Dismissed

Goura Kumar Sabat v. Rajeswari Sahu

Orissa HC2 Jan 2023CMP/481/2018

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed the company memorandum petition challenging the trial court's rejection of an application to file a written statement. The court held the application was filed with undue delay after evidence was closed, relying on settled law against relegating parties before trial commencement.

What did the court decide?

The CMP is dismissed; the petitioner is not permitted to file the written statement.

Goura Kumar Sabat Vs Rajeswari Sahu — Civil Procedure and Limitation | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 481 OF 2018

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Goura Kumar Sabat

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…. Petitioner

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Mr. Soubhagya Kuamr Dash, Advocate

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-versus-

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…. Rajeswari Sahu and others Opp. Parties

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

02.01.2023

This matter is taken up through hybrid mode.

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The Petitioner in this CMP seeks to assail the order dated 16^th March, 2018 (Annexure-5) passed learned Civil Judge (Senior Division), Berhampur in C.S. No. 365 of 2011 rejecting an application under Order IX Rule 7 C.P.C. filed by the Petitioner to file written statement.

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Mr. Dash, learned counsel for the Petitioner submits that although notice of the suit was served on Defendant No.5 (present Petitioner), but copy of the plaint was not served on him for which he could not file written statement in time. However, after commencement of trial, the Petitioner filed an application under Order IX Rule 7 C.P.C. to file written statement. Learned trial Court taking into consideration that evidence from the side of the Plaintiff has been closed and this Court in CMP No. 1869 of 2016 directed to dispose of the suit expeditiously rejected the prayer of Defendant No.5-Petitioner to file written statement. It is his submission that no opportunity was afforded to the Defendant No.5-Petitioner to file written statement as he was not served with a copy of the plaint. The said aspect was brushed aside by learned trial Court while considering the application

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under Order IX Rule 7 C.P.C. Hence, he prays for setting aside the impugned order under Annexure-5 and to permit the Petitioner to file written statement and contest the suit by adducing evidence.

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Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that evidence from the side of the Plaintiff has been closed. At that stage, an application under Order IX Rule 7 C.P.C. was filed. There is no explanation as to why the application under Order IX Rule 7 C.P.C. could not be filed before commencement of the trial. Law is well settled in Arjun Singh –v- Mohindra Kumar and others , reported in AIR 1964 SC 993, that while considering the application under Order IX Rule 7 C.P.C. to set aside the ex parte order, a party cannot be relegated back to the position before commencement of the trial. Further, it appears that this Court in CMP No. 1869 of 2016 directed for early disposal of the suit. Although the Petitioner was set ex parte on 10^th April, 2012, the application under Order IX Rule 7 C.P.C. was filed on 14^th March, 2018. No explanation for such delay has been offered by the Petitioner.

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In that view of the matter, this Court feels that learned trial Court has committed no error in passing the impugned order. Accordingly, the CMP being devoid of any merit stands dismissed.

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Urgent certified copy of this order be granted on proper application.

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bks

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Goura Kumar Sabat v. Rajeswari Sahu

Case brief

What is this about?

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Goura Kumar Sabat v. Rajeswari Sahu

Case brief

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