Pannaga Ketaki vs Gopa Ketaki And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Orders dated 24th April, 2023 and 1st December, 2023 (Annexure-3) passed in C.S. No. 182 of 2021 are under challenge in this CMP, whereby learned Civil Judge (Senior Division), Dharamgarh precluded the Defendant Nos.1 to 3 from filing written statement and also rejected an application to recall the order dated 24th April, 2023 precluding Defendant Nos.1 to 3 from filing written statement.

Mr. Bose, learned counsel being authorized by Mr. Panigrahi, learned counsel for the Petitioner submits that the Defendant No.3-Petitioner is looking after the case on behalf of other Defendants. As he was suffering from viral hepatitis and fever, he could not appear on 24th April, 2023 and file written statement on behalf of Defendant Nos.1 to 3. Accordingly, the Defendant Nos.1 to 3 were precluded from filing written statement on the said date. Subsequently, the Defendant No.3-Petitioner filed an application to recall the order dated 24th April, 2023 and to permit the Defendant Nos.1 to 3 to file written statement, which was rejected vide order dated 1st December, 2023. Hence, this CMP has been filed.

3.1 Mr. Bose, learned counsel further submits that the Defendant No.3-Petitioner was looking after the case on behalf of Defendant Nos.1 and 2, but unfortunately he suffered from viral hepatitis and fever, for which he could not appear on 24th April, 2023. As such, no step could be taken on their behalf and they were precluded from filing written statement vide order dated 24th April, 2023. He, however, submits that since the suit has been filed for declaration of right, title and interest, the Defendant Nos.1 to 3 should be given opportunity to file written statement and contest the suit.

Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the Defendant Nos.1 to 3 were precluded from filing written statement vide order dated 24th April, 2023. On perusal of the said order, it appears that no step was taken on behalf of Defendant Nos.1 to 3 on the said date. However, written statement filed by Defendant No.4 was accepted. After more than three months, the Defendant No.3-Petitioner filed an application to accept the written statement intended to be filed on behalf of Defendant Nos.1 to 3. Said application was rejected on the ground that ample opportunity was given to the Defendant Nos.1 to 3 to file their written statement. Learned trial Court also disbelieved the plea of illness of the Defendant No.3-Petitioner as no medical document in support of his illness was filed.

In course of hearing, Mr. Bose, learned counsel submits that interest of justice will be best served, if the Petitioner files an application for recall of the order dated 1st December, 2023 by filing documents in support of his illness and taking the ground for not filing the written statement earlier.

In view of the above, this Court without expressing any opinion on the merits of the case disposes of this CMP with a direction that in the event the Petitioner files an application to recall the order dated 1st December, 2023 within a period of two weeks hence along with certified copy of this order, the same shall be considered in accordance with law, giving opportunity of hearing to the parties concerned.

Urgent certified copy of this order be granted on proper application.

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