Bulu Das v. Dulei Das

WP(C) No.4652 of 2006
10.11.2015 Challenging, inter alia, the judgment dated 12.9.1996 passed by the learned Ci
vil Judge (Senior Division), Kendrapara in Misc. Appeal No.25 of 1990, the instant petition is
 filed under Article 227 of the Constitution of India. By the said order, learned lower appell
ate court dismissed the appeal and thereby confirmed the order dated 31.7.1990 passed by the l
earned Munsif, Kendrapara in Misc. Case No.282 of 1989 whereby and whereunder the application
filed by the petitioner under Order 9 Rule 13 CPC was dismissed.

 Opposite parties as plaintiffs laid a suit for declaration of title and recove
ry of possession in the court of the learned Munsif, Kendrapara impleading the present petitio
ner as defendant, which was registered as T.S. No.309 of 1986. The defendant was set ex parte
and the suit was posted to 8.12.1988 for ex parte hearing. The application filed by the defend
ant under Order 9 Rule 7 CPC was allowed subject to payment of cost of Rs.10/-. Since the cost
 was not paid, the defendant was set ex parte again, whereafter ex parte decree was passed on
20.7.1989. The defendant filed an application under Order 9 Rule 13 CPC to set aside the ex pa
rte order, which was registered as Misc. Case No.282 of 1989. The plaintiffs filed an objectio
n to the same. To substantiate the case, the defendant examined one witness. On behalf of the
plaintiff, one witness was examined. On a threadbare analysis of the evidence available on rec
ord, both oral and documentary, in a well discussed order, the learned trial court dismissed t
he application. Defendant unsuccessfully challenged the same in Misc. Appeal No.25 of 1990 bef
ore the learned Civil Judge (Senior Division), Kendrapara, which was eventually dismissed.
 Heard Mr. Dash, learned counsel for the petitioner. None appears for the oppos

ite parties.

 As would be evident from the impugned order, defendant entered appearance in t
he suit on 24.11.1986 and took several adjournments to file written statement. Since written s
tatement was not filed, he was set ex parte on 8.12.1988. On 15.2.1989, he filed an applicatio
n under Order 9 Rule 7 CPC to set aside the ex parte order. The same was allowed subject to pa
yment of cost of Rs.10/-. Since the cost was not paid, he was set ex parte. The case was poste
d to 3.7.1989 for ex parte hearing. On 3.7.1989, he filed an application to set aside the ex p
arte order. Since the cost was not paid, his application was rejected. Thereafter, the plainti
ff was examined and the suit was posted for ex parte hearing. It is not the case of the defend
ant that he was prevented by sufficient cause in not appearing in the suit when the case was p
osted for ex parte hearing. Rather on the date of ex parte hearing, an application under Order
 9 Rule 7 CPC was filed, which was rejected due to non-payment of the cost imposed earlier. No
thing prevented the defendant to participate in the hearing of the suit inasmuch cross-examine
 the plaintiffs witness, adduce evidence and address argument.