Orissa High Court
Amarendra Samal vs Sunita Das @ Samal on 21 March, 2025
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 123 of 2023
Amarendra Samal ....
Appellant
Represented by Adv.-
Mr. S. Chakravarty, Advocate
-versus-
Sunita Das @ Samal .... Respondent
Represented by Adv.-
Mr. A.K. Mishra , Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
ORDER
21.03.2025
Order No.
11. I.A. no.115 of 2025
1. The application is by respondent in the appeal disposed of on
judgment dated 2nd September, 2024, ex-parte as against her. It carries
prayer to set aside the judgment and for direction to investigate as to
how and where Court notice is being served. We appreciate the
application to have been made under rule 21 in order XLI, Code of
Civil Procedure, 1908.
2. Mr. Mishra, learned advocate appears on behalf of applicant
and Mr. Chakravarty, learned advocate, for appellant.
3. The parties had been heard. We had made directions for filing
affidavits. Two affidavits respectively dated 4th March, 2025 and 15th
March, 2025 have been filed by applicant.
4. Reproduced below is paragraph 2 from the judgment.
"2. Respondent goes unrepresented. Order sheet
bears record of sufficiency of service on she having
refused to accept the postal article bearing notice of
the appeal. In addition, direction for substituted
service was complied with on the notice duly
published in the newspaper. Furthermore, we had
directed Registry to communicate website copy of our
order dated 2nd April, 2024 to Mr. Bijay Kumar
Pradhan, learned advocate, Balasore Bar Association
and lay note confirming the communication. In this
context we reproduce below paragraph 2 from our
subsequent order dated 25th April, 2024.
"2. We reproduce below the direction from said
order dated 2nd April, 2024.
"3. ......... Registry is directed to communicate
website copy of this order through Registrar,
Civil Court, Balasore to Mr. Bijay Kumar
Pradhan, learned advocate of Balasore Bar
Association and lay note confirming the
communication. It is made clear, we will
proceed with hearing of the appeal on adjourned
date, irrespective of representation/ appearance
by respondent-wife."
Registrar Civil Court, Balasore has by letter dated
22nd April, 2024 said there was due service. We find
the learned advocate served had made endorsement in
acknowledging receipt on 22nd April, 2024. We
reproduce below the endorsement.
"I would like to intimate you that I have neither
any communication address nor contact with
the Respondent Sunita Das @ Samal."
... ... ..."
(emphasis supplied)
5. We reproduce below paragraph 3 from our order dated 25th
February, 2025, made with regard to paragraph 2 of our said
judgment dated 2nd September, 2024.
"3. Applicant will file affidavit explaining her conduct in
view of aforesaid paragraph from the judgment
reproduced above. The affidavit will be accepted on
adjourned date upon advance copy served. Omission to
file affidavit will cause us to consider whether we should
issue suo motu rule of contempt against applicant."
Contents of said affidavit dated 15th March, 2025 are reproduced
below.
I, Smt. Sunita Das @ Samal, aged about 35 yrs, W/O
Amarendra Samal, at: Dakhinsarisa, PO: Darada, Via:
Basta, Dist: Balasore, do hereby solemnly affirm and
state as follows:-
1. That I am the petitioner in the IA No.115 of 2025.
2. That I am the wife of the Amarendra Samal who is
the Appellant under MATA No.123 of 2023.
3. That I am residing at village Dakhinsarisa with my
disabled son and with the age-old parents of my
husband.
4. That on dated 7th day of February 2023, the date
of Judgment in C.P.No. 654/2017, I had lastly met
with Mr. Bijaya Kumar Pradhan, learned
advocate of Balasore Bar at the family court of
Balasore.
5. That I have never received any letter or postcard
from Mr. Bijaya Kumar Pradhan, learned
advocate of Balasore Bar.
(emphasis supplied)
That the facts stated above are true to the best of
my knowledge and belief.
6. We have affidavit evidence corroborating statement of
Mr. Bijaya Kumar Pradhan, learned advocate of Balasore Bar
Association by his endorsement. Applicant herself says, she met
said learned advocate on date of delivery of judgment dated 7th
February, 2023 by the Family Court. She also says, she never
received any letter or postcard from Mr. Bijaya Kumar Pradhan,
learned advocate of Balasore Bar confirming said advocate's
statement that he neither had any communication address nor
contact with applicant. In addition there is record in order sheet
of service of notice of appeal, 'refused' and thereafter,
substituted service also made. Under order V, rule 9(5) refusal is
good service. Still, this Court had required appellant to cause
substituted service.
7. The application is dismissed. We refrain from imposing
cost on applicant.
( Arindam Sinha )
Acting Chief Justice
( M.S. Sahoo )
Judge
S. K. Jena, Secy. Digitally Signed
S.K. Behera Signed by: SISIRA KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 21-Mar-2025 15:59:00
