KISHORE MEHER @ RAJKISHORE MEHER vs NIMAI CHARAN BEHERA
- Court
- Odisha High Court
CMP/1612/2023
ODHC011063982023
2026:OHC:254
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1612 of 2023
An application under Article 227 of the Constitution of
India.
---------------
Petitioner
… …
Kishore Meher @
Rajkishore Meher
-Versus-
1. Nirmal Chandra Behera
2. Bhargabi Meher
3. Prasanna Meher
4. Prasanta Meher
5. Pramod Mehere
6. Prakash Mehere
7. Pradeep Mehere
8. Prafulla Meher
9. Pravasini Meher
10. Pramila Meher
11. Pramita Meher
12. Priya Meher
13. Preeti Meher
14. Prativa Meher
Opp. Parties
… …
Advocates appeared in the case:
For Petitioner : Mr. Rama Chandra Rath,
Advocate
For Opp. Parties : Mr. Digambar Sethi,
Advocate
------------------
1 13
Page of
CORAM:
THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
J U D G M E N T
------------------------------------------------------------------------------
Date of hearing : 22.09.2026 & 07.10.2026
Date of Judgment: 30.10.2026
------------------------------------------------------------------------------
MRUGANKA SEKHAR SAHOO, J.
1. Invoking Articles 226 and 227 of the Constitution of
India the Writ Application has been filed, challenging the
order dated 30.11.2023 passed by the learned Civil Judge
(Junior Division), Bargarh in Civil Suit No.17 of 2002
rejecting the prayer of the Petitioner-defendant, to allow
cross-examination of the Civil Court Commissioner, who
had filed the report, was examined and discharged as
witness.
2. The brief facts of the case are that the present
Petitioner is the defendant no.3 before the learned Civil
Judge (Junior Division), Baragarh in Civil Suit No.17 of
2002, filed on 18.03.2002. Notices were issued in the Suit to
the defendants - present Petitioner and they appeared on
11.12.2002 and filed their written statements on
10.03.2003. As per direction of the learned trial Court Civil
2 13
Page of
Court Commissioner was appointed. He prepared and
furnished his report. The report was accepted. The Civil
Court Commissioner was examined by the plaintiff on
22.06.2006 and was discharged as witness. The defendants
were absent on 29.06.2006 and the plaintiff adduced
evidence. On 30.06.2006 the defendants were set ex parte,
judgment was passed.
3. For setting aside the ex parte judgment, the defendants
filed CMA No.05 of 2012 before the learned Civil Judge
(Junior Division), Bargarh which was dismissed on
15.02.2018. On 12.03.2018 FAO No.03 of 2018 was filed
before the learned District Judge, Bargarh challenging the
ex parte judgment and decree. By order dated 29.07.2019
the learned District Judge, Bargarh set aside the ex parte
decree subject to payment of cost of Rs.2,000/- by the
defendants. On 09.08.2019 cost as directed was paid and
Civil Suit No.17 of 2002 was restored.
4. After restoration of the suit, on 26.08.2022 the present
Petitioner-defendant no.3 filed a petition before the learned
trial Court to recall and cross-examine the Civil Court
Commissioner. On 19.09.2022 the plaintiff-Opposite Parties
3 13
Page of
herein filed their objection to the petition that was made to
recall and cross-examine the Civil Court Commissioner. By
impugned order dated 30.11.2023, the learned trial Court
rejected the prayer of the defendant to recall and cross-
examine the Civil Court Commissioner. The facts further
relevant are that the report of the Civil Court Commissioner
was submitted on 21.03.2005 and the defendant was set ex
parte on 22.06.2006.
5. It was submitted by the learned counsel for the
Petitioner that he shall rely on provisions of law as well as
precedents to support the contention that the Court can
allow cross examination of the Civil Court Commissioner
though the defendant chose not to appear and not to cross
examine when the Civil Court Commissioner was examined
on 22.06.2006. Thereafter the plaintiff adduced evidence on
29.06.2006. The Opposite Parties herein-the plaintiff before
the learned trial Court filed their objection before the
learned trial Court.
6. It is contended by the learned counsel for the Opposite
Parties-plaintiff that after the Suit was restored to file by
setting aside the ex parte order and decree against the
4 13
Page of
defendants, they have a right to participate in the
proceeding from the stage/date on which the proceeding of
the suit was restored and not prior to that.
7. The Suit was for declaration of right, title and interest
of the plaintiff over the suit schedule land, permanent
injunction and for mandatory injunction against the
defendants. When the application was filed to cross-examine
the Civil Court Commissioner, the stage of the Suit, as it
was restored, was that of hearing. The learned District
Judge, Bargarh in FAO observed thus:
"the suit i.e.; T.S. No. 17/2002 is directed to be
restored to file for disposal on merit subject however
to payment of cost of Rs.2,000/- to the respondent No.
l/plaintiff within 15 days from today. It is also made
clear by the court that the defendant/appellant is to
respond positively and to adduce evidence from his
side that being the last opportunity provided and in
case, a further default occasions, the learned Court
below shall not hesitate but do well to dispose of the
suit i.e. T.S. No. 17 of 2002 without any amount of
delay. It is further held that the entire process of
evidence from the side of the defendant/appellant and
disposal of the suit i.e. T.S. No.l7 of 2002 by the
learned court below is to be exercised and expedited
preferably: within a period of two months hence from.
