TRINATHA ALIAS TRILOCHAN BEHERA Vs. MIRZA SABIR BEG

JUDGEMENT

(1.) THE petitioner was Defendant No. 1 in Title suit No. 2 of 1994 pending before the Civil Judge (Senior Division), Kamakhyanagar. He has filed this Writ Petition, inter alia, challenging the confirming order of the Courts below rejecting the application filed by him along with Defendant No. 5 under Order 9, Rule 13, CPC to set aside the ex parte judgment and decree passed in Title suit No. 2/94. Admittedly, Title Suit No. 2/94 was decreed ex -parte vide Order dated 19.4.1996. According to the petitioner due to certain inadvertent reasons he could not appear in Court. It is also submitted that some of the defendants had not received notice in the suit. It is also submitted that as number of litigations were pending, the defendant -petitioner was confused and could not take steps. Learned Trial Court disbelieving the story advanced by Defendant No. 1 rejected the petition under Order 9, Rule 13, CPC by Order passed on 19.4.1996 in Misc. Case No. 37 of 1995 and declined to set aside the ex -parte order and decree. The petitioner being aggrieved by the said order approached the District Judge, Dhenkanal in Misc. Appeal No. 13 of 1996. The order of the Trial Court passed under Order 9, Rule 13, CPC was confirmed by the District Judge, Dhenkanal on 25.3.2002 in Misc. Appeal No. 13 of 1996.

(2.) LEARNED Counsel for the petitioner forcefully submitted before this Court that the petitioner should be given an opportunity to contest the lis and as the ex -parte order which prejudices his right be quashed and the petitioner should be permitted to contest the suit. According to the Learned Counsel, the defendants are in possession of the suit land which belongs to the State Government and declaring the right, title and interest of the plaintiff is unjust and illegal.

(3.) HEARD Learned Counsel for the parties and perused the materials available. It appears that the wife, sister and brother -in -law of Defendant No. 1 were Defendant Nos. 2, 3 and 4 respectively in the suit. Defendant Nos. 1 and 5 have filed the petition to set aside the decree. It appears that the summons were duly served on the Defendant Nos. 1 to 5 and were treated to be sufficient. The petitioner submitted that he had received summons. But then, he could not know to which case it relates. It appears, he contacted his lawyer after receiving notice/summons and his lawyer had advised him to appear in Court Learned Trial Court as well as Appellate Court after taking into consideration all the materials arrived at a conclusion that the petitioner knowing fully well that a suit had been filed against him and others failed to appear in Court and contest the same. In Consonance with Order 9, Rule 13, CPC the ex -parte decree cannot be set aside merely on the ground that there has been in irregularity in service of summons if it is satisfied that the defendant had knowledge on the date of heaving and had sufficient time to appear and answer the plaintiffs claim. In the present case as the materials available and the evidence adduced in the proceeding under Order 9, Rule 13, CPC reveal that Defendant No. 1 had. the knowledge about filing of the suit and he had sufficient time to appear and contest the plaintiff's claim. All the defendants are closely related. That apart, the decree was passed in the year 1995. More than nine years have passed in the meanwhile. The opp. party also submits that the defendants have no right, title or interest over the land but they were possessing the same as trespassers.