Narayan Barik And Another vs Purna Chandra Barik (dead) through LRs

K.R. Mohapatra, J.

This matter is taken up through hybrid mode.

Order dated 16th March, 2018 (Annexure-1) passed by learned Civil Judge (Senior Division), Puri in C.M.A. No.152 of 2009 (arising out of CMA No.203 of 2005) is under challenge in this CMP, whereby an application to restore CMA No.203 of 2005 filed under Order IX Rule 13 CPC to set aside the ex parte decree passed in C.S. No.320 of 1999, has been dismissed.

Ms. Sahoo, learned counsel for the Petitioners submits that status of Petitioner No.2 was under challenge in the suit. Unfortunately the suit was decreed ex parte as the Petitioners did not file any written statement. Thus, an application under Order IX Rule 13 CPC in CMA No.203 of 2005 was filed to set aside the ex parte decree. The said application was posted to 7th July, 2009 for adducing evidence by the Petitioners. But, the Petitioners could not present the witness and participate in the proceeding. Hence, it was dismissed for non-prosecution. Accordingly, CMA No.152 of 2009 under Section 151 CPC was filed to restore CMA No.203 of 2005, which was also dismissed vide order under Annexure-1. Hence, this CMP has been filed assailing the said order.

Ms. Sahoo, learned counsel for the Petitioners vehemently argued that the Petitioner No.2, who was looking after the case was suffering from filarial fever at the relevant time. Thus, she could not be present on the date fixed for hearing of CMA No.203 of 2005. An application for adjournment was filed on behalf of the Petitioners by their counsel. But, rejecting said application, learned trial Court dismissed CMA No.203 of 2005 for default. Accordingly, CMA No.152 of 2009 was filed to restore the petition filed under Order IX Rule 13 CPC. Learned trial Court without considering the materials available on record and that the Petitioners being rustic villagers could not produce the documents in support of the treatment of Petitioner No.2, dismissed the same. Hence, this CMP has been filed.

Ms. Sahoo, learned counsel for the Petitioners further submits that the status of Petitioner No.2 is under challenge in the suit. Thus, they should be given an opportunity to contest CMA No.203 of 2005 by setting aside the order dated 7th July, 2009.

None appears for the Opposite Parties although they are represented though learned counsel.

Taking note of the submission made by Ms. Sahoo, learned counsel for the Petitioners and on perusal of the record, it appears that a plea was taken by the Petitioners that Petitioner No.2, namely, Sukanti Barik was suffering from filarial fever at the relevant time, for which she could not make herself available on 7th July, 2009, on which date CMA No.203 of 2005 was posted for adducing evidence on behalf of the Petitioners. It further appears that an application was also filed on their behalf for adjournment. The said application was rejected and CMA No.203 of 2005 filed under Order IX Rule 13 CPC was dismissed for default. It further appears that although a plea was taken that Petitioner No.2 was suffering from filarial fever and was being treated under Dr. Ajit Patra of Ghodabazar for the same, but no document in support of such treatment was filed in CMA No.152 of 2009. Further, the Petitioner No.2 in her evidence in CMA No.152 of 2009 has categorically stated that she was taking medicines as per the advice of Dr. Ajit Patra of Ghodabazar for filarial fever. Neither any prescription nor any documents in support of purchase of medicines was filed, although she stated that she could file documents to that effect. She has also adduced evidence categorically stating that she was suffering from filarial fever from 5th July, 2009 to 9th July, 2009, but failed to produce any material to that effect. The Petitioners relied upon a decision in the case of Mataji Dei –v- Babaji Sahu, reported in 1998 (I) OLR 201, wherein it is held that “Petitioner stated that she was suffering from filarial fever-the trial court held that no medical certificate was produced, so rejected the petition-Common notice can be taken of the fact filarial patients very often do not take medical treatment-In view of the evidence on record it is held that there was sufficient cause for non-appearance.” The aforesaid case law has no application to the case in hand, as the Petitioner No.2 has categorically stated in her evidence that she was being treated under Dr. Ajit Patra of Ghodabazar. Thus, she could have produced documents in support of the same.

It further appears that the Petitioners had taken several adjournments prior to 7th July, 2009 to adduce evidence in CMA No.203 of 2005, but failed to comply with the matter. Learned trial Court considering the materials available on record has arrived at a conclusion that no sufficient cause has been assigned for non-appearance of the Petitioners on the date of hearing of CMA No.203 of 2005. Sufficient cause being a question of fact and learned trial Court in exercising its discretion and scrutinizing the materials has arrived at a definite conclusion that there is no sufficient cause for non-appearance of the Petitioners on the date of hearing of CMA No.203 of 2005, this Court should not undertake the exercise of re-appreciating the evidence and substitute its own finding, only because on reappreciation of evidence, a second view may be possible.

In that view of the matter, this Court does not find any merit in the CMP. Accordingly, the CMP stands dismissed.

Urgent certified copy of this judgment be granted on proper application..

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