IMPORTANT POINT
Where an application under Order 9, Rule 7 of CPC had been allowed by setting aside the ex parte decree by accepting written statement filed by defendants petitioner, then the written statement having been accepted, position relegated back to stage of filing of written statement.

Dr. B. R. Sarangi, J.— Challenging the order dated 5.3.2005 passed by the learned Civil Judge (Junior Division), Dhenkanal in C.S. No. 24/2003 rejecting the petition filed by the defendants-petitioners praying for settlement of issues after accepting written statement filed on their behalf, this writ petition has been filed.

2. The brief fact of the case, in hand, is that the plaintiff-opposite party filed C.S. No. 24 of 2003 before the learned Civil Judge (Junior Division), Dhenkanal seeking for permanent injunction against the defendant-petitioners not to interfere with the peaceful possession of the land and not to alienate the suit land in favour of anybody. It appears that the father of the plaintiff-opposite party was granted Ac. 2.00 dec. of land as Chowkidar. He succeeded to his father. During settlement operation it was found that on 20.2.2003 the land was recorded in the name of Madhua Ojha and thereafter in the name of the defendant-petitioners as legal heirs in a mutation proceeding, which are wrong and fascinated. During 1965 settlement operation one Sudarsan Rout, who was looking after the settlement operation managed to record in the R.O.R. the name of the father of the defendant-petitioners as owner and his name as unauthorized occupier from 1959. After the death of the father of the plaintiff-opposite party, he initiated Mutation Case No. 117 of 1993, which did. not proceed. The defendants-petitioners are trying to snatch away the suit land by identifying through R.I. and police. The plaintiff-opposite party is in possession and L.I.R. case is pending. The R.O.R. in the name of defendants-petitioners is wrong. Though the property is recorded as bebandobasti, the land belongs to intermediary. The defendant-petitioners claim to have acquired the land in O.E.A. proceedings. The plaintiff-opposite party also claimed adverse possession.

3. The defendant-petitioners were set ex parte. Thereafter on 6.4.2004, the defendants-petitioners filed an application to recall the ex parte order and for cross-examination of the witnesses of plaintiff- opposite party alongwith the written statement. In the written statement the defendants-petitioners while denying the plaint averments, pleaded that the suit land was originally part of the personal property of erstwhile King of Dhenkanal but the name of Madhu Ojha, the common ancestor of the defendants-petitioners was reflected in the R.O.R. on the strength of his service for construction of Rath (for Car Festival). Subsequently, the land was vested to the Government and after such vesting since Madhu Ojha was the possessor vide Bebandobasta Case No. 499 of 1997, a proceeding was drawn up to settle the land as well as to fix the land revenue for the suit land and other properties under Khata No. 538 and as per the said proceeding the defendants-petitioners became the R.O.R. holder and paying the rent to the State till date, they are enjoying the suit land along with other properties of Banamali Prasad Mouza, which has been mutated in their favour vide new Khata No. 535/674. The defendant-petitioners raising various Rabi crops, have been possessing the land till date and further the’ learned Court has no jurisdiction to decide the verdict of the Collector under O. E.A. Act in the present suit.

4. The application filed on 6.4.2004 for recalling the order, was rejected on 9.7.2004 and the matter was posted for argument. Thereafter, the P.O. was transferred. The case was taken up for hearing on 15.1.2005. The defendants-petitioners filed a petition to accept the written statement and for cross-examination of the plaintiffs witness. The learned Court below held that the defendants-petitioners can be permitted to file written statement and thereby allowed the defendants-petitioners to file written statement by paying a cost of Rs. 200. The Court further held that as the suit is posted for argument afresh, the defendants-petitioners can at best participate in the hearing of the