The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.51 of 2019 Nibedita Biswal & Others …. ..… Appellants Mr. S. Satapathy, Adv. on behalf of Mr. B.K. Nayak, Adv. -Versus- Saroj Kumar Samal & Anr. .……... Respondents Mr. P.K. Muduli, Adv. CORAM: JUSTICE S. TALAPATRA JUSTICE SAVITRI RATHO ORDER 25.01.2023 Order No. 13. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2.
Legal Reasoning
Having considered the causes those were assigned in the said application for explaining the delay, it was held that the said CMA No.2 of 2018 was not at all maintainable, in view of the fact, as reflected in the order dated 20.11.2018, that the appellant had filed an appeal under Section 19(1) of the Family Courts Act, 1984 being MATA No.99 of 2018 in this court urging to set aside the Judgment dated 22.08.2017 as delivered by the Judge, Family Court, Koraput. The Judge, Family Court held that the CMA No.02 of 2018 was not maintainable as that appeal was pending before this court, as the parallel proceedings on the same issue in different fora, are not tenable. Accordingly, the Judge, Family Court rejected the CMA No.2 of 2018 by the order dated 20.11.2018. The said order was challenged by filing a writ petition being WP(C) No.7188 of 2019. It is not in dispute that when the writ petition was filed, the husband of the appellant was no more. We have found that the husband of the appellant died on 03.05.2018 and as such, the dead was represented by his mother, Laxmi Priya Samal, but without leave of this Court. 8. This Court on the prayer of the petitioner, the appellant herein, allowed withdrawal of WP(C) No.7188 of 2019 with liberty to file an appeal. Accordingly, as it appears, this appeal has been filed. 4 9. Mr. Satapathy, learned counsel has submitted that the appeal had been filed by the appellant herein, being MATA No.99 of 2018 challenging the order dated 22.08.2017. As the said appeal was not filed within limitation, another application was filed under Section 5 of the Limitation Act being I.A. No.91 of 2018. On 13.12.2018, the said application for condonation of delay being I.A. No.91 of 2018 was rejected. As consequence thereof, the appeal being MATA No.99 of 2018 was also dismissed. 10. According to Mr. Muduli, learned counsel, on 15.04.2019, the said writ petition was withdrawn with liberty to file an appeal. Acting on leave as granted, this appeal has been filed challenging the order dated 20.11.2018 in CMA No.02/2018, passed by the Judge, Family Court, Jeypore in the proceeding under Order 9, Rule 13 of the CPC. For purpose of reference, we may reproduce the prayer that has been made in this appeal: “It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the appeal, call for the LCR and after hearing the parties, set aside the impugned order dated 20.11.2018 passed in CMA No.2/2018 by the learned Judge, Family Court, Jeypore with a direction to decide CMA No.2/2018 on merit” 5 11. It appears that the original order dated 22.08.2017 which was passed ex-parte, was earlier challenged in the said MATA No.99 of 2018 and that appeal, being barred by limitation, was dismissed. 12. The appellant has filed this appeal against the order dated 20.11.2018 passed in CMA No.21 of 2018 which has been instituted by the appellant for setting aside the ex-parte order dated 22.08.2017, the order that was challenged in MATA No.99 of 2018. The challenge against the order dated 22.8.2017 has been discarded being barred by limitation and the appeal, as consequence thereof, was dismissed. 12. The solitary question that emerges in the context of this case is that whether the appellant can challenge the order dated 22.08.2017 in as much as, the order was earlier challenged in the appeal being MATA No.99 of 2018. The said appeal was dismissed, being barred by limitation. Whether there is any scope left to exercise the jurisdiction under Order 9 Rule 13 of the CPC, when the appeal challenging the ex-parte order has been dismissed and the order of dismissal having been not challenged has reached its finality. 13. Two options are available to the defendant/Opposite Party against whom an ex-parte Judgment/decree has been passed. Those are viz. (1) an appeal under Section 96(2) of the CPC and (2) an application under Order 9 Rule 13 for setting aside the ex-parte decree against the defendant. 6 14. The pertinent question therefore, is whether a person can be allowed to exercise both the options. 15. It is well-settled that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or revised by the Supreme Court. The other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to consideration of fair play and justice. It has been held by the Apex Court in Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another: (1999) 5 SCC 590 as follows: “31. Law on res judicata and estoppel is well understood in India and there are sample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation.” 16. It has been clearly laid down in Bhanu Kumar Jain Vs. Archana Kumar & Anr. (2005) 1 SCC 787 as under: “When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex- parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, 7 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to the said provision does not suggest that the converse is also true.” 17. The order dated 22.08.2017 is final and it has merged with the order dated 13.12.2018 as aforenoted. 18. Since, the appeal being MATA No.99 of 2018 was dismissed by this court, and the said order was not challenged, now this court cannot exercise any jurisdiction, except the review jurisdiction but there is no such review petition before us. It is a fact beyond dispute that no action was taken further from the order dated 13.12.2018 by which MATA No.99 of 2018 was dismissed being barred by law. Therefore, the said order has reached its finality. 19. One strange fact that we have come across from the records is that the appellant became active only after the death of her husband. Therefore, her husband cannot get any opportunity to contest the appeal. Since the option of filing the appeal had been earlier exercised 8 by the appellant and the said appeal had been dismissed. This appeal is barred by constructive res judicata. 20.
Arguments
Heard Mr. S. Satapathy, learned counsel appearing on instruction of Mr. B.K. Nayak, learned counsel for the appellant and also heard Mr. P.K. Muduli, learned counsel appearing for the respondent. 3. The appellant herein was the Opposite Party in the matrimonial suit being C.P. No.20 of 2017 which was instituted by her husband namely, Mr. Saroj Kumar Samal (since deceased). 2 4. It has been reflected in the Judgment dated 22.08.2017, as delivered by the Judge, Family Court, Jeypore in C.P. No. 20 of 2017, that for absence of the respondent, no conciliation proceeding could be taken up. After receipt of the summon from the court, the appellant as per the finding of the Judge, Family Court, chose not to contest the case and accordingly, the proceeding was declared ex-parte. 5. By the said Judgment dated 22.08.2017, the Judge, Family Court found substantive evidentiary materials for dissolution of marriage and accordingly, the marriage that was subsisting between the appellant and her deceased husband was declared dissolved and pursuant thereto, a decree of divorce was passed. For a long time, the said Judgment was not put to any challenge. 6. On 21.06.2018, the appellant filed one application under Order 9, Rule 13 of the CPC for setting aside the ex-parte decree and restoring the matrimonial suit to its original file. But since there was inordinate delay, the appellant had filed an application under Section 5 of the Limitation Act to condone the said delay that had occurred in filling the said application. It was stated in the said application for condonation of delay that the appellant was not aware that an ex-parte order had been passed on 22.08.2017 in CP No.20 of 2017. According to her, the knowledge was gathered on 14.05.2018. After receiving the 3 certified copy of the order and other documents filed by the petitioner, the application for setting aside the ex-parte order was filed. 7.
Decision
Accordingly, we dismiss this appeal. 21. Interlocutory applications, if pending, are disposed of. (S. Talapatra) Judge (Savitri Ratho) Rati Ranjan Judge