Orissa High Court
Susama Khamari @ Smt. Susama vs Damodar Sahoo @ Damodar Das .... ... on 25 March, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 381 of 2025
Susama Khamari @ Smt. Susama .... Petitioners
Khamari & another
Mr. B. Rath, Advocate
-Versus-
Damodar Sahoo @ Damodar Das .... Opposite Parties
None
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
25.03.2025
Order No.
01. 1. Heard Mr. Rath, learned counsel for the petitioners.
2. No notices are issued to the opposite parties as the matter is
disposed of at the stage of admission.
3. Instant petition is filed by the petitioners challenging the
impugned order dated 21st February, 2025 passed in connection
with C.S. (I) No. 117 of 2023 by learned Civil Judge (Senior
Division), Narsinghpur as at Annexure-4, whereby, an application
under Order 9 Rule 7 CPC as per Annexure-2 filed by them was
dismissed on the grounds stated therein.
4. Referring to the impugned order as at Annexure-4, Mr.
Rath, learned counsel for the petitioners submits that the ex parte
order against the petitioners was not set aside referring to a decision
of the Apex Court in Arjun Singh Vrs. Mohindra Kumar and others
AIR 1964 SC 993 with a conclusion that on the next date of ex parte
hearing, such an application was to be filed and hence, it is not
maintainable. The submission is that the suit was pending at the
stage of ex parte hearing and not for judgment and hence, the
Court below misread the decision of the apex Court in Arjun Singh
(supra) and reached at such a conclusion and therefore, the
impugned order as at Annexure-4 is liable to be interfered with and
set aside.
5. In course of hearing, a decision of this Court in Chittaranjan
Sahu and others Vrs. Janmejay Kar and others 2023(I) CLR 874 is
also referred to on the point that the suit after having been
transferred to the Court, the petitioners was not issued with any
notice, whereafter, they were set ex parte, hence on such ground as
well, the impugned order i.e. Annexure-4 is not sustainable in the
eye of law.
6. In fact, the petitioners were set ex parte on 25th June, 2024,
whereas, the suit was transferred to the Court of learned Civil Judge
(S.D.), Narsinghpur prior to such transfer. In Chittaranjan Sahu
(supra), it has been held that once a suit is transferred from one
Court to another, the transferee court is required to issue notice and
therein, it was in connection with restoration of a suit dismissed for
default. It is claimed that there is no such notice issued to the
petitioners after the transfer of the suit from the Court learned Civil
Judge (Senior Division) Athagarh. Furthermore, according to the
decision of the Apex Court in Arjun Singh (supra), an application
under Order 9 Rule 7 CPC is maintainable provided the suit is
pending for ex parte hearing. To consider and appreciate the
contention of Mr. Rath, learned counsel for the petitioners, it would
be proper to reproduce the relevant extract of the decision in Arjun
Singh (supra) and the same is herein below:
".........Adverting to the facts of the present appeal,
this would primarily turn upon the proper
construction of the terms of O. IX, R.7. The opening
words of that rule are, as already seen, 'Where the
Court has adjourned the hearing of the suit ex
parte'. Now, what do these words mean? Obviously
they assume that there is to be a hearing on the date
to which the suit stands adjourned. If the entirety of
the "hearing" of a suit has been completed and the
Court being competent to pronounce judgment then
and there, adjourns the suit merely for the purpose
of pronouncing judgment under O. XX, R. 1, there is
clearly no adjournment of "the hearing" of the suit
for, there is nothing more to be heard in the suit. It
was precisely this idea that was expressed by the
learned Civil Judge when he stated that having
regard to the stage which the suit had reached the
only proceeding in which the appellant could
participate was to hear the judgment pronounced
and that on the terms of rules 6 & 7 he would
permit him to do that. If, therefore, the hearing was
completed and the suit was not "adjourned for
hearing", O. IX, R.7 could have no application and
the matter would stand at the stage of O. IX, R.6 to
be followed up by the passing of an ex parte decree
making R. 13 the only provision in order IX
applicable. If this were the correct position, it would
automatically follow that the learned Civil Judge
would have no jurisdiction to entertain the
application dated May 31, 1958 purporting to be
under O. IX, R.7, or pass any order thereon on the
merits. This in its turn would lead to the result that
the application under O. IX, R. 13 was not only
competent but had to be heard on the merits
without reference to the findings contained in the
previous order".
7. Having understood the decision (supra), it has to be held
that such an application in the case at hand with a request for ex
parte order to be set aside in terms of Order 9 Rule 7 CPC was well
maintainable. In other words, the court below could not have
declined to entertain the application as per Annexure-2 on the
premise that it was to be filed immediately on the next date of the
ex parte hearing. As per the law laid down and discussed herein
before, such application seeking an ex parte order for being set
aside, the same is maintainable before the date of posting of the suit
for ex parte judgment. Having said that and considering the
submission of Mr. Rath, learned counsel for the petitioners and in
view of the above discussion with reference to the decision in Arjun
Singh (supra) and claim that there was no notice from the transferee
court by placing reliance on the case law in Chittaranjan Sahu
(supra), the Court, without any hesitation, reaches at the conclusion
that the impugned order under Annexure-4 is liable to be disturbed.
8. Hence, it is ordered.
9. In the result, the CMP stands allowed. As a necessary
corollary, the impugned order dated 21st February, 2025 passed in
C.S. (I) No.117 of 2023 by the learned Civil Judge (Senior Division),
Narsinghpur is hereby set aside with the direction to allow
participation of the petitioners accepting defence from them for the
ex parte order having been set aside and thereafter, proceed to
dispose it of as per and in accordance with law.
10. In the circumstances, however, there is no order as to costs.
11. Issue urgent certified copy as per rules.
(R.K. Pattanaik)
Judge
Alok
