Dismissed

Prahallad Panda v. Krutibash Panda

Orissa HC10 Nov 2015WP(C)/3818/2004

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the dismissal of an application to set aside an ex parte decree in a partition suit. The High Court found no patent error or gross injustice and refused interference under Article 227. The petition was dismissed.

What did the court decide?

The writ petition seeking interference with the orders upholding the setting aside of the ex parte application was dismissed.

10.11.2015 Opposite parties as plaintiffs instituted a suit for partition in the court of learned Addl. Munsif, Khandapara, which was registered as T.S. No.28 of 1991. In spite of ser vice of summons, defendant no.1 chose not to contest the case and, as such, he was set ex part e. Thereafter, the suit was decreed ex parte. While the matter stood thus, defendant no.1 file d an application under Order 9 Rule 7 CPC to set aside the ex parte decree, which was register ed as M.J.C. No.18 of 1993. Since there was a delay in filing the application, the petition un der Section 5 of the Limitation Act was also filed. To substantiate the case, defendant no.1 h as examined one witness and on his behalf one document was exhibited. On a threadbare analysis of the evidence on record, both oral and documentary, learned trial court dismissed the appli cation. Defendant no.1 unsuccessfully challenged the same before the learned Addl. District Ju dge, Nayagarh in Misc. Appeal No.5 of 2000, which was eventually dismissed on 1.5.2002.

On a cursory perusal of the application filed under Order 9 Rule 13 CPC, vide Annexure-1, it is evident that the time was allowed to defendant no.1 to file written statemen t subject to payment of cost of Rs.10/- and the case was adjourned to 23.7.1992. But then, no written statement was filed and the defendant no.1 was set ex parte. The suit was heard ex par te, whereafter ex parte judgment was passed. It is stated that the defendant was ill and after recovery from illness, an application under Order 9 Rule 7 CPC was filed but the same was rej ected and the suit was posted to 30.3.1993 for ex parte hearing. Neither any averment is made nor any document is filed to show that on the date of hearing, the petitioner was prevented by any sufficient cause in not participating the ex parte hearing.

There being no patent error or gross injustice in the impugned orders passed b y the courts below, this Court is not inclined to interfere with the same in exercise of its p ower of superintendence under Article 227 of the Constitution of India.

Prahallad Panda v. Krutibash Panda

Case brief

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Prahallad Panda v. Krutibash Panda

Case brief

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