Allowed¶24

Bankim Chandra Jena v. Madhusudan Jena

Orissa HC21 Mar 2025CMP/45/2025

Case brief

AI extract

What is this about?

Setting aside ex parte order; application under Order 9 Rule 7 CPC; refusal to accept written statement under Order 8 Rule 9 CPC; ex parte evidence received despite pending application; effect of earlier partition and compromise decree attaining finality (C.S. No.20 of 1992); partition suit C.S. No.85/107 of 2013; 3rd Additional Senior Civil Judge, Balasore; Orissa High Court CMP; writ interference with civil court order; opportunity to defend suit; miscarriage of justice.

What did the court decide?

Petition allowed; the learned 3rd Additional Senior Civil Judge, Balasore is directed to accept the written statement (Annexure-4) upon the impugned order dated 18th May, 2023 (Annexure-6) being set aside, and to proceed with the suit for disposal in accordance with law; no order as to costs. ¶24

Bankim Chandra Jena Vs Madhusudan Jena — Orissa HC (2025) — LawSathi Research

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.45 of 2025

Bankim Chandra Jena

…. Petitioner

Mr. M. Mohanty, Advocate

¶6

-Versus-

¶7

Madhusudan Jena & others …. Opposite Parties

¶8

None

¶9

CORAM: MR. JUSTICE R.K. PATTANAIK

ORDER

21.03.2025

Order No.

Heard Mr. Mohanty, learned counsel for the petitioner.

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No notice is issued to opposite party No.1, as the matter is disposed of at the stage of admission. Furthermore, notices vis-à-vis opposite party Nos.2 to 9 are hereby dispensed with, considering the submission of Mr. Mohanty, learned counsel for the petitioner.

¶16

Instant petition is filed by the petitioner challenging the impugned order under Annexure-6 passed in connection with C.S. No.85/107 of 2013 by the learned 3^rd Additional Senior Civil Judge, Balasore, whereby, an application under Order 9 Rule 7 CPC seeking the ex parte order set aside was rejected denying to accept the WS submitted in terms of Order 8 Rule 9 CPC.

¶17

Mr. Mohanty, learned counsel for the petitioner submits that on the date of hearing of the suit i.e. on 07.03.2024, the application under Order 9 Rule 7 CPC was filed to set aside the ex parte order dated 18^th May, 2023, however, the same was not entertained and ex parte evidence was received. The further

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submission of Mr. Mohanty, learned counsel is that the said application was finally disposed of and rejected vide Annexure-6 on the premise that the suit is posted for argument. The submission is that learned Court below could not have held so when the application under Order 9 Rule7 CPC was filed on 7^th March, 2024, the date on which, ex parte evidence was received from the side of the plaintiff. The contention is that an earlier suit was disposed of with partition in respect of the plot under Khata No.235 more fully described in Lot-I and it was in connection with C.S. No.20 of 1992 (I), however, the same was once again included in the suit, when in such partition, the property measuring an area Ac.2.07 was allotted to the petitioner. Referring to a copy of the WS as at Annexure-4, Mr. Mohanty, learned counsel for the petitioner would submit that such fact was brought to the notice of the learned Court below, but it was not duly taken cognizance of. The further submission is that unless and until the ex parte order dated 18^th May, 2023 is set aside with an opportunity provided to the petitioner to defend the suit upon acceptance of WS i.e. Annexure-4, it would lead to miscarriage of justice.

¶20

A copy of the plaint is at Annexure-1 and the suit is at the instance of opposite party No.1 seeking partition of the schedule property described therein. From Annexure-7 series, this Court finds that on 7^th March, 2024, the petitioner filed the application under Order 9 Rule7 CPC with a request to accept the WS. The Court further finds that on the said date, ex parte evidence was received by the learned Court below in spite of such an application filed by the petitioner. Not only that, the petitioner requested the ex parte order dated 18^th March, 2024 to be set aside allowing him to participate in the suit, but also for acceptance of WS. This Court, considering the submission of Mr. Mohanty, learned counsel for the

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petitioner and in view of the order dated 7^th March, 2024 as at Annexure-7 series, is of the view that the learned Court below should not have declined to accept the WS especially when a part of the property involved had already been claimed to be partitioned earlier in C.S. No.20 of 1992 with a compromise decree dated 16^th January, 1992, which attained finality, as was not further challenged. In order words, learned Court below ought to have accepted the WS in spite of such delay with the ex parte order dated 18^th May, 2023 set aside for a decision in the suit on merit in view of the fact that there was earlier partition in C.S. No.20 of 1992 and a decree of the learned Civil Judge (Junior Division), Balasore including the extent of land under Lot-1 claimed to have allotted in favour of the petitioner. Having said that, this Court is inclined to hold that the impugned order under Annexure-6 is not legally sustainable and hence, calls for interference.

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6. Accordingly, it is ordered.

¶24

In the result, the petition stands allowed with a direction to the learned 3^rd Additional Senior civil Judge, Balasore to accept the WS as at Annexure-4 upon the impugned order dated 18^th May, 2023 under Annexure-6 passed in connection with C.S. No.85/107 of 2013 by the learned 3rd Additional Senior Civil Judge, Balasore having been set aside and thereafter, to proceed with the suit for its disposal as per and in accordance with law. In the circumstances, however, there is no order as to costs.

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8. Urgent certified copy of this order be issued as per rules.

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(R.K. Pattanaik)

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Judge Signature Not Verified

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Digitally Signed Signed by: ALOK RANJAN SETHYAlok Reason: Authentication Location: ORISSA HIGH COURT Date: 24-Mar-2025 11:47:37

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Bankim Chandra Jena v. Madhusudan Jena

Case brief

What is this about?

What did the court decide?

Bankim Chandra Jena v. Madhusudan Jena

Case brief

What is this about?

What did the court decide?

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