Santanu Kumar Mohapatra vs Smt. Bijayanti Nanda and Others

L. Mohapatra, J.—This writ application is directed against the order dated 1.2.2005 passed by the learned Civil Judge (Junior Division), Puri in T.S. No. 136 of 1992-I rejecting an application filed by the Petitioner for setting aside the ex parte order as well as for acceptance of the written statement.

Opposite party No. 1 is the Plaintiff and the present Petitioner is Defendant No. 5 in the suit. The suit has been filed for declaration of the title and confirmation of possession over the suit property and also for permanent injunction and restraining the Defendants from interfering with the possession of the Plaintiff-opposite party No. 1. Though the suit had been filed in the year 1992 and the Petitioner had received notice, no steps were taken on his behalf for filing written statement and accordingly he was set ex parte. Only on 3rd January 2005 a petition was filed by the Petitioner under Order 9 Rule 7 of the CPC to set aside the order dated 18.1.1993 and also for acceptance of written statement. The sole ground taken in the petition is that on the assurance of the Plaintiff-opposite party No. 1 that she would withdraw her claim against the Petitioner, no steps were taken on his behalf in the suit. After coming to know that the Plaintiff-opposite party No. 1 is proceeding with the suit even against the Petitioner, the aforesaid application was filed for setting aside the order, which was passed on 18.1.1993 and also for acceptance of written statement. The Plaintiff-opposite party No. 1 filed objection to the said petition. In her objection she stated that she had not given any assurance to withdraw her claim against the Petitioner. According to the said Plaintiff-opposite party No. 1, she has been pursuing the suit since 1992 and hearing of the suit has already commenced. It was also the case of the Plaintiff-opposite party No. 1 that the Petitioner had entered appearance in the suit on 30th October, 1992 but did not file written statement nor took any step as a result of which he was set ex parte on 18.11.1993. The further objection of the Plaintiff-opposite party No. 1 is that such an application for setting aside the ex parte order as well as for acceptance of written statement should not be permitted twelve years after the Petitioner was set ex parte and specifically when hearing of the suit has already been commenced. Both the parties relied upon some decisions before the trial Court and on analysis of the decisions cited as well as the fact involved in this case, the trial Court was of the view that the petition filed by the Petitioner for setting aside the ex parte order is devoid of any merit and accordingly dismissed the same.

The learned Counsel appearing for the Defendant No. 5-Petitioner challenges the impugned order on the ground that after service of notice in the suit the Petitioner had entered appearance and steps were taken regularly till 18.1.1993 but on the assurance of the Plaintiff-opposite party No. 1 that she would withdraw her claim against him to further steps were taken. Unfortunately, the Petitioner was set ex parte on 18.1.1993 and only in the year 2005 the Petitioner came to know that the Plaintiff-opposite party No. 1 is still pursuing her suit against the Defendants including the Petitioner. Having come to know about the conduct of the Plaintiff-opposite party No. 1, an application was filed by the Petitioner for setting aside the ex parte order and also for acceptance of the written statement. Such submission of the learned Counsel for the Petitioner was stoutly denied by the learned Counsel appearing for the Plaintiff-opposite party No. 1 and it was contended that no such assurance had ever been given by the Plaintiff-opposite party No. 1 to the Defendant No. 5-Petitioner and, therefore the application filed for setting aside the ex parte order twelve years after the order was passed should not be entertained specifically when hearing of the suit has already been commenced.

The learned Counsel for the Petitioner relied on a decision of the Apex Court in the case of Smt. Rani Kusum v. Smt. Kanchan Devi and Ors. reported in 2006 (I) OLR (SC) 8 and submitted that the time limit fixed under Order 8, Rule 1 of the CPC for filing written statement is procedural and not a part of substantive law. The power of the Court to extend time for filing the written statement beyond the time schedule is not completely taken away. Departure there from would be by way of exception. But so far the above decision of the Apex Court is concerned, there is no dispute that even after expiry of time as prescribed under Order 8, Rule 1 of the CPC the Court has jurisdiction to accept the written statement but the same should be done as an exception and not as a rule. Now, therefore the question that comes up for consideration is as to whether the Petitioner has been able to show sufficient cause for setting aside the ex parte order after twelve years. In this connection, a decision of the Apex Court in the case of Arjun Singh Vs. Mohindra Kumar and Others, is relevant. The Apex Court in the aforesaid decision observed as follows:

There is no material difference between the facts to be established for satisfying the two tests of "good cause" and "sufficient cause". There cannot be a "good cause" which is not "sufficient" as affording an explanation for non-appearance, nor conversely a "sufficient cause" which is not a good one and further either of these is not different from "good and sufficient cause" which is used in this context in other statues. If, on the other hand, there is any difference between the two, it can only be that the requirement of a "good cause" is complied with on a lesser degree of proof than that of "sufficient cause" assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the Court finds in the proceeding under Order 9, Rule 7 the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later proceeding under Order 9, Rule 13 where the standard of proof of that matter I, if anything, higher.

Now coming to the facts of the present case. The only ground taken by the learned Counsel for the Petitioner is that the Plaintiff-opposite party No. 1 had assured him that she would withdraw her claim against the Petitioner. Such a stand taken by the Petitioner is stoutly denied by the Defendant-opposite party No. 1. No other ground has been taken in the petition filed under Order 8, Rule 1 of the CPC for setting aside the ex parte order. It is not understood as to how the Petitioner took twelve years to know that the Plaintiff-opposite party No. 1 has not kept her promise even if it is accepted that such a promise had been made. There being no explanation for filing the application twelve years after the Petitioner was set ex parte, I am of the view that neither good ground nor sufficient ground has been assigned in the petition for setting aside the ex parte order. I, therefore do not find any justification to interfere with the order passed by the trial Court in rejecting such application.

The writ application is devoid of any merit and accordingly, the same is dismissed.