Bhima Charan Nayak Vs Harmohan Jena

227 of the Constitution of India, 1950 has been filed by the petitioners (plaintiffs in the suit vide C.S. No.197 of 2010 in the Court of learned Civil Judge, Jr. Division, Bhadrak) praying for setting aside the dismissal order dated 12.07.2023 passed in CMA No.206 of 2022 under O.9 R.4 read with Section 151 of the CPC, 1908 by the learned Civil Judge (Jr. Division), Bhadrak.

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2 . The factual backgrounds of this CMP, which prompted the petitioners for filing of the same is that, the petitioners being the plaintiffs filed the suit vide C.S. No.197 of 2010 in the Court of

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learned Civil Judge (Jr. Division), Bhadrak against the defendant (O.P. in this CMP) praying for declaration of their right, title and interest over the suit properties along with other reliefs.

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In that suit vide C.S. No.197 of 2010, the defendant (O.P. in this CMP) filed written statement along with counter claim.

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The said suit vide C.S. No.197 of 2010 of the plaintiffs was dismissed on dated 22.08.2022 for their default.

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On the same day, the counter claim of the defendant in that suit was also dismissed for the default of the defendant.

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Therefore, the plaintiffs filed CMA No.206 of 2022 under Order 9, Rule 4 of the CPC, 1908 against the defendant praying for setting aside the said dismissal order dated 22.08.2022 passed in C.S. No.197 of 2010 for their default on the ground of illness of one plaintiff, who was looking after the suit on behalf of other plaintiffs, but after hearing, the learned Civil Judge (Jr. Division), Bhadrak dismissed to the said CMA No.206 of 2022 of the plaintiffs on dated 12.07.2023.

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For which, the plaintiffs challenged the said dismissal order passed on dated 12.07.2023 in CMA No.206 of 2022 by the learned Civil Judge (Jr. Division) Bhadrak filing this CMP being the petitioners against the defendant arraying him (defendant) as Opp. Party.

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3 . Heard from the learned counsels of both the sides.

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4 . It is the settled propositions of law that, “ the Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing on merit .”

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5 . The said propositions of law has already been clarified by the Apex Court in a decision between Sumitbai & Others Vrs. Paras

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Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors. reported in (2007) 10 SCC 82 that,

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the Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing on merit .

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6 . Here in this matter at hand, when both i.e. the suit as well as

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the counter claim of the parties in the suit vide C.S. No.197 of 2010

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were dismissed by the learned Civil Judge (Jr. Division), Bhadrak purely on technical ground i.e. for the default of the plaintiffs and defendant and when it is the main purpose/object of the Code of Civil Procedure is to enable both the parties to get hearing of the suit on merit, for no other reason, but only in order to avoid the multiplicity of litigations/proceedings between the parties for the self same subject matter and when it is the duty of a good Judge to take its best endeavour to decide the suit between the parties on merit instead of disposing of the same on any technical ground and when it is very

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fundamental in law that, it is the duty of a good Judge should always

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try to put an end to the litigation relating to a matter between the parties, but not to allow to grow a suit out of a suit, which concerns the welfare of the State, then at this juncture, by applying the above principles of law to this matter at hand, I find no justification to disallow this CMP filed by the petitioners .

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7 . Therefore, this CMP filed by the petitioners is allowed.

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8 . The impugned order of dismissal to the CMA No.206 of 2022 passed on dated 12.07.2023 by the learned Civil Judge (Jr. Division), Bhadrak is set aside and the CMA No.206 of 2022 filed by the petitioners is allowed.

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9 . When, the CMA No.206 of 2022 filed by the petitioners is allowed, then the order of dismissal to the suit of the petitioners/plaintiffs, vide C.S. No.197 of 2010 passed on dated 22.08.2022 by the learned Civil Judge (Jr. Division), Bhadrak is set aside.

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10 . Due to the setting aside of the dismissal order of the suit passed on dated 22.08.2022 vide C.S. No.197 of 2010 by the learned Civil Judge (Jr. Division), Bhadrak, the suit vide C.S. No.197 of 2010 is restored to its position as it was prior to its dismissal on dated 22.08.2022.

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11 . As per the submissions of the learned counsels of both the

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sides, when the Opp. Party in this CMP i.e. the defendant in the suit vide C.S. No.197 of 2010 has filed CMA No.150 of 2025 for restoration of his counter claim and when the said CMA No.150 of 2025 is pending/subjudice before the learned Civil Judge, (Jr. Division), Bhadrak, then, at this juncture, by applying the principles of law enunciated by the Apex Court in the ratio of the aforesaid decision, the learned Civil Judge (Jr. Division), Bhadrak should consider that CMA No.150/2025 of the Opp. Party (defendant) liberally in his favour to enable both the parties to get hearing their controversies relating to the subject matter in the suit and counter claim on merit.

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12 . As such, this CMP filed by the petitioners is disposed of finally.

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(A.C. Behera), Judge.

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Orissa High Court, Cuttack. 19.02.2026//Utkalika Nayak// Junior Stenographer

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Signature Not Verified

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Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2026 13:07:54

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Bhima Charan Nayak v. Harmohan Jena

Case brief

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Bhima Charan Nayak v. Harmohan Jena

Case brief

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