SUBALA CHARAN ROUT Vs. PRAFULLA KUMARI DEI

JUDGEMENT

(1.) The petitioner is the defendant No. 1 in T.S. No.165 of 1983 of the Subordinate Judge, Second Court, Cuttack, the suit being for partition. The present O.P. No. 1 was the plaintiff and O. Ps. 2 to 5 were defendants Nos. 2 to 5 who are the mother and sisters of the Defendant No. 1. The petitioner after due service of summons did not appear and was set ex parte on 12-12-83 due to non-appearance.

(2.) Other defendants contested the suit by filing written statement. Plaintiff examined all his witnesses and the Defendants examined only D. W. 1 when Defendant No. 1, the present petitioner had appeared in the suit and filed a petition on 12-12-1985 stating that he had not received any summons or notice of the suit but having heard subsequently that the suit had been filed against him he came to know after query that there was wrong report of the process-server that he had refused to accept the summons wherein, in fact, the plaintiff had managed to suppress the summons gaining over the process-server. The petition does not show under which provision this petition was filed but from the recitals in the prayer portion of the petition of Defendant No. 1 this can be treated as an application under Order 9 Rule 7, CPC. The Trial Court also rightly treated the petition as one under Order 9 Rule 7, CPC and after hearing the parties passed order dated 16-1-86 refusing the prayer of defendant No. 1 for setting aside the ex parte order passed against him, but allowed him to participate in the proceeding from that stage. The Court further allowed Defendant No. 1 to file his written-statement subject to payment of Rs. 75/- as cost and in pursuance of the said order the written statement was filed by Defendant No. 1 which has been accepted.

(3.) Later on the Defendant No. 1 had filed a petition under Order 18 Rule 2(4), CPC read with Section 151 of the same with a prayer to allow him to examine his witnesses in the suit. Plaintiffs had objected to this petition on the ground that by order Dt.16-1-86 Defendant No. 1 was allowed to participate in the proceeding from the stage at which he had appeared and could not be allowed to set the hand of the clock back. It was further objected by him that the defendant No. 1 had appeared in the suit and was allowed to file written statement when the defendants Nos. 2 to 5 had already started to lead their evidence and one of their witnesses had already been examined. Besides on the basis of the averments in the written statement defendant No. 1, which was subsequently filed to the effect that the two sale deeds executed and registered by him in favour of the plaintiffs were benami transactions, no issues had been framed on such disputed facts. There was no justification therefore for the defendant No. 1 to be allowed to examine his witnesses in the suit. Learned Subordinate Judge vide his order dated 18-3-86 held that it was not a fit case where defendant No. 1 should be allowed to examine his witnesses for the just cause of the case. Accordingly he rejected the petition of defendant No. 1 against which order, the present Civil Revision has been preferred.