It is lastly held that there shall be no further
adjournment for the payment, of the imposed cost of
Rs.2,000/- and if the cost is not paid, on the date of
hearing of the suit i.e. T.S. No.17 of 2002 fixed by the
Courts, to be made recoverable along with the cost of
the decree, the purpose being is to prevent delay in its
5 13
Page of
disposal. In the circumstances, however, the parties
are directed to bear respective costs throughout.”
The above quoted portion is quoted from the order
dated 30.11.203 of the learned District Judge, Bargarh.
8. The order of the learned District Judge, Bargarh
passed in FAO No.03 of 2018 has attained finality having
not been challenged, and in considered opinion of this
Court, at this stage, the issues decided by the learned
District Judge, Bargarh particularly the stage of restoration
of the suit cannot be reopened.
9. Perusal of the order as quoted above indicates that the
learned District Judge did not direct/grant liberty to
defendant to cross-examine any witness those were
examined by the plaintiff rather the learned District Judge
directed the defendant-appellant to adduce evidence from
his side ‘being the last opportunity provided’.
10. It is contended by the learned counsel for the
Petitioner that since the Petitioner was set ex parte, he did
not get opportunity to cross-examine, therefore, he has
sought for the opportunity before the learned trial Court
after the suit was restored.
6 13
Page of
However, when the facts of the case are looked at, it is
apparent that the plea raised before this Court regarding
lack of opportunity is misconceived or at the most is an
afterthought. The present Petitioner-defendant (appellant
before the learned District Judge) had never sought for any
opportunity in the FAO to cross examine the Civil Court
Commissioner. The Petitioner-defendant had enough
opportunity from the date of submission of the Civil Court
Commissioner’s report on 21.03.2005 till the defendant was
set ex parte 15 months after, on 22.06.2006. The defendant
chose not to participate/not to remain present before the
learned trial Court. Such indifference of the defendant
cannot be countenanced when the defendant sought for
restoration of the suit which was granted by setting aside
the ex parte decree by the learned District Judge in FAO.
The suit has to be and has been restored to the stage when
the defendant was set ex parte i.e. on 22.06.2006. The
appellate order in FAO makes it abundantly clear as would
be evident from reading of the operative portion, quoted
above.
7 13
Page of
11. Perusal of the learned trial Court’s order reveals that
the Civil Court Commissioner’s report was placed on record
08.04.2005. Thereafter the matter was adjourned on
29.04.2005,09.05.2005,27.06.2005,18.07.2005,23.07.2005,
25.08.2005,2.09.2005,13.09.2005, 20.09.2005, 27.09.2005,
25.10.2005,11.11.2005,24.11.2005,30.11.2005,09.12.2005,
09.01.200609.02.2006, 18.02.2006. All the dates evidently
are for objection and hearing on Civil Court Commissioner’s
report. On 28.02.2006 and 20.03.2006 the following orders
were passed:
“28.02.2006: Adv. for the both parties files
hazira. C.C.C. report with objection are put up. Heard
on the objection of the defendant. The defendant is
willing to cross examine the C.C.C. Hence the
defendant is directed to file PCR. Showing deposit of
Rs.500/- as witness cost and taken steps. Put upon
08.03.06 for the PCR & steps.
20.03.2006: Adv. for the Plaintiff files hazira.
Adv. for the defendant files a memo showing deposit
of Rs.500/- file PCR Rs.500/- to witness cost to the
C.C.C. vide PCR no.148 on dt.20.3.06 and files
summon to witness issue the same. Put up on
24.3.06 for SR & hearing on C.C.C.”
In order dated 17.04.2006 the following has been
recorded:
17.4.06: Adv. for the defendant files hazira. Adv.
Sri S.C. Samantaray and others files V. nama along
with a time petition to adjourned the hearing on
behalf of the defendant. Head Time petition is
8 13
Page of
rejcted. Adv. Civil Court Commissioner present and
files hazira. He is cross-examine in Full. The
document marked as exhibit
I.II,III,IV,V,VI,VII,VIII,IX,X,XI and XII. Adv. for the
plaintiff files petition U/s 151 C.P.C. Copy served.
Put up on 20.04.06 for objection on the pet.
Dt.17.4.06 witness cost paid.”
