PRASANTA KUMAR PATTNAIK Vs. PRAKASH KUMAR PATTNAIK

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS writ application has been filed by the plaintiff -petitioner challenging the order dated 16.8.2011 passed by the learned Civil Judge (Senior Division) First Court, Cuttack in C.M.A. No.606 of 2010 (arising out of C.S. No.20 of 2006) whereby the trial Court has rejected the petitioner's applications under Order 9 Rule 7 of the C.P.C. refusing to set aside the ex -parte order dated 25.11.2010 and also the petitioner's prayer for recalling P.Ws.1, 2 and 3 examined on behalf of the opposite parties for their cross -examination.

(3.) LEARNED counsel for the petitioner submits that the petition for recalling the witnesses for cross -examination and the petition for recalling the order setting the petitioner ex -parte were filed at the stage of hearing when the matter was fixed for argument and that he was set ex -parte on 25.11.2010 and he filed the petition for setting aside the ex -parte order on 24.01.2011, i.e., within two months from the date he was set ex -parte and keeping in view the facts and circumstances of the case, the Court below should not have considered the delay to be fatal. He has relied upon the decisions reported in AIR 1964 SC 993; Arjun Singh v. Mohindra Kumar and others, AIR 2000 SC 2306; State of Bihar and others v. Kameshwar Prasad Singh and another, 108 (2009) CLT 149; Sarat Chandra Nanda v. Puspalata Nanda and 109 (2010) CLT 372; Md. Noorullah Shareef v. Senior Post Master, General Post Office (GPO), urging that no pedantic view is to be taken in the matter of setting aside ex -parte order or ex -parte decree under Order 9 Rule 7 and Order 9 Rule 13 of the C.P.C. for condonation of delay.