per Order-7, Rule-1(c) of the C.P.C, 1908, the plaint shall

contain the name, description and place of residence of the

defendant, so far as they can be ascertained.

13. The above provisions of law clearly clarify that, the

summons/notices shall be issued to the defendants from the

Court in the addresses given in the plaint by the plaintiff.

14. Here, in this matter at hand, the plaintiff had given wrong

addresses of the defendants including the Defendant No.1, for

which, in Para No.7 of the impugned judgment, the learned

District Judge, Malkanagiri has observed that, the Plaintiff had

given the wrong addresses of all the defendants. For which, the

publication of summons through substituted service under

Order-5, Rule-20 of the C.P.C, 1908 in the paper against the

defendants including the Defendant No.1 in the suit vide C.S.

No.71 of 2018 in their wrong addresses cannot be held as

sufficient under law.

15. On this aspect, the propositions of law has already been

clarified, in the ratio of the following decisions:-

In a case between Labani Dibya Vrs.

Prahallad Pari & another reported in ILR 1960 Cuttack 522, Narendra Kishore Das Vrs. Banamali Sahu reported in AIR 1951 orissa 312, Prafulla Chandra Deo Vrs.

Satyanaraya Chandra Deo & another reported in 1992 (I) OLR 277 & Bishnu Charan Malla Vrs. Sankarsan Mohapatra alias Behera & others reported in 2003 (I) OLR Page-61 that, when the summonses were not duly served on the defendant, then the decree should be set aside. Because the question of knowledge or no knowledge is not relevant for the purpose of Order 9 Rule 13 of the C.P.C. 1908.

16. When summon/notice in the suit Vide C.S.

No.71 of 2018 for its service upon the Defendant No.1

(Pramila Majhi) was published in her incorrect/wrong

address, then, at this juncture, in view of the

propositions of law enunciated in the ratio of the

above decisions, the above observations of the learned

District Judge, Malkanagiri that, the summon against

the Defendant No.1 (Pramila Majhi) in the suit vide

C.S. No.71 of 2018 was not made sufficient lawfully

cannot be held as erroneous.

17. So far as the second point i.e. Whether mere

knowledge of the defendants about the pendency of a

suit against them without lawful service of

summons/notices shall be deemed as sufficiency of

summons/notices of that suit against them

(Defendants) is concerned!

It is the settled propositions of law that, mere

knowledge of the Defendant about the filing of the suit by

the Plaintiff against him/her is not sufficient. Because, the

defendant expects service of notice in the suit as per law.

18. On this aspect, propositions of law has already been

clarified, in the ratio of the following decisions:-

(i) In a case between Prafulla Chandra Deo Vrs. Satyanarayan Chandra Deo & another reported in Vol. 33 (1991) O.J.D 533 (Civil), Bishnu Charan Malla Vrs. Sankarsan Mohapatra & others reported in 2003 (I) OLR 61 & Union of India represented By General Manager, S.E. Railway, Garden Reach, Calcutta Vrs. Shri Surjan Singh & another reported in 2003 (II) OLR-11 that, a party's knowledge of the institution of a suit is not sufficient, so long as he is not effectively served with summons of the suit. He may from various circumstances or either his own enquiry come to know that, a suit has been filed against him, but he is entitled to expect service of summons from Court. Till that is done, you cannot fix him with the liability of ex-parte decree & cannot refuse his application to set aside the said decree on the ground that there is good reason to believe that, he knew of the suit.

(ii) In a case between Chandabai Sharma Vrs. Addl. District magistrate, Bargarh & others reported in 2013 (I) OLR-788 that, mere knowledge of a proceeding by a person interested cannot be a justification for dispensing with service of notice.

(iii) In a case between Binaya Bhusann Pattnaik Vrs. Smt. Sujata Pattnaik reported in 2013(II) OLR-964 that, the Petitioner/husband had deliberately given a wrong address in the petition for divorce and obtained ex-parte decree against his wife. An application under Order-9, Rule-13 C.P.C 1908 filed by the wife for setting aside ex-parte

decree allowed, as fraud and fraudulent misrepresentation vitiates every solemn act.

19. As per the discussions/observations made in the foregoing

Point No.1, when it has already been held that, the Defendant

No.1 was not duly served with summon/notice in the suit vide

C.S. No.71 of 2018, then at this juncture, by applying the

principles of law enunciated in the ratio of the aforesaid

decisions to this matter at hand, it is held that, mere knowledge

of the Defendant No.1 about the institution of the suit vide C.S.

No.71 of 2018 against her without due service of

summon/notice as per law upon her cannot be held as

sufficiency of summons in the suit vide C.S. No.71 of 2018

against her (Defendant No.1, Pramila Majhi).

20. That, apart it is also the settled propositions of law that,

when legislature provides a particular thing to be done in a

particular manner, then such things has to be done in the same

prescribed manner, and no other manner is permissible under

law.

Here in this matter at hand, when the provisions of law

provide that summons are to be served upon the defendants in

their correct addresses, but when the plaintiff had published the

summons in the Newspaper for the service of summons in the

suit vide C.S. No.71 of 2018 against them in their incorrect

(wrong address), then at this juncture, it is held that, the

procedures adopted by the plaintiff for service of summons

against the defendants in the suit vide C.S. No.71 of 2018 was

not permissible under law.

21. The provisions of law envisaged under Order-9, Rule-13 of

the C.P.C is a beneficial legislation and the same is required to

be interpreted liberally in favour of the defendants.