Thereafter the matter was listed on 20.04.2006,
25.04.2006, 27.04.2006, 01.05.2006, 05.05.2006 and the
defendant was set ex parte on 22.06.2006
12. The evidence from the side of the plaintiff was closed
on 28.06.2006 and the matter was put up on 29.06.2006
for hearing of the defendant and argument of the suit. On
29.06.2006 since the defendant did not take steps to
adduce evidence, evidence from the side of the defendant
was closed. Therefore, the learned District Judge while
restoring the suit had directed that the defendant shall
adduce his evidence without fail. The defendant did not try
st
before the learned trial Court or the learned 1 Appellate
Court to make any such prayer by showing good/adequate
reasons to explain his absence earlier. At least the
defendant got a reprieve.
13. Mr. Rath, learned counsel for the Petitioner relies on
the decision rendered by the Hon’ble Supreme Court in
9 13
Page of
Nanda Dulal Pradhan and others vrs. Dibakar Pradhan
1
and others (Manupatra Print) and the judgment of
Coordinate Bench of this Court in State of Orissa and
2
others vrs. Sitanjjali Jena (Manupatra Print).
In considered opinion of this Court reliance on the said
decisions is of no avail to the Petitioner herein as the facts
in both the cases are miles apart from the case at hand.
Both the judgments do not lay down that upon restoration
of a suit by setting aside the judgment and decree as per the
appellate order, the party who was set ex parte can take
advantage of the situation to get the matter restored to a
date and stage which is fifteen months prior to the
date/stage of restoration sought for.
14. Paragraph-4 of the decision of the Apex Court in
Nanda Dulal ( supra ) is reproduced herein:
“4. In view of the above and for the reasons stated
above the impugned judgment and order passed by
the High Court is hereby set aside. The order passed
by the First Appellate Court setting aside the ex parte
judgment and decree and restoring the suit is hereby
restored. However, it is observed that on restoration
of the suit, the defendant nos.2 & 3 shall not be
permitted to file the written statement, as though
number of opportunities were given earlier, they did
1
2002 INSC 681: (2024) 12 SCC 155
2
2016 (I) ILR CUT 106
10 13
Page of
not file the written statement. However, at the same
time they may be permitted to participate in the suit
and cross examine the witnesses and make
submissions on merits. Present appeal is partly
allowed to the aforesaid extent. However, in the fact
and circumstances of the case there shall be no order
as to costs.”
[Underlines to supply emphasis]
15. The observations of the Hon’ble Supreme Court in
Nanda Dulal ( supra ) goes to show that when the defendant
did not avail the opportunity of filing written statement
despite getting several opportunities, the Hon’ble Supreme
Court refused to grant the opportunity to the defendant to
file the written statement. Drawing an analogy, in the
present case the defendant did not avail the opportunity of
cross examining the Civil Court Commissioner when the
suit was posted on several dates over fifteen months; he
cannot succeed in his plea to cross examine the Civil Court
Commissioner at the stage of adducing evidence by the
st
defendant which was the direction of the 1 Appellate
Court.
16. In such view of the matter the case law relied upon by
the learned counsel for the Petitioner do no come to his
11 13
Page of
3
help. In Quinn v. Leathem , Lord Halsbury, more than a
century ago, observed thus:
“Before discussing the case of Allen v. Flood(1898)
AC 1 and what was decided therein, there are two
observations of a general character which I wish to
make, and one is to repeat what I have very often
said before-that every judgment must be read as
applicable to the particular facts proved, or assumed
to be proved, since the generality of the expressions
which may be found there are not intended to be
expositions of the whole law, but governed and
qualified by the particular facts of the case in which
such expressions are to be found. The other is that a
case is only an authority for what it actually decides.
I entirely deny that it can be quoted for a proposition
that may seem to follow logically from it. Such a
mode of reasoning assumes that the law is
necessarily a logical code, whereas every lawyer
must acknowledge that the law is not always logical
at all. I think the application of these two propositions
renders the decision of this case perfectly plain,
notwithstanding the decision of the case of Allen v.
Flood.”
17. In view of the discussion made above, the Petition fails
and is dismissed. Upon restoration of the suit, it goes back
to the stage when the defendant no.3 was set ex parte . The
order dated 30.11.2023 passed by the learned Civil Judge
(Junior Division), Bargarh in C.S. No.17 of 2002 cannot be
faulted with and is accordingly confirmed.
3
[(1901) UKHL 2: 3(1901) AC465: [1900-3] AII E.R. Rep.1 (Page-7 plactium H & 1 of AII E.R.)]
12 13
Page of
The interim order dated 13.02.2024 stands vacated
upon dismissal of the present petition.
No costs.
18. Certified copy of the orders of the learned trial Court
passed in C.S. No.17 of 2002 starting with 02.01.2003 upto
22.08.2006 shall be returned to the learned counsel for the
Petitioner after retaining attested photocopy of the same by
the Registry.
(Mruganka Sekhar Sahoo)
Judge
Orissa High Court, Cuttack
th
The 30 October, 2026/Amit-Rajesh
Signature Not Verified
Digitally Signed
Signed by: RAJESH KUMAR BADHEI
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 31-Oct-2026 16:38:01
13 13
Page of