Skip to content


Surendra Mohapatra Vs. Annapurna Mohapatra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 60 of 1968
Judge
Reported inAIR1969Ori261; 35(1969)CLT474
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 7
AppellantSurendra Mohapatra
RespondentAnnapurna Mohapatra
Appellant AdvocateB.K. Ray, ;B.H. Mohanty and ;P.N. Patnaik, Advs.
Respondent AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Cases ReferredArjun Singh v. Mohindra Kumar. The Lahore
Excerpt:
.....are not good law]. - madan lal, which is no longer good law. the contention is well founded. it is well settled that defendant no. the lahore case is not good law in view of the aforesaid supreme court decision......and the case was adjourned to 22-2-67. the case was heard on behalf of the plaintiff and the ex parte decree was passed on 7-3-67, defendant no. 1 filed an application under order 9, rule 13 c. p. c. for setting aside the ex parte decree on theground that he was lying ill from 2-2-67 to 14-3-67. the learned court below accepted the version of defendant no. 1 that he was ill during that period and that there was sufficient cause for his absence on 22-2-67 and 7-3-67. he however dismissed the application under order 9, rule 13 c. p. c. on the view that the ex parte order passed on 4-1-67 and 27-1-67 stood in the way of the defence contention, and that as there was no prayer for setting aside those ex parte orders the ex parte decree cannot be set aside.2. mr. ray contends that the.....
Judgment:

G.K. Misra, J.

1. The respondent (plaintiff) is the wife of the appellant (defendant No. 1). In T. S. No. 38 of 1966 defendant No. 1 did not file written statement and the suit was set ex parte against him. The case was posted to 27-1-67 for ex parte hearing. The plaintiff took time on that day and the case was adjourned to 22-2-67. The case was heard on behalf of the plaintiff and the ex parte decree was passed on 7-3-67, Defendant No. 1 filed an application under Order 9, Rule 13 C. P. C. for setting aside the ex parte decree on theground that he was lying ill from 2-2-67 to 14-3-67. The learned Court below accepted the version of defendant No. 1 that he was ill during that period and that there was sufficient cause for his absence on 22-2-67 and 7-3-67. He however dismissed the application under Order 9, Rule 13 C. P. C. on the view that the ex parte order passed on 4-1-67 and 27-1-67 stood in the way of the defence contention, and that as there was no prayer for setting aside those ex parte orders the ex parte decree cannot be set aside.

2. Mr. Ray contends that the learned Judge acted contrary to law in placing reliance on AIR 1950 Lah 43, Krishan Lal v. Madan Lal, which is no longer good law. The contention is well founded. It is well settled that defendant No. 1 could not have the ex parte order passed on 4-1-67 set aside without making out a case for it. Defendant No. 1 did not present any case that he was ill on 4-1-67 and 27-1-67. Accordingly defendant No. 1 is precluded from filing written statement which was to be filed on 4-1-67. If, however, he shows sufficient cause for his absence on 22-2-67 when the plaintiff's suit was heard ex parte, the ex parte decree can be set aside in an application under Order 9, Rule 13 C. P. C. and the case after restoration would start from the stage where it was on 22-2-67. Defendant No. 1 can cross-examine the witnesses of the plaintiff and can give evidence on his own behalf. This view is concluded by AIR 1964 SC 993, Arjun Singh v. Mohindra Kumar. The Lahore case is not good law in view of the aforesaid Supreme Court decision.

3. In the result, the ex parte decree passed on 7-3-67 is set aside and the suit is restored for trial. Defendant No. 1 is debarred from filing written statement. The learned Subordinate Judge would fix a date of hearing when both the parties will be given full opportunity to give such evidence as they desire. The case is restored back to the stage at which it was on 22-2-67. Defendant No. 1 is to pay a consolidated cost of Rupees 200/- to the plaintiff within six weeks from today, failing which the appeal would stand dismissed without further reference to Bench. If costs are paid, the suit would be restored to file as indicated above.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //