Advocates:
['LAKSHMAN MISHRA', '', 'S M DHAL', 'D SWAIN', 'M/S TUSHAR KUMAR MISHRA', 'P BASTIA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 420 OF 2022

Jogendra Jena and others

….

Petitioners

Mr. Lakshman Mishra, Advocate

-versus-

Bansidhar Jena and others

….

Opp. Parties

Mr. Tusar Kumar Mishra, Advocate

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

03.08.2022

4.

1.

This matter is taken up through hybrid mode.

2.

Petitioners in this CMP seek to assail the order dated 5^th

April, 2022 (Annxure-4) passed by learned Civil Judge (Senior

Division), Jajpur in C.S. No.288 of 2016, whereby an application

to set aside the ex parte order dated 22^nd February, 2019 passed

against the Petitioners-Defendants has been allowed by rejecting

the prayer to file written statement.

3.

C.S. No.288 of 2016 has been filed for partition. The

Defendant Nos.1 to 12 (Petitioners herein) appeared through their

counsel on 26^th April, 2016 and prayed for an adjournment to file

written statement. Due to non-filing of written statement in spite

of adjournments, they were precluded from filing written

statement vide order dated 26^th July, 2016. Subsequently, the

Defendants were set ex parte on 22^nd February, 2019 and P.W.1

was examined on that date. After a lapse of three years, on 22^nd

March, 2022, the Defendants filed an application to set aside the

ex parte order dated 22^nd February, 2019 and to accept their

written statement. Learned trial Court although allowed the

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prayer setting aside the ex parte order but refused to accept the

written statement. Hence, this CMP has been filed.

4.

Mr. Mishra, learned counsel for the Defendants-

Petitioners submits that the Defendant No. 6, namely, Tanukanta

Jena, who was looking after the suit on behalf of other

Defendants, fell ill for which the written statement could not be

filed in time. He relies upon the decision in the case of Rajinder

Tiwari –v- Kedar Nath (Deceased) Thr. Lrs. and others,

reported in AIR 2019 SC 1659, wherein the Hon’ble Apex Court

at paragraph-18 has held as under:

“18. It is a settled-law that all the contesting parties to

the suit must get fair opportunity to contest the suit on

merits in accordance with law. A decision rendered by the

Courts in an unsatisfactory conducting of the trial of the

suit is not legally sustainable. It is regardless of the fact

that in whose favour the decision in the trial may go.”

4.1

He also relies upon the decision in the case of Sudhir

Ranjan Patra (Dead) thr. L.Rs. and others –v- Himansu Sekhar

Srichandan and others, reported in AIR 2022 SC 2881, wherein

the Hon’ble Apex Court in the subject matter of dispute stated to

be akin to the present case, remitted the matter back to the

learned trial Court to consider the prayer for acceptance of

written statement of the Defendants. He also relies upon the

decision in the case of Bharat Kalra –v- Raj Kishan Chabra,

reported in 2022 (I) OLR (SC) 1099, wherein the Hon’ble

Supreme Court relying upon the decision in the case of Kailash –

v- Nankhu and others, reported in (2005) 4 SCC 480 has held

that the time limit prescribed for filing of written statement under

Order VIII Rule 1 C.P.C. is not mandatory. In view of the above,

Mr. Mishra, learned counsel for the Defendants-Petitioners

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submits that learned trial Court while setting aside the ex parte

order ought to have accepted the written statement filed by the

Defendants and allowed them to contest the suit.

5.

Mr. Mishra, learned counsel for the Plaintiff-Opposite

Party No.1, on the other hand, vehemently objected to such

submission and contended that there cannot be any iota of doubt

with regard to the law settled by the Hon’ble Apex Court.

However, in the present case, the Defendants were given ample

opportunity to file their writ