KRUSHNA CHANDRA SAHU Vs. MANGA SAHU

JUDGEMENT

(1.) THE petitioner was defendant in T.S.No. 13 of 2000 in the Court of the Civil Judge (JD), Gunupur. The said suit was one for declaration of right, title and interest as well as permanent injunction. Notice of the suit was issued to the defendant and the suit was posted to 27.11.2001 for appearance of the defendant. The defendant -petitioner however having not appeared he was set ex parte. On 26.3.2002 he filed a petition under Order 9, Rule 13 of C.P.C. praying to set aside the ex parte order. The said petition was allowed subject to payment of cost of Rs. 50.00. The cost having not been paid he was once again set ex parte. Thereafter another petition was filed by him under Order 9, Rule 13, CPC with Section 151 of CPC to set aside the ex parte order. The said petition was allowed subject to payment of cost of Rs. 200.00. The defendant -petitioner still failed to deposit the said cost for which he was once again set ex parte on 13.8.2003 and an ex parte decree was passed on 23rd August, 2003. The defendant -petitioner then filed another petition under Order 9, Rule 13 CPC to set aside the ex parte decree which was registered as C.M.A.No. 6 of 2003. The present opposite party who was the plaintiff in the Court below filed objection taking the stand that the defendant -petitioner was all along aware of the proceedings of the suit, but intentionally did not pay the costs awarded with an oblique motive to harass the plaintiff. Thus the discretion granted by the Court having not been availed, the defendant deserved no sympathy.

(2.) THE trial Court after hearing the parties dismissed the CMA. An appeal was thereafter filed by the defendant -petitioner against the order of the trial Court which was registered as FAO No. 1 of 2004. The appellate Court also considered all the facts and circumstances of the case as well as the evidence adduced in the case and came to the conclusion that the order of the trial Court dismissing the CMA under Order 9, Rule 13 CPC was just, proper and should not be interfered with and dismissed the FAO which order of the appellate Court is assailed before this Court.

(3.) I have heard learned counsel for both sides at length and perused the evidence adduced before the trial Court. Fact remains that the petitioner did not avail the opportunity granted to him not once, but twice and his action clearly reveals that he intentionally allowed the suit to proceed ex parte. The Courts below on analysis of the evidence have rightly come to the conclusion that the petitioner deserved no sympathy. But then it appears that the petitioner is a betel shop -keeper. According to Mr. Tripathy the income of the petitioner did not permit him to deposit the cost awarded by the trial Court. But then if the ex parte decree is set aside, that would cause great prejudice to the plaintiff. To maintain equity and in order to avoid miscarriage of justice, this Court feels that the ex parte decree passed in the suit should be set aside and an effectual adjudication should be made subject to payment of Rs. 1,000.00 as cost by the defendant to the plaintiff within three weeks hence which would mitigate the harassment caused to the plaintiff. On such payment, the trial Court will restore the suit and proceed in accordance with law. The W.P.(C) is accordingly disposed of. This judgment be communicated to the Court below at the cost of the petitioner.