Location: High Court of Orissa, Cuttack

Date: 15-Jan-2026 16:22:10

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.1473 of 2025

(In the matter of an application under Article 227 of the Constitution

of India)

Gyasuddin Khan .... Petitioner

-versus-

Kahkashan Khan .... Opposite Party

Advocate(s) appeared in this case:-

For Petitioner : Mr. S.K.Mohanty, Advocate

For Opposite Party : Ms. K.Khan, In Person along with

her son Mr. Arshad Khan

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

9^th January 2026 B.P. Routray, J.

1. Heard Mr. S.K.Mohanty, learned counsel for the Petitioner and Ms. K.Khan, who appears in person along with her son Mr.

A.Khan.

Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10

2. Present CMP is directed against order dated 31^st July 2025 passed by 2^nd Additional Senior Civil Judge, Bhubaneswar in C.M.A. No.149 of 2019 (arising out of C.S. No.115 of 2008), wherein the prayer of the Opposite Party under Order 9 Rule 13 of CPC was allowed.

3. The suit was filed by present Opposite Party as the Plaintiff praying for declaration of right title interest over the suit property. Present Petitioner who is the Defendant in the suit was the husband of the Plaintiff. The suit was dismissed for non-prosecution on 2^nd January 2015. It needs to be mentioned here that a counter claim was filed by the Defendant in the suit and the same after dismissal of the suit for non-prosecution continued to be there and in the counter claim the Plaintiff was set ex-parte. Ultimately, ex-parte judgment and decree dated 27^th April 2019 was passed in favour of the Defendant. Thereafter, the Plaintiff filed an application under Order 9 Rule 13 to set aside said ex-parte judgment and decree. The learned Trial Court upon adjudication of the prayer of the Plaintiff under Order 9 Rule 13 made in C.M.A. No.149 of 2019, set aside the ex-parte judgment and decree dated 27^th April 2019. It is further observed by the learned Trial Court that as a consequence of the Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 same, the original suit was restored to file and the counter claim being part of the same proceeding was also revived for fresh adjudication on merits.

4. It is submitted on behalf of the Defendant-Petitioner that the order of the learned Trial Court dated 31^st July 2025 is illegal not only for the reason that it has ignored the objection of the Defendant regarding alleged illness of the Plaintiff, but the learned Trial Court has also exceeded its jurisdiction directing restoration of the suit though the same was never prayed for by the Plaintiff.

5. In course of hearing, it is admitted on the part of the Plaintiff (present Opposite Party) that in her application under Order 9 Rule 13 of CPC the prayer was to the effect to set aside the ex-parte judgment and decree dated 27^th April 2019 passed in favour of the Defendant in the counter claim. Thus when it is clear that the Plaintiff has not prayed for restoration of the suit upon its dismissal for non-prosecution, learned Trial Court cannot direct for restoration of the same while dealing with the prayer in a separate petition under Order 9 Rule 13 of the CPC. Thus, it is concluded that such order of the learned Trial Court directing for restoration of the suit without Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 any prayer made on behalf of the Plaintiff under appropriate provisions or without filing any petition to that effect, is unsustainable and accordingly set aside.

6. So far as the challenge of the present Petitioner with regard to setting aside the ex-parte judgment and decree dated 27^th April 2019 is concerned, it is seen from the impugned order dated 31^st July 2025 that the parties have contested their case rigorously by adducing evidence from both sides. When the Plaintiff has examined herself as P.W.1, the Defendant examined him as O.P.W.1.

7. Perusal of the copy of CMA application (Annexure-2) and the objection to the same by the Defendant, reveals that wh