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Radhamoni Padhiari Vs. Tangudu Jaganatham and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 206 of 1977
Judge
Reported in46(1978)CLT168
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 8, Rule 10 - Order 9, Rule 7
AppellantRadhamoni Padhiari
RespondentTangudu Jaganatham and anr.
Appellant AdvocateAsok Mohanty, Adv.
Respondent AdvocateY.S.R. Murty, Adv.
DispositionRevision allowed
Cases ReferredShiromani Gurdwara Prabandhak Committee. Amritsar v. Raja Shiv Rattan Dev Singh.
Excerpt:
.....of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if there is failure to comply with the direction, this order shall not operate and the ex parte decree shall stand......consideration of a registered sale-deed. several adjournments were taken by the defendant to file written statement and the court had given extension till 1st of feb., 1977, peremptorily for the purpose. an application for further time to file written statement was rejected on 1st of feb., 1977 and the suit was posted to 8-2-1977. on that date, defendant having not taken steps she was set ex parte and the suit was posted to 17-2-1977 for ex parte hearing. on this adjourned date, an application under order 9, rule 7 of the civil p. c. was filed which the learned trial judge has rejected on 2nd march, 1977. before the civil revision was filed in this court, the suit was decreed ex parte on 13-5-1977.3. an objection regarding maintainability of this revision has been raised by mr. murty on.....
Judgment:
ORDER

R.N. Misra, J.

1. This is an application of the defendant No. 1 challenging the order dated 2-3-1977 made by the learned trial Judge rejecting her application under Order 9, Rule 7 of the Civil P. C.

2. Money Suit No. 6 of 1976 was instituted on 20th March, 1976, for recovery of a sum of Rs. 2,500 along with interest on the footing that the defendant No. 1 had undertaken to pay the said amount representing 50% of the consideration of a registered sale-deed. Several adjournments were taken by the defendant to file written statement and the Court had given extension till 1st of Feb., 1977, peremptorily for the purpose. An application for further time to file written statement was rejected on 1st of Feb., 1977 and the suit was posted to 8-2-1977. On that date, defendant having not taken steps she was set ex parte and the suit was posted to 17-2-1977 for ex parte hearing. On this adjourned date, an application under Order 9, Rule 7 of the Civil P. C. was filed which the learned Trial Judge has rejected on 2nd March, 1977. Before the Civil Revision was filed in this Court, the suit was decreed ex parte on 13-5-1977.

3. An objection regarding maintainability of this revision has been raised by Mr. Murty on the footing that the suit itself having already been disposed of, the revision challenging an interlocutory order dated 2nd March, 1977, is not maintainable. Reliance is placed on the decision of the Mysore High Court in the case of T. C. Malleshappa v. Firm of Sha Veer Chand Pratapmal, AIR 1965 Mys 300. According to Mr. Murty the facts of the reported decision are almost similar to the facts of the present case and the decision supports his stand. On the other hand, Mr. Mohanty for the petitioner relying upon the ratio of the Supreme Court decision in the case of Shiromani Gurdwara Prabandhak Committee. Amritsar v. Raja Shiv Rattan Dev Singh. AIR 1955 SC 576 and a couple of Bench decisions of this Court contends that if the impugned order is vacated, on some tenable ground, the subsequent proceedings based upon the impugned order are bound to stand vacated and they cannot stand in the way of petitioner challenging the impugned order.

4. Legal position is settled beyond doubt that even if a defendant does not file a written statement, he is entitled to participate in the proceedings without any written plea. After the defendant in the instant case had been set ex parte, an application had been made to recall the order and to allow her to file a written statement and to participate in the proceeding. On 2nd of March, 1977, when that application was rejected, the trial Court should have made it clear that even if on the facts of the case the !defendant was not being relegated to the position as on 1-2-1977, she was free to participate in the proceeding, cross-examine witnesses of the plaintiff and even lead evidence to meet the evidence led by the adversary. Once the defendant came forward in the case to participate in the proceedings, there was no justification to keep her out and the learned trial Judge would have acted within his discretion in an appropriate way by allowing the defendant to participate in the proceedings on terms of cost.

5. The nature of the suit is such that there may be a fair defence to raise and pit would not be proper to throw out the application on the ground that after the impugned order there has been an ex parte decree which the defendant has not challenged. Adopting the ratio indicated by the Supreme Court, I am inclined to agree with Mr. Murty that the preliminary objection should be overruled.

6. Coming to merits of the matter, Mr. Mohanty has suggested that the application may be allowed on terms of cost. For the reasons already indicated while dealing with the preliminary point, I am prepared to allow the application on condition that within a month from today, the petitioner (defendant No. 1) shall either pay to Mr. Murty in this Court or deposit in the trial Court, cost amounting to rupees two hundred. This amount shall not form part of costs in the litigation. If there is failure to comply with the direction, this order shall not operate and the ex parte decree shall stand. If the cost is deposited or paid as directed, Mr. Mohanty undertakes that the written statement would be filed within a week thereafter. The learned trial Judge will then proceed to dispose of the suit in accordance with law.


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