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: 15-Mar-2024 17:26:28 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1477 OF 2023 Baliguali Gramya Kotha Parichalana committee, Puri and others …. Petitioners Mr. Amit Prasad Bose, Advocate Saroja Jena and others -versus- …. Opp. Parties Ms. Shradha Das, Advocate Order No. 03. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 14.03.2024 This matter is taken up through hybrid mode. Order dated 6th November, 2023 (Annexure-1) passed in CS No.162 of 2021 is under challenge in this CMP, whereby learned Civil Judge (Senior Division) Puri recalling the order dated 20th December, 2021 setting Defendant Nos.29 to 31ex-parte accepted their written statement. 3. Mr. Bose, learned counsel for the Petitioners submits that the suit has been filed in a representative capacity. On admission of the suit, notices were issued to all the Defendants including Defendant Nos.29 to 31. The notices on the Defendant Nos.29 to 31 returned unserved with a postal endorsement “Addressee absent, returned to sender”. However, paper publication has been made under Order I Rule 8(2) CPC and it has already been held to be sufficient. Thus, the Defendant Nos.29 to 31 (Opposite Party Nos.1 to 3) have sufficient knowledge of pendency of the suit. As such, learned trial Court vide order dated 20th December, 2021 set the Defendant Nos.29 to 31 ex-parte and proceeded with the suit. At present, two witnesses have already been examined on behalf of the Plaintiffs and they have already cross-examined by the contesting Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Mar-2024 17:26:28 // 2 // Defendants. At that stage, an application was filed by the Defendant Nos.29 to 31 to recall the order dated 20th December, 2021 and to accept their written statement. Learned trial Court most erroneously allowed both the prayers. 4. It is further submitted that Defendant Nos.29 to 31 are being represented by same lawyer, who is representing the contesting Defendants. The written statement filed by the Defendant Nos.29 to 31 is in the line of the written statement filed by the contesting Defendants. As such, presence of Defendant Nos.29 to 31 may not be necessary for just adjudication of the suit. He further submits that Defendant Nos.29 to 31 may participate in the proceedings of the suit. But they should not be allowed to propound their own case by filing the written statement when two witnesses have already been examined in the suit. 5. It is also submitted that by allowing the Defendants to file their written statement, the trial has to commence de novo by recalling the witnesses already examined. These aspects were not taken into consideration by learned trial Court while passing the composite impugned order by setting aside the ex-parte order dated 20th December, 2021 and accepting the written statement. 6. Ms. Das, learned counsel for the Opposite Party Nos.1 to 3 (Defendant Nos.29 to 31 before learned trial Court) submits that the impugned order under Annexure-1 is self explanatory and needs no clarification. The notices were issued to the Defendant Nos.29 to 31 in their permanent address and the Postman of Baliguali Post Office made an endorsement that the addressees were absent and it was returned to the sender. But the Defendants are staying in their present address at Matiapada near Nrusingha Temple, Gundicha Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Mar-2024 17:26:28 // 3 // Temple, Puri Town under Kumbharapada Police Station. Thus, learned trial Court, holding that a party should not suffer for the mistake of the Court, recalled the order dated 20th December, 2021 and accepted the written statement. Thus, it has committed no error by providing an opportunity to Defendant Nos.29 to 31 to contest the suit. When a procedural error has been committed by the Court itself, there is no difficulty to rectify the same by regularizing the proceeding of the suit. Only because the witnesses have already been examined on behalf of the Plaintiffs and they might be required to be recalled should not be a ground to deprive the Opposite Party Nos.1 to 3 from contesting the suit. Hence, she submits that no error has been committed by learned trial Court in passing the impugned order under Annexure-1. 7. Upon hearing learned counsel for the parties and on perusal of the record, it appears that the suit has been filed in a representative capacity. Hence, a notice under Order I Rule 8(2) CPC was issued by publication of the notice in local newspaper and it has already been held to be sufficient. It is, however, observed that Defendant Nos.29 to 31(Opposite Party Nos.1 to 3) were made parties in their individual capacity and notice were issued to them by the Court. Thus, publication of notice under order I Rule 8(2) CPC in local newspaper has no bearing on sufficiency of notice on Defendant Nos.29 of 31. 8. It further appears that notices on the Defendant Nos.29 to 31 were sent in their permanent address under Baliguali Post Office. As they are staying at Matiapada near Nrusingha Temple, Gundicha Temple Puri Town, summons issued by the Court could not be served on them. While passing the order dated 20th December, 2021 holding that notices on them to be sufficient, Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Mar-2024 17:26:28 // 4 // learned trial Court overlooked the aforesaid aspects. Thus, when Defendant Nos.29 to 31 appeared through learned counsel and filed an application to afford them an opportunity to contest the suit, the prayer was allowed by setting aside ex-parte order and accepting the written statement. Only because the Defendant Nos.29 to 31 are being represented through the lawyer, who is incidentally the lawyer of the contesting Defendants and they have filed the written statement in the line of the pleadings of the contesting Defendants that could not be a ground to refuse them to contest the suit by filing written statement. Since learned trial Court accepted that the mistake was committed by the Court depriving the Defendant Nos.29 to 31 to contest the suit, it has rightly set aside the ex-parte order dated 20th December, 2021 and accepted the written statement of Opposite Party Nos.1 to 3 (Defendant Nos.29 to 31). 9. As such, I find no infirmity in the impugned order. 10. Accordingly, this 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 4 of 4