S.Deviamma @ Beby Reddy Vs Pala Banamali Patre

Signature Not Verified

Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 19-Mar-2024 18:42:07

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP NO.192 OF 2024

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S. Deviamma @ Beby Reddy and others …. Petitioners

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Mr. Subham Sharma, Advocate

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-versus-

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Pala Banamali Patre

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…. Opp. Party

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CORAM: JUSTICE K.R. MOHAPATRA

Order No.

ORDER 18.03.2024

This matter is taken up through hybrid mode.

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Judgment dated 27^th December, 2023 (Annexure-5) passed in FAO No.04 of 2023 is under challenge in this CMP, whereby learned 3^rd Additional District Judge, Berhampur dismissed the appeal and confirmed the order dated 24^th January, 2023 (Annexure-3) passed by learned Civil Judge, (Junior Division), Berhampur in CMA No.13 of 2022 dismissing an application under Order IX Rule 13 CPC filed with a prayer to set aside the ex parte decree passed in CS No.72 of 2015.

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Mr. Sharma, learned counsel for the Petitioners submits that the Petitioners were the Defendants in CS No.72 of 2015. They were set ex parte on 22^nd December, 2018 and ex parte judgment and decree were passed on 5^th September, 2022 and 12^th September, 2022 respectively. Due to illiteracy and ignorance of the Defendants-Petitioners, the occasion to set them ex parte arose. Learned counsel for the Petitioners also made elaborate submission on the merits of the judgment and decree passed in the suit which is not the subject matter of consideration in this CMP. It is his submission that a valuable right of the Defendants is being taken away by not affording them an opportunity of hearing. Hence, the

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 19-Mar-2024 18:42:07

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impugned orders should be set aside and the Defendant should be given an opportunity of hearing in the suit.

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It is his submission that they had filed the written statement in the suit, but the same was not taken into consideration by learned trial Court, while passing the ex parte judgment. He, therefore, submits that the impugned orders under Anexures-3 and 5 should be set aside and the Defendants-Petitioners should be given an opportunity of hearing in the suit.

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Upon hearing learned counsel for the Petitioner and on perusal of the impugned orders under Annexures-3 and 5, it is abundantly clear that Defendants were thoroughly negligent in defending their right before learned trial Court. Although they had filed the written statement and intermediately participated in the proceedings of the suit, but they did not adduce any evidence in the matter in support of their case, for which they were set ex parte on 22^nd December, 2018. Sufficient reason for non-appearance of hearing has not been stated. It further appears that till disposal of the suit, the Defendants had knowledge about its proceedings. They were set ex parte in the year 2018, but no step was taken by them to set aside the ex parte order immediately. They allowed the suit to be decreed ex parte.

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Since the Defendants were thoroughly negligent in defending their right before learned trial Court, none of the Courts have committed any error in rejecting the prayer for setting aside the ex parte decree more particularly when the Defendants failed to show sufficient cause for their non-appearance on the date of hearing. Mr. Sharma, learned counsel for the DefendantsPetitioners, however, submits that the decree may be set aside with

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 19-Mar-2024 18:42:07

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a heavy cost so that the Defendants can get an opportunity of hearing.

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The Court may consider setting aside an order subject to payment of cost when the prejudice to the adversary can be compensated by payment of cost. In the instant case, a valuable right is accrued to the Plaintiffs by the ex parte judgment and decree and the Defendants have not shown sufficient cause for setting aside the ex parte decree as elaborately discussed by learned trial Court.

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In that view of the matter, this Court is not inclined to interfere with the impugned order.

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Accordingly, this CMP, being devoid of any merit, stands dismissed.

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Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge

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Rojalin

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S.Deviamma @ Beby Reddy v. Pala Banamali Patre

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S.Deviamma @ Beby Reddy v. Pala Banamali Patre

Case brief

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