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ORISSA HIGH COURT
Krushna Ram Mohapatra, J.
Mamata Samantaray – Petitioner
versus
Saraswati Patra – Opp. Party
C.M.P No.64 of 2023
Decided on 3.5.2023
Code of Civil Procedure, 1908 – Order IX Rule 13, Order XVII Rules 2, 3(b) – Eviction and recovery suit – Ex parte decree – Setting aside – Suit decreed on contest – Reading of Rules 2 and 3 made clear that when party is absent on date to which suit is posted for hearing, Court may proceed in any of modes as provided under Order IX – To contrary, where party to suit to whom time has been granted to produce evidence, or cause attendance of witness, fails to do so or fails to perform any act for which time has been allowed, Court in its discretion, notwithstanding such default, may proceed to decide suit forthwith, provided parties are present – If such party is absent, only option left with Court is to proceed with suit in any of modes provided under Order IX – After closure of evidence of Plaintiff, suit was posted to different dates for adducing evidence on behalf of Defendant – Defendant-Petitioner did not adduce evidence and went on seeking adjournments either being present in person or through her counsel – Defendant and her Advocate were remained present on dates to which hearing of suit was being adjourned – No evidence has been led by Defendant – Explanation to Rule 2 has no application – Case of Petitioner squarely falls under Rule 3(a) of Order XVII C.P.C., as Defendant failed to perform act for which hearing of suit was adjourned being present in Court through her Advocate – A party cannot be allowed to take advantage of his own fault at cost of prejudice to adversary –Conduct of Defendant clearly illustrates that she chose not to adduce any evidence on her behalf being present in Court – It cannot be said that suit was decided ex parte – There is also no explicit order passed by trial Court setting Defendant ex parte – Courts have committed no error in holding that petition under Order IX Rule 13 C.P.C. would not be maintainable, as suit was decreed on contest. [Paras 9, 10, 11, 12]
Result: Petition dismissed.
JUDGMENT
Krushna Ram Mohapatra, J.—This matter is taken up by virtual/physical mode.
2. Order dated 20th December, 2022 (Annexure-4) passed in FAO No.162 of 2022 is under challenge in this CMP, whereby learned District Judge, Khurda at Bhubaneswar dismissing the appeal, confirmed order dated 12th October, 2022 (Annexure-2) passed by 1st Additional Senior Civil Judge, Bhubaneswar in CMA No.69 of 2021 (arising out of CS No.310 of 2017) rejecting an application filed by the Sasanka Digitally signed by Sasanka Sekhar Sekhar Petitioner under Order IX Rule 13 CPC.
3. Facts of the case are not much disputed. CS No.310 of 2017 was filed by the Plaintiff-Opposite Party for eviction, recovery of outstanding monthly rent along with arrear electricity and water charges as well as for recovery of damages from the Defendant-Petitioner. On 6th April, 2018, Plaintiff filed her evidence in affidavit serving copy thereof on the Defendant. On 11th April, 2018, the Plaintiff was examined as PW-1 and exhibited documents as Ext.1 to Ext.15. She was also partially cross-examined by the Defendant. On 8th May, 2018, evidence from the side of the Plaintiff was closed and the suit was posted to 10th May, 2018 for adducing evidence on behalf of the Defendant. After taking several adjournments, the Defendant filed an application on 25th January, 2020 to recall PW-1 for further cross-examination, which was allowed. On recall, the PW- 1 was cross-examined on 15th February, 2020 and was discharged.
3.1 Thereafter, the suit was posted to 17th February, 2020 for evidence on behalf of the Defendant. As the Defendant took several adjournments and did not co-operate for conclusion of the trial of the suit by adducing evidence, the Plaintiff moved this Court in CMP No.112 of 2020, which was disposed of on 6th February, 2020 with a direction to hear the suit on day-to-day basis. Accordingly, the suit was posted to 7th March, 2020 for evidence of the Defendant, on which date an application for adjournment was filed by the Defendant. The said application was allowed subject to payment of cost of Rs.100/-.
3.2 Thereafter, the suit was adjourned to different dates from 7th March, 2020 to 4th October, 2021. On 4th October, 2021, the Defendant being personally present filed an application for adjournment, which was allowed adjourning the suit to 5th October, 2021 as a last chance for adducing evidence on behalf of Defendant. Again on 5th October, 2021, learned Advocate for the Defendant filed a petition for adjournment on the ground of illness of the Defendant. The said application was rejected and evidence from the side of the Defendant-Petitioner was closed. The suit was thus posted to 7th October, 2021 for argument. On 7th October, 2021, the Plaintiff argued the matter in part, as the Defendant remained absent. The suit was then posted to next day, i.e., 8th October, 2021 for further argument. On the said date, the Defendant filed an application under Order VI Rule 17 CPC for amendment of the written statement, which was rejected on the very same day and the argument was taken up. As such, judgment of the suit was pronounced on contest on 11th October, 2021. The decree was also signed on 27th October, 2021.
3.3 On 3rd November, 2021, the Defendant filed an application under Order IX Rule 13 CPC (CMA No.69 of 2021) to set aside the judgment and decree passed in CS No.310 of 2017 stating that the suit was decreed ex-parte. The Plaintiff filed objection on 22nd June, 2022 stating that the petition under Order IX Rule 13 CPC was not maintainable, as the suit was decreed on contest. Learned 1st Additional Civil Judge (Senior Division), Bhubaneswar after hearing the parties, vide order dated 12th October, 2022 (Annexure-2) held the petition under Order IX Rule 13 CPC to be not maintainable since the suit was decreed on contest. The Defendant-Petitioner being aggrieved by the said order preferred FAO No.162 of 2022. Learned District Judge, Khurdha at Bhubaneswar also holding
Ex parte decree – A party cannot be allowed to take advantage of his own fault at cost of prejudice to adversary - Courts have committed no error in holding that petition under Order IX Rule 13 C.P.C....
Setting aside ex-parte decree – Real test for adjudication of a petition under Order IX Rule 13 CPC is whether litigant upon learning about ex-parte decree takes immediate steps in filing application....
The main legal point established in the judgment is the necessity for parties to appear and adduce evidence in a suit, as emphasized by the provisions of Order XVII Rule 2 and Order XVII Rule 3 of th....
The court emphasized the necessity of allowing a defendant to participate in proceedings, ruling that procedural errors in ex-parte judgments violate principles of natural justice.
A defendant may set aside an ex-parte decree if sufficient cause for absence is shown, as per Order 9 Rule 13 of the CPC.
The Court established that a petition under Order IX Rule 13 C.P.C. is maintainable without a formal order setting the defendant ex parte, and the nature of the judgment and decree is determinative i....
The failure to file an application for condonation of delay when seeking to set aside an ex parte decree under Order IX Rule 13 CPC is a fatal procedural defect, leading to dismissal of the applicati....
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