The High Court of Orissa dismissed a civil revision petition seeking to set aside an ex-parte order and allow filing of a written statement. The court held that the petitioners waived their rights by cross-examining witnesses and distinguished favorable precedent based on specific facts and timing of evidence.
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IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 92 of 2023
Kshira Dharua and others
…. Petitioners Mr.Jagabandhu Sahu, Advocate
-versus-
Ramesh Pradhan and another …. Opp. Parties
CORAM: JUSTICE K.R. MOHAPATRA
ORDER
Order No.
04.04.2023
that although Defendants entered appearance pursuant to summons received, but due to intervention of COVID-19 and that the Defendant No.1 failed seriously ill, no step could be taken to file written statement in time. The suit has been filed by for permanent injunction and for recovery of possession, if it is found that the Plaintiffs have been dispossessed during pendency of the suit. When the Defendant No.1 was seriously ill, Defendant Nos.2 and 3 were busy in taking care of her. Thus, the written statement could not be filed in time. Defendants/Petitioners were set ex-parte on 9th December, 2021. Hence, an application under Order IX Rule 7 CPC was filed by
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the Petitioners to set aside the ex-parte order and accept the written statement, which was rejected.
3.1 It is his submission that there is no legal bar to accept the written statement filed by the Petitioners even after commencement of the trial. In the instant case, only one witness has been examined. In the case of Bije @ Bijay @ Bijay Chandra Bhoi and another Vs. Kishore Bhoi , reported in 2011 (27) OLR 268, this Court while setting aside the ex-parte order, directed to accept the written statement at the stage of argument of the suit. Hence, the Petitioners should be allowed to file their written statement and contest the suit. He, therefore, prays for setting aside the impugned order.
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the Petitioners cannot be relegated back to the position before commencement of the trial. The Petitioners had occasion to file an application under Order IX Rule 7 CPC and to file the written statement before commencement of trial. It appears from record, PW-1 filed his evidence in-chief on 23rd August, 2022, i.e., eight months after the Defendants were set ex-parte. Perusal of the petition under Order IX Rule 7 CPC clearly discloses that the Petitioners have made averments to the effect that the Defendant No.1 was seriously ill and Defendant Nos.2 and 3 were engaged for her treatment for which they could not attend the Court and file the written statement. Neither duration of illness of Defendant No.1 nor any details of such illness has been provided in the petition under Annexure-3. It is submitted by Mr. Sahu, learned counsel for the Petitioners that due to outbreak of COVID-19 the Petitioners could not filed the written statement in time. That is not the plea of the Petitioners in the in the petition under Order IX Rule 7 CPC. However, even after normal functioning of Court work after COVID period, the Petitioners had the opportunity to file written statement. No averment to that effect been made in the petition under Annexure-3. As such, the case law in Bije @ Bijay @ Bijay Chandra Bhoi and another (supra) is not applicable to the case of the Petitioners as taking into consideration the facts and circumstances of that case, this Court had allowed filing of written statement at a belated stage.
s.s.satapathy
(K.R. Mohapatra) Judge
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3 issues framed by the court
Whether petitioners can be allowed to file written statement and set aside ex-parte order after commencement of trial and cross-examination.
Whether delay in filing written statement due to illness or COVID-19 vouchsafes relief against set aside of ex-parte order.
Whether case law permitting belated filing of written statement is applicable to present facts.
Colour shows how this judgement treated each authority
Bije @ Bijay @ Bijay Chandra Bhoi and another Vs. Kishore BhoiDistinguished¶1924
2011 (27) OLR 268
Arjun Singh Vs. Mohindra Kumar and othersRelied on¶21
AIR 1964 SC 993 · Who else cites this
Kshira Dharua and others
Ramesh Pradhan and another
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