Likewise the purpose of enactment and object of the Civil

Procedure Code is really rules of natural justice. Its purpose is to

enable both the parties to get hearing on merit.

22. On this aspect, the propositions of law has already been

clarified by this Court and Apex Court in the ratio of the

following decisions:-

(i) In a case between Rabindra Prasad Kamilla Vrs. Abhaya Prasad Kamilla reported in (1987) CLT (Supp.) 428 that, the provisions of law envisaged under Order-9, Rule-13 of the C.P.C is a beneficial legislation and the same is to be interpreted liberally in favour of the defendant.

(ii) In a case between Sumtibai & others Vrs.

Paras Finance Co. Mankanwar reported in 4 Civil Court 593, (2007) (Para-8) that, the purpose

of enactment and object of the Civil Procedure Code is really rules of natural justice. Its purpose is to enable both parties to get a hearing.

(iii) In a case between Alka Gupta Vrs. Narendra Kumar Gupta reported in (2010) 10 SCC 141, (at Para-77) that, the Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a Court of law.

(iv) In a case between Babaji Kondaji Garad Vrs. Nasik Merchants co-operative Bank Ltd., Nasik & others Reported in AIR 1984 (SC) 192 that, when statute requires, a certain thing to be done in a certain manner, it can be done in that manner alone, unless a contrary indication is to be found in the statute.

23. Here in this matter at hand, when the learned District

Judge, Malkanagiri set aside the ex-parte decree passed in the

suit vide C.S. No.71 of 2018 after setting aside the dismissal

order passed in CMA No.1 of 2019 under Order-9, Rule-13 of the

C.P.C, 1908 by the learned Civil Judge (Senior Division),

Malkangiri in FAO No.11 of 2020 assigning the reasons that, the

summons in the suit vide C.S. No.71 of 2018 were not duly

served upon the defendants including the Defendant No.1 due to

the publication of the said summons/notices in their wrong

addresses and the mere knowledge of the defendants about the

institution of the suit vide C.S. No.71 of 2018 against them

cannot be held as sufficiency of summons, as they (Defendants)

are entitled to receive the summons/notices from the Court and

when after setting aside the ex-parte decree passed against the

Defendants in C.S. No.71 of 2018, the learned District Judge,

Malkangiri has made the parties enable to get hearing to the suit

vide C.S. No.71 of 2018 on merit in compliance with the

provisions of the principles of natural justice and when the

purpose of enactment and the object of the Civil Procedure Code

is really rules of natural justice, and its purpose is to enable

both the parties to get a hearing on merit, then, at this juncture

by applying the principles of law enunciated in the ratio of the

aforesaid decisions, it cannot be held that, the impugned

judgment passed by the learned District Judge, Malkangiri in

FAO No.11 of 2020 setting aside the ex parte judgment and

decree passed on 25.09.2018 in C.S. No.71 of 2018 is illegal in

full, only for the reasons that, the rights of parties are to be

adjudicated upon merits of their controversies and no party

should be thrown out merely on technicalities. Even if a party is

negligent in defending the suit or a proceeding, still, other

parties can be compensated through cost.

24. When, the suit filed by the plaintiff vide C.S. No.71 of 2018

has been protracted/lingered on the ground of some

technicalities raised by the Defendant No.1 in the suit (Pramila

Majhi, Opposite Party No.1 in this revision), for which, the ends

of justice should have been bestly served, if the learned District

Judge, Malkangiri should have allowed the FAO No.11 of 2020 in

setting aside the rejection/dismissal order passed in CMA No.1

of 2019 under Order-9, Rule-13 of the C.P.C, 1908 filed by the

Defendant No.1 (Pramila Majhi) subject to payment of some cost,

but, the learned District Judge, Malkanagiri has not done so.

For which, the revision filed by the Petitioner (Plaintiff), is to be

allowed in part making a little interference with the same, but,

not in full through this revision filed by the Petitioner (plaintiff).

25. In result, the revision filed by the Petitioner is allowed in

part on contest against the Opposite Parties.

26. The impugned judgment dated 07.04.2021 passed in FAO

No.11 of 2020 by the learned District Judge, Malkanagiri setting

aside, the ex parte decree dated 25.09.2018 passed in C.S.

No.71 of 2018 by the learned Civil Judge (Senior Division),

Malkangiri is confirmed subject to payment of cost of Rs.5,000/-

(Rupees Five Thousand only) by the petitioner (Defendant No1)

to the legal heirs of the plaintiff within fifteen days since

11.08.2025 making it clear that, after payment of the aforesaid

cost by the Defendant No.1 to the legal heirs of the Plaintiff, the

learned Civil Judge (Senior Division), Malkangiri shall proceed

with the suit vide C.S. No.71 of 2018 further as per law.

27. The parties in this revision are directed to appear before the

learned Civil Judge (Senior Division), Malkangiri in the suit vide

C.S. No.71 of 2018 on dated 11.08.2025 for the purpose of

receiving the directions of that Court as to further proceedings in

the suit vide C.S. No.71 of 2018.

28. Registry is directed to communicate the copy of this

judgment immediately to the learned Civil Judge (Senior

Division), Malkangiri in reference to C.S. No.71 of 2018.

29. As such, this revision petition is disposed of finally.

(ANANDA CHANDRA BEHERA) JUDGE

Signature High NotCourt Verified of Orissa, Cuttack Digitally Signed The 25 .07. 2025// Sarbani Dash Jr. Stenographer Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 26-Jul-2025 16:39:53