NABARATNA KHAMARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE claimant in a Land Acquisition proceeding is the Petitioner, the reference under Section 18 of the Land Acquisition Act having been dismissed by the Subordinate Judge for default and an application against the same under Order 9, Rule 9 , Code of Civil Procedure, having been rejected by order dated 14 -5 -1980.

(2.) LAND Acquisition Misc. Case No. 124 of 1978 was posted to 31 -8 -1979 for hearing and the claimant could not appear on that date on account of the fact that he was suffering from diarrhoea. The learned Subordinate Judge dismissed the said reference for default of the claimant. Thereafter an application under Order 9, Rule 9, Code of Civil Procedure was filed before the Subordinate Judge. The learned Subordinate Judge did not accept the plea of illness of the claimant and dismissed the said application.

(3.) ON the merits of the case, it is contended by Mr. Misra that the Subordinate Judge had no jurisdiction to dismiss the reference under Section 18 of the Act for default of the claimant and for this proposition, the learned Counsel places reliance on the decision of this Court in Gopal Charan Sahu's case, 1976 (1) C.W.R. 1 (supra). There is divergence of views on this point. The High Courts of Gujarat and Himachal Pradesh have taken the view that the reference under Section 18 of the Land Acquisition Act can be dismissed for default and in that event Order 9 of the Code of Civil Procedure would apply, whereas the High Courts of Madhya Pradesh and Patna have taken the view that the Subordinate Judge would have no jurisdiction to dismiss a reference on the ground of default on the claimant. This Court in the aforesaid decision, referred to supra, has preferred to accept the view taken by the High Courts of Madhya Pradesh and Patna. It has been held by the learned Judge