W.P.(C).No.17471 of 2010

8 30.11.2015 Heard Sri Mishra, learned counsel for the petitioner and Sri Bau

g, learned counsel appearing for the opposite party no.1.

This writ petition arises out of an order dated 23.9.201

0 passed by the learned Additional District Judge, Balasore in F.A.O. No.63/57 of 2007 whereby

the Additional District Judge has confirmed the rejection order dated 25.7.2007 passed by the

learned civil Judge (Junior Division), Balasore in Misc. Case No.41 of 1996 rejecting an appl

ication under Order 9, Rule 13 of the Code of Civil Procedure arising out of T.S.No.656 of 198

9-I.

In filing the writ petition, Sri Mishra, learned counsel for the petitioner submits that the

suit property was the ancestral property and the property was gifted to petitioner orally by h

er father on 6.4.1980. The suit has been decided ex parte as against the present petitioner.

The petitioner came to know about the ex parte decree passed in the said T.S.No.656 of 1989-I

,after about one and half years of the ex parte decree that too only when she was prevente

d from entering into the suit premises and told that there was an ex page decree against her

by a competent court of law. Immediately thereafter the petitioner filed an application unde

r Order 9, Rule 13 of the Code of Civil Procedure along with an application under Section 5 of

the Limitation Act for condonation of delay. In filing the application under Order 9, Rule 1

3 of the Code of Civil Procedure apart from taking the stand of ignorance of ex parte decree a

gainst her, the petitioner also contended that the ex parte decree is an outcome of suppressio

n/manipulation of service of notice on her. Sri Mishra, further submits that both the courts b

elow have failed to appreciate the allegations as well as the evidence in respect of non-se

rvice/manipulation of service of notice on the petitioner with oblique motive to manage to get

an ex parte decree and, thereby, both the courts have arrived at wrong finding.

Sri Baug, learned counsel appearing for the opposite party no.1 on the other

hand contended that the petitioner even after examination of witnesses failed to establish he

r allegation on manipulation in the service of notice on the her in the suit and in view of c

oncurrent finding of fact of both the courts below, there is no scope for interfering in the

impugned orders. Further, since the decree was passed about a decade back the party will be gr

eatly prejudiced in the event the suit is restored at this juncture and consequently prays for

rejection of the writ petition.

Having heard learned counsel for the parties a

nd after going through the impugned order, this Court finds that there is a serious allegation

of manipulation in service of notice on the petitioner by the plaintiff-opposite partyno.1.

The petitioner in filing the application under Order 9, Rule 13 of the Code of Civil Procedure

apart from making the ground for restoration of the suit has also explained her case in the s

uit justifying her right over the disputed property. Further, this Court finds that the trial

court even though considered the vital aspect on the allegation on service of notice on the p

etitioner but has failed to appreciate the loss going to suffered by the petitioner in the eve

nt the ex parte judgment and decree is allowed to stand.

From the submissions made by learned counsel appearing for the parties

and from the pleadings made, this Court feels that a valuable right of the petitioner is goin

g to be taken away by virtue of an ex parte decree and the suffering of the plaintiffs in the

event of a direction for re-trial can be considered by cost. Under the circumstances, this Cou

rt is inclined to interfere in the impugned order but keeping in view the suffering of the opp

osite party