The court upheld that absent parties must provide sufficient cause for non-appearance to set aside ex-parte judgments, emphasizing that unproven documents do not establish claims.

JUDGMENT :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Pursuant to order of even date passed in CMAPL No.646 of 2023, the CMP is restored. On consent of learned counsel for the parties, CMP No.328 of 2023 is taken up on merit.

3. Order dated 3^rd August, 2013 (Annexure-1) passed in Misc. Appeal No.44 of 2000 is under challenge in this CMP, whereby learned Additional District Judge, Jajpur dismissing the appeal confirmed the order dated 7^th September, 2000 (Annexure-2) passed by learned Civil Judge (Senior Division), Jajpur in MJC No.101 of 1994 dismissing an application under Order IX Rule 13 CPC.

4. Petitioners were Defendants 2 and 3 in Title Suit No.182 of 1990 filed by Opposite Party No.1 for partition. Defendants did not file their written statement in the suit. Due to their absence, Defendant Nos.2 and 3 were set ex-parte and the ex-parte hearing was taken up on 26^th April, 1994. The evidence of Plaintiff/Opposite Party No.1 was recorded on 26^th April, 1994 and ex-parte judgment was passed on 30^th April, 1994. Petitioners filed MJC No.101 of 1994 under Order IX Rule 13 CPC to set aside the ex-parte judgment and decree on the ground that Defendant No.3-Petitioner No.2, was staying at village. He was looking after the suit. But he fell ill from 20^th March, 1994 to 15^th June, 1994 for which, he could not remain present in Court on 26^th April, 1994, i.e., on the date of hearing. Accordingly, the Petitioners were set ex-parte and the ex-parte decree was passed. MJC No.101 of 1994 was dismissed vide order dated 7^th September, 2000 (Annexure-2) holding that Ext.1, the medical certificate issued on 19^th June, 1994 was not proved. The Defendant No.1, who was also set ex-parte had filed MJC No.102 of 1994, which was dismissed on contest. Having failed in their attempt to get the ex-parte decree set aside through Defendant No.1, the Petitioners moved the petition in MJC No.101 of 1994, which also faced the same fate. Petitioners were also not present on 7^th March, 1994 when the suit was posted for ex-parte hearing. No sufficient cause was assigned by the Petitioners for not appearing in the suit when it was called on for hearing. As such, the MJC was dismissed. Assailing the same, Petitioners preferred Misc. Appeal No.44 of 2000. The Appeal was also dismissed on the ground that no written statement was filed by the Defendants. Petitioners also did not satisfy the Court with regard to sufficient cause for not appearing when the suit was posted for ex-parte hearing. In the ex-parte judgment and decree, the interest of the Petitioners was taken care of.

4.1 It is further submitted by Mr. Mohanty, learned counsel for the Petitioners that medical certificate granted by the treating Physician, namely, Dr. Gunanidhi Mohanty was not disputed by the Plaintiff/Opposite Party No.1. Further, the Plaintiff/Opposite Party No.1, in his evidence, had admitted that Dr. Gunanidhi Mohanty was a registered medical practitioner. Since the illness of Petitioner No.2 was never challenged, the petition under Order IX Rule 13 CPC ought to have been allowed.

4.2 Mr. Mohanty, learned counsel for the Petitioners also submits that no objection was filed to the petition under Order IX Rule 13 CPC either by the Plaintiff or Defendant No.1. Learned counsel for the Petitioners also relies upon the case of Bankim Chandra Dey vs Pulin Bihari Dey and others reported in (2014) II OLR 64 and submits that in a Civil Suit, the party will succeed if he satisfies the Court by proving the fact by preponderance of probability. Since the Petitioners have proved their case prepondering all probabilities, the same should have been accepted and the petition under Order IX Rule 13 should have been allowed.

5. Mr.