BHAGIRATHI PATRA Vs. SOVARANI DEB

JUDGEMENT

(1.) THIS writ petition has been filed against the order dated 11.3.2011 passed in F.A.O. No. 108 of 2009 by the learned District Judge, Balasore -Bhadrak, at Balasore. By the said order, the learned District Judge confirmed the order dated 24.10.2009 passed in CMA No. 651 of 2005 arising out of T.S. No. 74/02 -I by the learned Civil Judge (Senior Division), Balasore. The trial court by the said order rejected the petition filed under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex parte decree.

(2.) FACTS reveal that the opposite parties 1 and 2 as plaintiffs filed C.S. No. 74 of 2002 -I in the court of learned Civil Judge (Senior Division), Balasore for declaration of sale deed Nos. 3757 and 3758 dated 20.11.2011 as forged, void and inoperative and thereby to declare the right, title and interest of the plaintiffs over the suit properties by confirming their possession as well as for recovery of possession in the event they are found dispossessed.

(3.) IN such view of the matter, after hearing learned counsel for the parties, this Court is of the opinion that the matter should be remitted back to the trial court for rehearing of CMA No. 651 of 2005 arising out of T.S. No. 74 of 2002 -I by giving an opportunity to the petitioner to adduce further evidence in support of his illness by examining the concerned Doctor under whom he alleges to have been treated. The opposite parties shall also be afforded with an opportunity to cross -examine the said Doctor and they shall also be at liberty to adduce further evidence on their behalf, if they so choose. The CMA being of the year 2005, parties are directed to appear before the learned Civil Judge (Senior Division), Balasore on 19.2.2014 and produce a certified copy of this order before him, who shall thereupon proceed to hear the matter so as to dispose of the CMA No. 651 of 2005 by the end of July, 2014. In the event the petitioner is unable to produce the Doctor, the opposite parties shall not be permitted to adduce any further evidence by the trial court while disposing of the matter afresh by assigning reasons.