The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Apr-2024 14:16:44 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1436 OF 2023 Mamata Das and others …. Petitioners Mr. Panchanan Panigrahi, Advocate -versus- The Collector, Keonjhar and others …. Opp. Parties Mr. Amiya Kumar Mishra, Additional Government Advocate Order No. 02. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 02.04.2024 This matter is taken up through hybrid mode. Petitioners in this CMP seek to assail the judgment dated 22nd September, 2023 (Annexure-3) passed by learned Additional District Judge, in FAO No.12/2003 of 2019/2013 whereby dismissing the appeal, learned appellate Court confirmed the order dated 7th February, 2013 (Annexure-2) passed by learned Civil Judge, (Junior division), in CMA No.09 of 2011 (arising out of CS NO.30 of 2006) rejecting an application under order IX Rule 9 CPC. 3. Mr. Panigrahi, learned counsel for the Petitioners submits that the suit was filed for declaration of right, title and interest over the suit property against the State-Opposite Parties as well as for other consequential and ancillary reliefs. The original Plaintiff, namely, Nabadwip Das was suffering from Paralytic attack, for which he was being admitted to the hospital at times. The suit was once dismissed for non-prosecution on 12th March, 2008. By filing an application under Order IX Rule 4 CPC, the suit was restored vide order dated 6th February, 2009. In due course, the suit was posted to 30th June, 2011 for evidence of the Plaintiff. On the said date, an application for Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Apr-2024 14:16:44 // 2 // adjournment was filed and it was allowed subject to payment of cost of Rs.50/-. The suit was thus adjourned to 14th July, 2011 for adducing evidence on behalf of the Plaintiff. Since none appeared on behalf of the Plaintiff on the date fixed for hearing, the suit was dismissed for default. 4. It is submitted that the Petitioner, during the relevant period, was an indoor patient at Sub-Divisional Hospital, Anandapur for his treatment. Thus, he could not have attended the Court to adduce evidence in support of his case. Learned trial Court, without considering the same, dismissed the suit for default. However, CMA No.09 of 2011 was filed under Order IX Rule 9 CPC for restoration of the suit. The Plaintiff had produced relevant records including the medical certificate and documents in support of his treatment of Paralysis. Learned Courts disbelieving the same, disallowed the prayer of the petitioners for restoration of the suit. Hence, this CMP has been filed. 5. It is his submission that due to unavoidable circumstances beyond the control of the Plaintiff, he could not attend the Court to adduce evidence on 14th July, 2011 to which date, the suit was posted for hearing. Documents, filed in support of the illness of the Petitioner, were disbelieved by the Courts. Since the Petitioner claims right, title and interest and other ancillary and consequential reliefs, he should have given an opportunity to contest the suit by allowing the petition under Order IX Rule 9 CPC. Hence, learned counsel for the Petitioners prays for setting aside the impugned order under Annexures 2 and 3 and to restore the suit. 6. Mr. Mishra, learned Additional Government Advocate vehemently objects to the submission of learned counsel for the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Apr-2024 14:16:44 // 3 // Petitioners. It is his submission that although the documents in support of the illness of the Petitioner were filed before learned trial Court, but the same is of no assistance to the Petitioners. The Petitioner had produced Exhibit-1, the medical certificate produced by Dr. A.B. Jena, Assistant Surgeon, Sub-Divisional Hospital, Anandapur, which revealed that the Petitioner was admitted as an indoor patient prior to seven/eight days of the hearing of the suit. But no document was filed to show when the Petitioner was, in fact, discharged from the said hospital. The Petitioner also produced the OPD Certificate No.5993 dated 8th September, 2010. The same is of no assistance to the Petitioner as the suit was dismissed much after, i.e. 14th July, 2011. There is nothing on record to show that the Petitioner was in fact unable to attend the Court on the date of hearing of the suit. Mr. Mishra, learned Additional Government Advocate also drew attention of this Court to few observations in the impugned order under Annexure-3 passed by learned Appellate Court and submitted that learned trial Court and learned Appellate Court by assessing the evidence, disbelieved the case of the Petitioner. Hence, the same should not be interfered with only because a different view may be possible by reassessing the evidence available on record. He, therefore, prays for dismissal of the CMP. 7. Taking note of the submission made by learned counsel for the parties and on perusal of the record, it appears that the suit was dismissed for non-prosecution on 12th March, 2008 and it was restored to file by filing an application under Order IX Rule 4 CPC. In due course, the suit was posted to 30th June, 2011 for adducing evidence on behalf of the Plaintiff. An application was filed on that date by the Plaintiff for adjournment of the suit, which was allowed subject of payment of cost of Rs.50/- and the suit was posted to 14th July, 2011 for Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Apr-2024 14:16:44 // 4 // adducing evidence on behalf of the Plaintiff. Since none appeared on behalf of the Plaintiff on the adjourned date of hearing, the suit was dismissed for default. In support of his case of the Plaintiff, examined the witnesses and produced the documents in support of his case. Exhibit-1 is a medical certificate issued by the Dr. A.B. Jena, Assistant Surgeon, Sub-Divisional Hospital, Anandapur. The said document shows that the Petitioner was treated as an OPD patient vide OPD Registration No.5993 dated 8th September, 2010. The same is of no help to the Petitioner as it was issued much prior to the date when the suit was dismissed for non-prosecution. Seven to eight days prior to the date of hearing, i.e., on 14th July, 2011, the Plaintiff-Petitioner was admitted as indoor patient in the Sub-Divisional Hospital, Anandapur. But no document is available to show that when he was discharged from the hospital. There is also no martial available on record to show that the Petitioner was bed ridden and not in a position to attend the Court of adduce evidence on 14th July, 2011. Although, the Petitioner alleged that he was undergoing treatment at Neuro-Surgery Department at SCB Medical College & Hospital, Cuttack, no document to that effect was filed. 8. Learned trial Court as well as appellate Court taking into consideration the materials available on record and discussing the same in detail held that no sufficient ground has been made out by the Petitioner for his non-appearance on the date of hearing of the suit, i.e., 14th July, 2011. 9. Since on assessment of the evidence, learned Courts have arrived at a conclusion that the Petitioner had not made out any sufficient cause for non-appearance on the date of hearing, I am not inclined to interfere with the impugned order under Annexures 2 and 3. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Apr-2024 14:16:44 // 5 // 10. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 5 of 5