LAXMIDHAR SAHU Vs. BHASKAR CHANDRA SAHU

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) The Petitioners in this CMP seek to assail the order dtd. 19/10/2023 (Annexure-9) passed by learned District Judge, Bhadrak in F.A.O. No.87 of 2021, whereby allowing the appeal, learned appellate Court set aside the order dtd. 6/11/2021 (Annexure-7) passed by learned Civil Judge, Bhadrak in I.A. No.85 of 2019 (arising out of C.S. No.191 of 2011) dismissing an application under Order IX Rule 9 CPC.

(3.) Mr. Sahoo, learned counsel submits that the Defendants are the Petitioners in this CMP. The suit was filed for permanent injunction and demarcation. The suit was posted to 9/4/2018 for hearing. But, due to absence of Plaintiff-Opposite Party, it was dismissed for default. Subsequently, the Plaintiff-Opposite Party filed an application under Order IX Rule 9 CPC to set aside the order dtd. 9/4/2018 stating that he was undergoing treatment from 5/4/2018 to 30/3/2019. He was also in jail custody from 27/10/2018 to 13/3/2019. Due to the above, the petition under Order IX Rule 9 CPC could not be filed in time. Learned trial Court disbelieving the plea of the Plaintiff-Opposite Party, dismissed the petition under Order IX Rule 9 CPC. It was observed by learned trial Court that the treating physician was not examined by the Plaintiff-Opposite Party. No prescription or medicine bill was submitted along with the medical certificate. It was further observed that there was no seal on the medical certificate filed by the Plaintiff-Opposite Party. Further during cross-examination of the Plaintiff-Opposite Party in the petition under Order IX Rule 9 CPC, he categorically denied to examine the treating physician. It is further observed that no prescription of the jail doctor was also annexed to the petition under Order IX Rule 9 CPC. On the aforesaid observations, the application under Order IX Rule 9 CPC in I.A. No.85 of 2019 was rejected on 6/11/2021 (Annexure-7). Learned appellate Court without discussing the evidence on record and merely observing that learned trial Court rejected the petition on the ground of technicalities, reversed the said order and allowed the appeal and thereby restored the suit. It was observed by learned appellate Court that in order to render substantial justice to the parties and in order to avoid multiplicity of litigation between the parties, the suit should be restored.