MD ALAM KHAN Vs. JOGENDRA PATRO

JUDGEMENT

(1.) THIS Writ Application is directed against the order dated 25.6.2004 passed by the Learned Civil Judge (Senior Division), Berhampur in M.J.C. No. 109 of 1999 rejecting the application under the Order 9, Rule 13 of the CPC as well as the judgment and Order dated 12.8.2004 passed by the Learned District Judge, Ganjam in FAO No. 80 of 2004 confirming the order passed by the Learned Civil Judge.

(2.) THE petitioners were defendants in T. S. No. 47 of 1991 and opposite parties 1 to 5 were the plaintiffs. The suit had been filed for eviction of defendants -petitioners from the suit premises and for other consequential reliefs. The suit was posted for hearing on 26.2.1999 and on that date both parties prayed for adjournment. The prayer for adjournment was rejected by the Court and the parties were directed to get ready for hearing. When the suit was taken up for hearing learned Advocate appearing for the plaintiffs -opposite parties filed hazira, but the Learned Advocate appearing for the defendants -petitioners filed memo of no instruction, as a result of which the defendants were set exparte on the said date. Thereafter the suit was posted to 16.3.1999 for exparte hearing. However, the ex parte hearing was taken up on 24.6.1999 and an exparte decree was passed on 27.7.1999. The petitioners filed an application under Order 9, Rule 13, CPC on 10.8.1999 to set aside the ex parte decree and the said application was registered as M.J.C. No. 109 of 1999.

(3.) SHRI Routray, Learned Counsel appearing for the petitioners submitted that the defendants -petitioners were set ex parte on 26.2.1999 and the ex parte hearing took place on 24.6.1999. The application had been filed not only under Order 9, Rule 13, CPC but also under Section 151 of the CPC and therefore if the Appellate Court was of the view that the application under Order 9, Rule 13 was not a properly constituted application the Court could have exercised inherent jurisdiction under Section 151 of the CPC to set aside the order dated 26.2.1999. It was further contended that on 26.2.1999 the petitioner No. 1 who was looking after the case remained absent due to his illness and prayer for adjournment having been refused by the Trial Court Learned Counsel appearing for the defendants -petitioners without any instruction submitted a memo of no instruction. Under such circumstances it was duty of the Court to issue notice to the present petitioners for engagement of some other advocate and having received no instruction from the advocate the petitioners remained in dark about ex parte decree. Learned Counsel on the basis of the above argument submitted that the orders passed by the Courts below should be set aside.