BRAMHANANDA MISHRA Vs. JOGEN KUMAR MISHRA

JUDGEMENT

(1.) Plaintiff in Title Suit No. 66 of 1997 of the Court of Civil Judge (Sr. Division), Rourkela has filed this civil revision challenging to the order passed on 9-4-2001 by the Addl District Judge, Rourkela in Civil Misc. Appeal No. 6 of 2000. The sole defendant is the opposite party.

(2.) Plaintiff filed the suit for damages on the allegation that in 1997 when he contested for the post of the President of Rourkela Steel Executive Association, defendant published and circulated defamatory and libellous pamphlets with false and frivolous allegations and as a result of that not only he lost the election but also his reputation was damaged and he suffered humiliation and mental agony. Accordingly he filed the suit claiming for damages of Rs. 99,900/- (rupees ninety nine thousand nine hundred). Defendant entered appearance in that case and applied for adjournments for filing written statement. His last application was rejected on 25-8-1998 and the suit was posted for ex parte hearing. On 19-1-1999 ex parte hearing was taken up and on 9th February, 1999 judgment was delivered decreeing the suit ex parte.

(3.) Defendant filed an application under O. 9, R. 13, C.P.C. registered as Misc. Case No. 16 of 1999, in the Court of Civil Judge (Sr. Division), Rourkela. In that application he advanced the contention that on 28-11-1998 he collected information about the next date from his counsel and was intimated that the suit had been posted to 19-2-1999. Thus, he got the written statement prepared and on 19-2-1999 filed the written statement and it is learnt that on the basis of ex parte hearing of the suit on 19-1-1999 the suit had been decreed on 9-2-1999. Claiming bona fide in his conduct and absence of de- liberate laches, he prayed for setting aside that ex parte decree. Plaintiff, as the oppo- site party, contested that case. Both the par- ties adduced their oral evidence respectively as P.W. No. 1 and O.P.W.No. 1. On assess- ment of such evidence, learned Civil Judge found no bona fide in the conduct of the defendant inasmuch as by 25-8-1998 he had already been set ex parte and the case had been posted to 19-1-1999 for ex parte hear- ing and, therefore, in the absence of the law- yer, who gave him the wrong date, conten- tion of the petitioner that he was intimidated that the suit had been posted to 19-2-1999 for ex parte hearing is not acceptable. Ac- cordingly he rejected the application under O. 9, R. 13, C.P.C. and dismissed the Misc. case.