IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.372 of 2025 Debi Prasad Giri …. Petitioner Mr. Sougat Dash, Advocate -Versus-

Pinki @Pritirekha Parida @ Giri …. Opposite Party None CORAM:

MR. JUSTICE R.K. PATTANAIK ORDER

30.04.2025 Order No.

01. 1. Heard Mr. Dash, learned counsel for the petitioner.

2. No notice is issued to the opposite parties since the matter is disposed of at the stage of admission.

3. Instant petition is filed by the petitioner challenging the impugned order dated 14th February, 2025 passed in connection with MAT Suit No.27 of 2024 as at Annexure-4 by learned Civil Judge (Senior Division), Udala, Mayurbhanj, whereby, an application under Order 9 Rule 7 C.P.C. pressed into service by him seeking the ex parte order to be set aside was declined.

4. Mr. Dash, learned counsel for the petitioner submits that the petitioner is the husband of the opposite party, who has instituted the suit seeking dissolution of marriage and therein, on the premise that notice was served and refused by the petitioner, he was set ex parte and thereafter, the suit was posted for ex parte argument and at that stage, the application under Order 9 Rule 7 C.P.C. was filed but it has not been entertained and dismissed. The submission of Mr. Dash, learned counsel is that notice was issued in an address at Nilagiri in the district of Balasore. It is claimed that the petitioner has left the place of address in 2017 and hence, notice issued in such address could not have been served on the petitioner but shown to have been so served and refused upon receipt of the S.R. as made to reveal from the impugned order dated 22^nd October, 2024 as at Annexure-5. The further submission is that the petitioner, immediately after the ex parte order as per Annexure-5, moved the application under Order 9 Rule 7 C.P.C. but in absence of sufficient cause being shown by him, as according to learned Court below, the same was rejected on the premise that the suit is pending at the stage of ex parte argument. The contention is that there is no bar as such to entertain such an application under Order 9 Rule 7 C.P.C. even at the stage of ex parte argument, the fact, which has not been duly taken cognizance of by the learned Court below, hence, the impugned order dated 14^th February, 2025 as at Annexure-4 suffers from legal infirmity and therefore, deserves to be interfered with in the interest of justice.

5. A copy of the order under Order 9 Rule 7 C.P.C. is at Annexure-2 and the same is perused. In the said application, the address statement of the petitioner is described with the plea that notice on such address at Nilagiri could not have been served as he had already left by then. In fact, an objection was received from the opposite party against the application under Order 9 Rule 7 C.P.C. In course of hearing, Mr. Dash, learned counsel for the petitioner submits that the petitioner has even instituted a suit for restitution of conjugal rights in C.P. No.237 of 2024. As earlier stated, the matrimonial suit is at the behest of the opposite party for a decree of divorce in terms of Section 13(1) of the Hindu Marriage Act. From Annexure-5, the Court finds that the suit was admitted on 24^th September, 2024 and notice was issued to the petitioner and on the next date i.e. on 19^th October, 2024, S.R. of the notice was not received back and hence, was fixed to 26^th October, 2024, the date on which, such notice was held sufficient after refusal of service and hence, the petitioner was set ex parte and then, the suit was posted for ex parte hearing and finally for argument. In the meantime, the application under Order 9 Rule 7 C.P.C. was filed on 25^th November, 2024, which is about a month after. On a reading of the impugned order i.e. Annexure-4, the Court finds that the application under Order 9 Rule 7 C.P.C. could not be allowed on the ground that the suit was fixed to ex parte argument, the contention of Mr. Dash, learned counsel for the petitioner is that there is no bar o