Purna Chandra Panda vs Bhagyalakshmi Sahu @ Panda And Others

K.R. Mohapatra, J

This matter is taken up through Hybrid mode.

Order dated 28th July, 2022 (Annexure-2) passed in CS No.24 of 2021 whereby learned Civil Judge, Senior Division, Khallikote rejected an application under Order IX Rule 7 CPC filed by the Petitioner is under challenged in this CMP.

Mr. Samantaray, learned counsel submits that the Petitioner is Defendant No.1 in the Suit. Vide order dated 27th July, 2021, learned trial Court treating the notice on Defendant No.1 to be sufficient set him ex parte. Subsequently, a petition was filed under Order IX Rule 7 CPC to set aside the ex parte order and to accept the written statement. Learned trial Court, vide order dated 28th July, 2022 rejected the same. Hence, this CMP has been filed.

Mr. Samantaray, learned counsel further submits that the Petitioner is an old man of 63 years and he was suffering from various geriatric deceases. He also suffered from COVID-19. Hence, he could not appear before learned trial Court on the date fixed and file written statement. Although such a plea was taken by the Petitioner in his petition under Order IX Rule 7 CPC, but learned trial Court disbelieved the same, as the petition was not accompanied by any document of the treating physician to that effect. It is also submitted that when the Petitioner has shown interest to contest the suit by filing written statement and hearing of the suit has not yet commenced, learned trial Court ought to have given opportunity to the Petitioner to contest the suit by filing written statement by setting aside the ex parte order and accepting the written statement. Hence, he prays for setting aside the impugned order and direct learned trial Court to set aside the ex parte order and accept the written statement of the Petitioner.

Office note discloses that AD is not back from the Plaintiff/Opposite Party No.1, but the tracking report of the Postal Department discloses that the notice on Opposite Party No.1/Plaintiff has been served. Hence, the notice on Opposite Party No.1 is treated to be sufficient.

Upon hearing learned counsel for the Petitioner and on perusal of record, it appears that the only ground on which the petition under Order IX Rule 7 CPC was rejected that the Petitioner could not file any document in support of his ailments. Hence, learned trial Court was of the view that the Petitioner has not shown sufficient cause for his absence, on the date to which the suit was posted. It is categorically pleaded by learned counsel for the Petitioner in the petition under Order IX Rule 7 CPC that the Petitioner was suffering from old age ailments. He had also suffered from COVID-19 although no documents in support of the same was filed, but no material to the contrary was also brought to the notice of the learned trial Court to disbelieve the same.

Since the Defendant No.1 / Petitioner is interested to file written statement and hearing of the suit has not yet commenced, learned trial Court ought to have set aside the ex parte order and accepted the written statement to provide an opportunity to the Defendant No.1/Petitioner to contest the suit.

Accordingly, this Court while setting aside the impugned order dated 28th July, 2022 (Annexure-2) and order dated 27th July, 2021 setting the Defendant No.1 ex parte, directs the learned trial Court to accept the written statement filed by the Petitioner/Defendant No.1 and to proceed in accordance with law.

With the aforesaid observation and direction, the writ petition is disposed of.

Issue urgent certified copy of the order on proper application.

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