Gagan Jena and Others Vs Rama Chandra Parida and ors - Citation 1084487 - Court Judgment

Judgment:

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. 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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. 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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. 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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and</p><p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.</p><p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.</p><p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.</p><p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.</p><p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.</p><p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.</p><p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.</p><p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9',
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	(int) 0 => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C). No.26106 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------Gagan Jena and others …… Petitioners -VersusRama Chandra Parida and others For Petitioners …… Opp. parties : M/s. S.P.Mishra, Sr. Advocate, S.K.Mohanty, A.P. Mishra, S.K. Samantaray, A.K. Dash & J.K. Mahapatra. For opp. parties : M/s. Mahadev Mishra, Mamata Mishra & G.C. Bhuyan. (for O.P. 4 ) Mr. G.C. Swain (for O.Ps 2,3,4,6,7 and',
	(int) 1 => '<p>8) ----------------------Decided on 24.07.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the 2 ex parte decree passed in T.S. No.96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.',
	(int) 2 => '<p>2. To appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows: The opp. party No.1 as plaintiff filed Title Suit before the learned Civil Judge (Senior Division), Jajpur registered as T.S. No.96 of 1997 impleading the present petitioners as defendants 4 and 5 and the proforma opp. parties 2 and 4 to 7 as defendants 1, 3 and 6 to 8 and the husband and the father of the present proforma opp. parties 3 and 8, i.e., one Charan Jena S/O. Bhagabat Jena as defendant No.3 seeking decree of declaration of title and permanent injunction over the suit schedule properties.',
	(int) 3 => '<p>3. Initially, the opp. party No.1 had filed T.S. No.190 of 1990 before the learned Civil Judge (Junior Division) Jajpur against the petitioners and proforma opp. parties. There was some settlement in the said suit out of court for which the opp. party No.1 was to withdraw the suit. It is the case of the petitioners that believing in good faith, the petitioners did No.proceed with the suit as the matter was compromised outside the court. However, the opp. party No.1 instead of withdrawing the suit, proceeded with the suit and amended it by converting it to a suit for declaration of title along with a prayer for 3 permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn and again filed before the learned Civil Judge (Senior Division), Jajpur which was registered as T.S. No.96 of 1997. It further appears from the facts of the case that the petitioners also filed T.S. No.268 of 2002 against the present opp. party No.1 as defendant No.1 and the petitioner No.1 was looking after that suit on behalf of the petitioner no.2. T.S. No.96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte order dated 5.5.2000 passed against the petitioners and the proforma opp. parties, who were defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No.236 of 2005 along with an application under section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back.',
	(int) 4 => '<p>4. An objection was filed to the said Misc. Case by the opp. party No.1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did No.contest the suit and their 4 claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, canNo.find the defendant, who is absent from his residence and there is no likelihood of 5 his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, No.any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.',
	(int) 5 => '<p>5. In the instant case, the petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal and affixture. The endorsement given by the Process Server discloses that summon was offered to the defendant no.4 i.e., the petitioner No.1 who refused to receive the summons. A petition was filed by the defendants 4 and 5, who are the petitioners before this Court and it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The learned trial court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607.wherein it was held 6 that after court records an order, it is incumbent on the applicant to examine the Process Server and to get a statement from him that summons were never offered to them and further found that it was seen that defendant No.4 (petitioner no.1) in the facts of the case can be held to be an adult member of a family being the brother of defendant no.5 (petitioner no.2), who came to kNo.from the Lawyer engaged in T.S. No.268 of 2002 on their behalf where they are plaintiffs that a written statement has been filed in the said suit by the opp. party No.1 herein disclosing that T.S. No.96 of 1997 has been decreed ex parte and this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time and such delay has No.been explained by the petitioners.',
	(int) 6 => '<p>6. On the above ground, the learned Civil Judge (Senior Division) dismissed the application against which the petitioners carried Misc. Appeal No.35 of 2007 which was disposed of by the learned Additional District Judge, Jajpur by his order dated 23.7.2011. The learned appellate court went further to examine the law on the point and dealing with the contentions of the petitioners that it was for the opp. party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where 7 this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the court that the summon was No.duly served and mere denial as against the orders of the Court may No.be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called and he supports the case of the defendants, then the effect of previous order of the court accepting sufficiency of service is whittled down, came to a finding that the learned trial court rightly held that the initial onus lay on the petitioners to prove that the summons were No.duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did No.kNo.the defendant, who was identified by either the plaintiff or his agent, crossexamination is No.necessary, but if the process Server adheres to his report, it is open to the defendant to take permission of the court under section 154 of the Evidence Act for crossexamination and opportunity for cross-examination is to be freely granted and granting of such permission does No.amount to pre-judging by the court the veracity of the witness. (See Nebti Mandal and others v. Emperor, AIR 194.Patna, 289). The learned appellate court also took note of the fact that the trial court verified the materials on record, while holding that summons were served on them as per the provisions of 8 Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time and there is no sufficient explanation for the delay as it was admitted by the P.W. 1 that he came to kNo.about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No.268 of 2002, who informed that the opp. party No.1, who is a defendant no.1 in the suit, has filed the written statement stating that T.S. No.96 of 1997 has been decreed ex parte.',
	(int) 7 => '<p>7. On considering the findings of the learned courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or under Article 226 of the Constitution of India.',
	(int) 8 => '<p>8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9'
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8. The writ petition being devoid of any merit stands dismissed. …………………… M.M. Das, J.Orissa High Court, Cuttack. July 24th ,2013/Biswal. 9

Court	Orissa High Court
Decided On	Jul-24-2013
Appellant	Gagan Jena and Others
Respondent	Rama Chandra Parida and ors.

Gagan Jena and Others Vs. Rama Chandra Parida and ors. - Court Judgment