LOKANATH SAHOO Vs. THURI BEWA

JUDGEMENT

(1.) THE respondent as plaintiff filed T.S.No.566 of 1996 for partition in the Court of the learned Civil Judge (SD), 1st Court, Cuttack. Notice of the said suit was duly served on the present appellant who was the defendant. He did not appear nor did contest the suit and consequently he was set ex parte. Ultimately the suit was decreed ex parte on 22.9.1999. In the year 2003 a petition was filed by the appellant under Order 9, Rule 13 CPC, registered as CMA No.439 of 2003, with a prayer to set aside the ex parte decree and restore the suit to file. According to the appellant he had no knowledge about the ex parte decree and only after receiving notice to appear in the final decree proceeding he came to know that ex parte judgment had been passed and filed the aforesaid petition for setting aside the ex parte decree. He further averred that after receiving summons in the suit he had met the plaintiff -respondent who assured him that the matter would be , settled amicably out of Court. In view of such assurance of the plaintiff -respondent he did not take any steps in the suit but then the plaintiff -respondent did not keep her words and proceeded with the suit in a camouflage way obtained the ex parte decree. He has further averred with regard to wrong advice of his counsel In short, according to defendant -appellant, his non -appearance in the suit was not intentional or deliberate but due to sufficient cause.

(2.) THE averments of the appellant are strongly resisted by the plaintiff -respondent mainly on the ground that the CMA was grossly barred by time and that the defendant -appellant being well aware of the suit, having received summons, deliberately allowed the suit to proceed ex parte with an avowed oblique motive of harassing her. The plea of the defendant -appellant that he had met her and both of them had agreed for an amicable settlement of the dispute out of Court was stoutly denied.

(3.) ADMITTEDLY the suit was filed in the year 1996. Summons had been duly served on the defendant -appellant, but as he did not appear in Court he was set ex parte. The suit was posted, to 12.10.1998 for ex parte hearing. Thereafter the suit was adjourned to several dates and finally on 7.9.1999 ex parte hearing was taken up and the suit was decreed ex parte on 22.9.1999. The aforesaid CMA was filed with a prayer to set aside the ex parte decree after a lapse of four years, i.e. in the year 2003. The explanation for the delay in filing the CMA was that the defendant -appellant had no knowledge about the ex parte decree and only after receiving summons in the final decree proceeding he came to know about that and thereafter he filed the CMA. In his evidence before the Court below the defendant -appellant admitted that he had received summons in the suit but did not appear in Court as the plaintiff told him to amicably settle the matter out of Court. No specific date on which such assurance was given by the plaintiff is forthcoming. No other witness has been examined to substantiate such plea. The trial Court after discussing the entire facts and circumstances and the evidence in extenso arrived at the conclusion that there was no reason much less any sufficient reason much less any sufficient reason which prevented the defendant -appellant from contesting the suit. This finding of the Court below is assailed by the learned counsel for the appellant on the ground that the defendant -appellant all along believed in the assurance of the plaintiff -respondent that the dispute would be decided amicably among them out of Court for which he neither appeared in Court nor did take any steps.