Madan Mohan Patra vs Nimish Atha And Others

K.R. Mohapatra, J

This matter is taken up through Hybrid mode.

Order dated 27th February, 2023 (Annexure-2) passed by learned Senior Civil Judge (L R & LTV), Jharsuguda in TS No.20/37 of 1996-2002 (TS No.25 of 2016) is under challenge in this CMP, whereby an application filed by Petitioner/Defendant No. 9 under Order IX Rule 7 CPC has been rejected.

Mr. Sarangi, learned Senior Advocate appearing on behalf of the Petitioner strenuously urged that the Petitioner was set ex-parte on 28th August, 2001. No notice whatsoever was served on him at any point of time. However, coming to know about pendency of the suit, the Petitioner filed an application under Order IX Rule 7 CPC for setting aside the ex-parte order and to participate in the proceeding of the suit by filing written statement. It is his submission that although the suit is of the year 1996, but trial of the suit commenced in the year 2022 only. Thus, the Plaintiff will not be prejudiced if the Petitioner is allowed to file his written statement and contest the suit. This material aspect was lost sight of the learned trial Court while adjudicating the matter. Accordingly, he prays for setting aside the impugned order and to permit the Petitioner to participate in the hearing of the suit by filing written statement.

Mr. Somanath Pattnaik, learned counsel who has entered appearance on behalf of the Plaintiff/Opposite Party No.1 by filing a Caveat petition (not available on record), submits that there is no averment in the petition under Order IX Rule 7 CPC that the address in which summons were sent was wrong. The notices were served on the Petitioner in both ways, i.e., by registered post and through court process as well. If the averments made in the CMP are taken into consideration then it can be safely said that the Petitioner had received the notice in the suit itself. He, however, submits that since trial of the suit has already commenced since long the Petitioner cannot be allowed to participate in the proceeding by filing written statement. He, therefore, submits that learned trial Court has committed no error in dismissing the petition under Order IX Rule 7 CPC.

Considering the rival contentions of the parties, this Court finds that Petitioner was set ex-parte way back on 28th August, 2001 and in the meantime more than 22 years have already elapsed. Admittedly, the application under Order IX Rule 7 CPC was filed after commencement of trial. In view of the ratio decided in the case of Arjun Singh Vs. Mohindra Kumar and others, reported in AIR 1964 SC 993, the party seeking setting aside the ex-parte order cannot be relegated to the position before commencement of the trial. Thus, the Petitioner cannot be allowed to file his written statement. However, the Petitioner even if set ex-parte can participate in the proceeding without propounding his own case.

Accordingly, the impugned order is modified to the extent that the Petitioner can participate in the hearing of the suit without filing any written statement or propounding his own case.

With the observation and direction, the CMP is allowed to the aforesaid extent.

Issue urgent certified copy of the order on proper application.

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