The right to defend one's case is prioritized, allowing the defendant to contest a suit after compensating for any prejudice caused to the plaintiff.

JUDGMENT :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. The Petitioner in this writ petition seeks to assail the order dated 6th November, 2009 (Annexure-3) passed in Civil Suit No.19 of 2008-III, whereby learned Civil Judge (Senior Division), Balasore rejected an application filed by the Petitioner under Order VIII Rule 9 read with Order IX Rule 7 CPC filed with a prayer to set aside the ex parte order and to accept the written statement.

3. Mr. Das, learned counsel submits that the Petitioner is the sole Defendant in the suit. He entered appearance on 10th September, 2008. But, due to his illness, the Defendant-Petitioner could not file the written statement within the stipulated period. Hence, he was set ex parte. However on 23rd March, 2009, the Petitioner filed an application under Order VIII Rule 9 read with Order IX Rule 7 CPC to set aside the ex parte order and to accept the written statement filed along with the said petition. The said application was rejected on the ground that the Petitioner has not made out any case to accept the written statement after a lapse of six months. Status report at Flag-Y submitted by learned District Judge, Balasore indicates that the suit was posted to 16th April, 2024 for ex parte hearing.

3.1. He further submits that the suit has been filed by the Plaintiff-Opposite Party for damages. Unless the Petitioner is provided with an opportunity to file his written statement and contest the suit, he will be highly prejudiced and will be defenseless. He, therefore, submits that a lenient view may be taken and the Petitioner may be allowed to file his written statement and contest the suit.

4. Mr. Patnaik, learned counsel for the Plaintiff-Opposite Party vehemently objects to the above. It is his submission that the Defendant-Petitioner has not made out any case to set aside the ex parte order and to accept the written statement at a belated stage. At present, the suit is posted for ex parte hearing. The Petitioner has all throughout neglected in participating in the proceeding of the suit, for which the Opposite Party is seriously prejudiced. Although the suit was filed in the year, 2008 for recovery of damages, but as yet, the Plaintiff-Opposite Party could not be successful in recovering the same. He, therefore, submits that the writ petition merits no consideration.

5. Heard learned counsel for the parties and perused the materials on record.

6. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that along with the petition for setting aside the ex parte order and to accept the written statement, the Defendant-Petitioner had filed medical certificate in support of his illness. As pointed out by learned trial Court, there was a delay of six months in filing the written statement, for which the Petitioner was set ex parte and at present, the suit is posted for hearing. Admittedly, the suit is filed for damages. Thus, the Defendant-Petitioner should be given an opportunity to contest the suit by filing the written statement. But, the prejudice caused to the Plaintiff-Opposite Party should be compensated with adequate cost.

7. On perusal of the impugned order under Annexure-3, this Court finds that learned trial Court rejected the petition under Order VIII Rule 9 read with Order IX Rule 7 CPC only on the ground that the Petitioner failed to file the written statement within the stipulated period. It is also observed that the Medical Officer, C.H.C., Simulia, Balasore had pointed out that the Defendant was suffering from cirrhosis of liver. But, in the petition filed und