DR.A.K.RATH, J. - (1.)This is an application for review of the order dated 17.02.2016 passed by this Court in C.R.P. No.08 of 2012. By the said order, this Court dismissed the petition and confirmed the order of the learned trial court for setting aside the exparte decree.
(2.)One Birendra Kumar Mitra, the predecessor-in-interest of the petitioners, instituted T.S.No.67 of 1985 in the court of the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack for partition of the suit schedule properties. Pursuant to issuance of summons, defendant nos.1, 2, 7 and 8 entered appearance and filed their respective written statements. After death of defendant no.1, his legal heirs, i.e., defendant nos.1(a) to 1(j) filed written statement resisting the claim of the plaintiff. Defendant nos.3 to 5 also filed a joint written statement. Similarly, after death of defendant no.4, defendant nos.4(d) to 4(f) also filed separate written statement resisting the claim of the plaintiff. The suit was decreed exparte on 31.3.2005. Final decree proceeding was initiated on 17.4.2008. While the matter stood thus, defendant nos.1(a) to 1(j), 2, 4(c) to 4(f) and 5 as petitioners filed an application under Order 9 Rule 13 C.P.C. to set aside the exparte decree, which was registered as C.M.A. No.1 of 2007. It was stated that on 12.10.2004 the suit was posted for hearing. Defendant no.1(b) was looking after the case on behalf of other defendants. He fell ill on 22.8.2004. He was suffering from haemiplagia, high blood pressure and rheumatic arthritis with multiple joint pain, for which he could not attend the court. After recovery from illness, he came to the court and knew about the exparte decree. Thereafter he filed an application under Order 9 Rule 13 C.P.C. to set aside the exparte decree. Since there was delay, an application under Sec.5 of the Limitation Act was filed. The plaintiff filed objection contending, inter alia, that the defendant no.1(b) was not ill. He was not suffering from haemiplagia, high blood pressure and rheumatic arthritis with multiple joint pain. The doctor, who issued the prescription, had not treated the defendant no.1(b). There was inordinate delay of 730 days. Both parties led evidence, oral and documentary, to substantiate their cases. Placing reliance on the medical certificate granted by the doctor, Ext.1, learned trial court came to hold that the defendant no.1(b) was suffering from haemiplagia and high blood pressure. Subsequently, he had also suffered from rheumatic arthritics with multiple joint pain and under treatment of the doctor from 22.8.2004 to 12.1.2007. He was advised to take rest. The medical prescription issued by Dr. Budhadev Dey and the lab reports speaks about the illness of the defendant no.1(b) since 2004 to 2009. Held so, it allowed the application.
(3.)Assailing the said order, the plaintiff, petitioners herein, filed C.R.P. No.8 of 2012 before this Court. Placing reliance on the decision of the apex Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, (2013) 12 SCC 649, this Court came to hold that if a person suffers from haemiplagia, blood pressure, it is difficult on his part to move out. The defendant no.1(b) was bed ridden. The defendants have been prevented by sufficient cause in not appearing in the court when the matter was called on for hearing. This Court did not interfere with the impugned order. Since the plaintiffs filed a stamp paper to the tune of Rs.51,500/- for drawal of final decree proceeding, this Court directed the defendants to pay the said amount along with Rs.20,000/- to the plaintiffs.