Allowed

Sadhu Mallick @Sadhu v. Ganesh Pr.Mallik

Orissa HC26 Apr 2021CMP/123/2014

Case brief

AI extract

What is this about?

The High Court allowed a complainment to set aside an ex parte order and the subsequent order rejecting an application to set aside the ex parte order, permitting the petitioner-defendant to file a written statement subject to payment of costs.

What did the court decide?

Set aside the order dated 24.04.2013 and the order dated 19.01.2010; permit Defendant No. 1 to file written statement within two weeks upon payment of Rs.2000/- costs.

Sadhu Mallick @Sadhu Vs Ganesh Pr.Mallik — Civil Procedure and Limitation | Orissa HC (2021)

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CMP NO. 123 OF 2014

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26.04.2021 This matter is taken up through video conferencing

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mode.

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Heard Mr. Dillip Ray, learned counsel for the Petitioner.

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The Petitioner in this CMP seeks to assail the order dated 24.04.2013 (Annexure-6) passed by learned Addl. Civil Judge (Junior Division), Basudevpur in C.S. No.82 of 2012, whereby he rejected an application filed by him for acceptance of the written statement.

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Mr. Ray, learned counsel for the Petitioner submits that due to non-appearance of Defendant No.1-Petitioner, he was set ex parte vide order dated 19.01.2010. However, the Defendant No.1 being an old man of 82 years old and was suffering from several geriatric diseases could not take steps for filing of the written statement for which he was set ex parte on 19.01.2010. On 10.05.2012, he filed an application under Order IX Rule 7 C.P.C. to set aside the ex parte order and accept the written statement, which was rejected vide order dated 24.04.2013. It is his submission that learned Civil Judge (Junior Division), Basudevpur rejected his application on the ground that although a plea was taken that Defendant No.1 was ailing since 19.01.2010, but no medical certificate to substantiate the same was produced along with the application to substantiate the plea for setting aside the ex parte order. Hence, this CMP has been filed.

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Mr. Ray, learned counsel for the Petitioner further submits that learned trial court ought to have given him an

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opportunity to file the same. In view of the impugned order, a valuable right of the Petitioner is taken away. He, therefore, prays for setting aside the impugned order and to direct the learned trial court to accept the written statement intended to be filed by Defendant No. 1.

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From the office note, it appears that A.D. returned from Opposite Party Nos. 1 and 2 after valid service of notice. The Opposite Party Nos.1 and 2 are Plaintiffs in the suit. The Opposite Party Nos. 3 to 6 are Defendant Nos.2 to 5 before the trial court.

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Taking into consideration the submission of Mr. Ray, learned counsel for the Petitioner and the fact that the Defendant No.1-Petitioiner is interested in filing the written statement and contesting the suit, this Court is of the considered opinion that he should be given an opportunity to file the same by setting aside the order dated 19.01.2021, whereby the Defendant No.1-Petitioner was set ex parte.

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Accordingly, this Court sets aside the order dated 24.04.2013 under Annexure-6 as well as the order dated 19.01.2010 under Annexure-3 passed by learned Civil Judge (Junior Division), Basudevpur and permits the Defendant No.1-Petitioner to file the written statement within a period of two weeks hence, which shall be accepted subject to payment of cost of Rs.2000/- (Rupees two thousand) to the Plaintiffs within that period. Thereafter, learned Civil Judge shall proceed with the matter in accordance with law, if the same is still pending, for adjudication. It is made clear that in the

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event the Defendant No.1-Petitioner fails to comply with the aforesaid direction, learned Civil Judge shall proceed with the suit and make an endeavour for early disposal of the same, if pending for adjudication.

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With the aforesaid observation and direction, the CMP is allowed.

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As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Court’s Notice No. 4587 dated 25^th March, 2020 as modified by Court’s Notice No. 4798 dated 15^th April, 2021.

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…………………….......

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K.R. Mohapatra, J.

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bks

Sadhu Mallick @Sadhu v. Ganesh Pr.Mallik

Case brief

What is this about?

What did the court decide?

Sadhu Mallick @Sadhu v. Ganesh Pr.Mallik

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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