AMULYA KUMAR BISWAL Vs. BIJAYLAXMI BISWAL

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 5.12.2016 passed by the learned Civil Judge (Jr.Division), Salipur in C.S.No.99 of 2014, whereby and whereunder, learned trial court has rejected the application of the defendant to accept the written statement-cumcounter claim.

(2.) The plaintiff-opposite party instituted the suit for partition. On 11.9.2014 the defendant-petitioner entered appearance and took time to file written statement. Time petition was allowed. Thereafter he took several adjournments to file written statement. Finally by order dated 21.3.2015 he was debarred from filing of the written statement, but allowed to contest the suit. The suit was decreed ex parte on 20.7.2015. Thereafter he filed CMA No.127 of 2015 under Order 9 Rule 13 CPC to set aside the ex parte judgment. On 12.8.2016, ex parte judgment was set aside. While matter stood thus, he filed an application under Order 8 Rule 1 CPC on 28.9.2016 to accept the written statement-cum-counter claim stating that he took several adjournments to file written statement. He was ill from 25.4.2015 to 12.7.2015 and 13.7.2015 to 4.8.2015. The suit was decreed ex parte. After recovery from illness, he filed an application under Order 9 Rule 13 CPC to set aside the ex parte judgment dated 20.7.2015. The same was allowed. There was no latches. Placing reliance on a decision of this Court in the case of State of Orissa and others v. Smt.Sitanjali Jena, 2016 121 CutLT 492, learned trial court held that the defendant can participate in hearing of the suit and cross-examine the plaintiff's witnesses. Held so, it rejected the petition.

(3.) Heard Mr.Arun Kumar Mishra-2, learned counsel for the petitioner and Mr.Damodar Patra, learned counsel for the opposite party.