Prabhat Manjari Nayak vs Sarat Kumar Gartia And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

This CMP has been filed assailing the order dated 17th August, 2023 and 2nd November, 2023 (Annxure-1) passed by learned Senior Civil Judge (LR & LTV), Sambalpur in CS No.79 of 2015.

Vide order dated 17th August, 2023, learned trial Court set the Defendant Nos. 1 and 4 ex-parte and vide order dated 2nd November, 2023, learned trial Court refused to recall the said order and permit the Petitioner to take out notice on Defendant No.1.

It is submitted by Mr. Rath, learned counsel for the Petitioner that on 17th August, 2023, the suit was posted for consideration of SR on Defendant Nos.1 and 4. Prior to that date, learned counsel for the Defendant Nos. 1 and 4 had filed no instruction memo on 3rd May, 2023 and accordingly learned trial Court directed issuance of notice to them at the instance of the Court. Notice on Defendant No.4 returned back unserved due to discrepancy in description of name and address of the summonee and as per the report of the process server, the addressee was not known. Thus, learned trial Court held that the Defendant No.4 has lost interest to proceed with the case. It is also held that Defendant No.1 is avoiding to appear before the Court to proceed with the suit. Hence, they were set ex-parte.

It is submitted by Mr. Rath, learned counsel for the Plaintiff-Petitioner that in the meantime the Defendant No.4 has already appeared and has filed an application under IX Rule 7 CPC, which is pending for consideration. In the order dated 17th August, 2023, there is no mention about the status of the service of summon on Defendant No.1. Thus, he could not have been set ex-parte on the said date. On the next date of posting of the case, i.e.28th August, 2023, the Petitioner filed an application under Section151 CPC to recall the order dated 17th August, 2023 and permit the Plaintiff to take out notice on Defendant Nos. 1 and 4. But the Defendant No.4 entered appearance on said date through a counsel and file an application under Order IX Rule 7 CPC to set aside the ex-parte order. Thus, learned counsel for the Petitioner prayed for taking out notice on Defendant No.1 only by recalling order dated 17th August, 2023. Learned trial Court, on a misconception, held that it is not the duty of the Court to issue summons again and again for appearance of Defendants causing delay in proceeding of the suit. It is the plaintiff to find out the correct address of the parties and to take out notice on them. It is, therefore, held that if such prayer is allowed, other parties may repeat the same and thereby this proceeding of the suit will linger.

It is his submission that taking note of no instruction memo dated 3rd May, 2023, learned trial Court suo-motu directed to take out notice on Defendant Nos. 1 and 4 at the instance of the Court. The Plaintiff could have taken steps on them, if directed. The Plaintiff has described the Defendant Nos. 1 and 4 in the plaint as known to him. If the address is incorrect, then he should have been directed to take out notice with correct address. When the Opposite Party is set ex-parte without following due procedure of law, then the Plaintiff will be at loss as he has to face litigation even after he gets a decree against the Defendant Nos.1 and 4. He, therefore, submits the impugned orders are not sustainable and are liable to be set aside.

Mr. Dash, learned Counsel submits that he has instruction to appear on behalf of the Defendant-Opposite Party No.4.

It is, however, submitted by Mr. Rath, learned counsel for the Petitioner that he does not claim any relief against Defendant No.4 in this CMP.

Taking into consideration the submission made by Mr. Rath, learned counsel for the Petitioner and on perusal of the impugned order dated 2nd November, 2023, it appears that learned trial Court has discussed the entire incident thoroughly, but failed to appreciate the correct position of law to deal with the petition dated 28th August, 2023 filed under Section 151 CPC. Order dated 17th August, 2023 does not reflect the status of the service of summon on Defendant No.1. This aspect was not taken into consideration by learned trial Court while setting the Defendant No.1 ex-parte.

In view of the above, this Court feels that learned trial Court should considerer the petition dated 28th August, 2023 filed by the Plaintiff under Section 151 CPC afresh giving opportunity of hearing to the parties concerned.

Accordingly, the impugned order dated 2nd November, 2023 is set aside and the matter is remitted to learned Senior Civil Judge, LR & LTV, Sambalpur to adjudicate the petition dated 28th August, 2023 filed under Section 151 CPC afresh giving opportunity of hearing to the parties concerned.

The CMP is allowed to the aforesaid extent.

Issue urgent certified copy of this order be granted on proper application.

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