The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 792 OF 2024 Oopalee Operajita …. Petitioner Mr. Tusar Kumar Mishra, Advocate Prajna Paramita and others …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No. 2. 1. 2.
Decision
ORDER 31.07.2024 This matter is taken up through hybrid mode. Order dated 18th May, 2024 (Annexure-4) passed in C.S. No. 1419 of 2022 is under challenge in this CMP, whereby learned 1st Addl. Civil Judge (Senior Division), Bhubaneswar rejected an application filed by the Defendant No.1-Petitioner to set aside the ex parte order dated 18th December, 2022 and accept her written statement. 3. Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed by the Opposite Party No.1 for partition. The property is a leasehold property, which stood recorded in the name of late Bidhubhusan Das. The property in question is not partiable. However, the Petitioner on receipt of the summons entered appearance on 19th July, 2022, but failed to file her written statement within the stipulated time as she being an Odishi dance exponent was travelling out of the State and Country on several occasions. When the matter was posted for recording of the evidence of P.W.1, an application was filed for adjournment to file written statement, but the same was refused and she was set ex parte vide order dated 18th December, 2022. Page 1 of 4 Since the suit has been filed for partition and the Petitioner has objection to such partition, she should be given an opportunity to file written statement and contest the suit. Accordingly, an application was filed for setting aside the ex parte order and to allow the Petitioner to file written statement and contest the suit. Learned trial Court although set aside the ex parte order permitting the Petitioner to participate in the hearing of the suit, but did not permit her to file written statement. Hence, this CMP has been filed. 4. This Court vide order dated 29th July, 2024 taking into consideration the facts and circumstances of the case as well as conduct of the Petitioner directed learned counsel for the Petitioner to take instruction as to whether the Petitioner is prepared to deposit a sum of Rs.5.00 lakh as security to consider her case. Mr. Mishra, learned counsel, on instruction, submits that the Petitioner is not capable of depositing the aforesaid amount. Hence, this Court proceeds to dispose of the matter on merit. 5. On perusal of the materials on record, it appears that the Petitioner entered appearance on 19th July, 2022. Thereafter, she took several adjournments to file written statement. When the matter was posted to 3rd September, 2022, the Defendant No.1- Petitioner filed an application for adjournment to file written statement. But, thereafter, she filed several applications and each time the petition for adjournment was rejected on the ground that statutory period to file written statement had already elapsed. As it appears, the Defendant No.1-Petitioner did not take any step to file written statement. On 18th December, 2022, Page 2 of 4 when the matter was posted for examination of P.W.1, learned counsel for Defendant No.1 was present in Court and filed an application for time to file written statement. But the said application was rejected and thereafter, the Defendant No.1 did not participate in the proceeding of the suit and did not choose to cross-examine the witnesses. As such, she was set ex parte on 18th December, 2022, i.e. the date on which trial of the suit commenced. It is only on 10th January, 2024, when the suit was posted for further evidence on behalf of the Plaintiff, the aforesaid application was filed for setting aside the ex parte order and to accept the written statement. In the case of Arjun Singh –v- Mohindra Kumar, reported in 1964 SC 993, the Hon’ble Supreme Court has held that even if ex parte order is set aside after commencement of the trial, party cannot be relegated to the position before commencement of the trial and be permitted to file written statement. Thus, learned trial Court has committed no error in not permitting the Petitioner to file written statement as on the date she was set ex parte, trial of the suit commenced. No reasonable ground has been shown to accept the written statement after commencement of the trial. 6. Mr. Mishra, learned counsel for the Petitioner also relies upon the case of Kailash –v- Nanhku and others, reported in (2005) 4 SCC 480 and submits that the period for filing of the written statement is not mandatory and the same is directory in nature. Thus, there was no difficulty on the part of learned trial Court to accept the written statement. In the case of Kailash (supra), the Hon’ble Supreme Court has categorically held that written statement cannot be accepted after the statutory period as Page 3 of 4 the matter of routine and on mere asking for it. Party seeking to file written statement has to make out an exceptional case for acceptance of the written statement satisfying the Court that the circumstances were beyond his control for not filing the written statement within the statutory period. In the instant case, mere averments in the petition under Annexure-2 has been made that the Petitioner had been to Delhi on 18th December, 2022 to perform Odishi Classical Dance, the same cannot be an exceptional case not to file written statement within the statutory period. It is apparent from the record that the Petitioner has not participated in the proceeding of the suit by filing written statement within the statutory period. Thus, the ratio decided in the case of Kailash (supra) is of no assistance to the case of the Petitioner. The suit is for partition and it is at the stage of recording of the evidence on behalf of the Plaintiff. Thus, I find no infirmity in the impugned order under Annexure-4. 7. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Aug-2024 12:24:23 Page 4 of 4