Rohit Bahadur Singh v. Anusaya Sahu & Anr.

ORDER 30.04.2025 Order No.

Heard Mr. Khuntia, learned counsel for the petitioner.

Instant petition is filed by the petitioner assailing the impugned order dated 12th November, 2024 passed in CMA No.02 of 2024 as at Annexure-4 by learned Civil Judge (Senior Division), Rairakhol, whereby, an application under Order 9 Rule 9 C.P.C. seeking restoration of the suit dismissed for default was declined.

Mr. Khuntia, learned counsel for the petitioner submits that the petitioner is the plaintiff and he instituted the suit in C.S. No.20 of 2021 seeking relief to declare a sale deed executed of the year 2018 by defendant No.2 in favour of an outsider to be null and void with such other reliefs sought for therein. It is submitted that before issuance of summons to the opposite parties, namely, defendant Nos.1 and 2 in the suit, it was dismissed for non- prosecution, whereafter, CMA No.02 of 2024 was filed in terms of Order 9 Rule 9 C.P.C. seeking restoration of the same. The further submission is that as there was a delay of five months, it was not condoned as per and in terms of Section 5 of the Limitation Act and consequentially, the application under Order 9 Rule 9 C.P.C. was dismissed denying restoration of the suit on the ground that there was no sufficient cause being shown and proved for such condonation.

The contention is that the suit ought to have been restored to file for disposal on merit especially when the petitioner was sick and bedridden since last twenty years, the fact, which was pleaded for the learned Court below, which however, declined such restoration on the plea that the delay is not duly explained and that even, he was represented by his wife. It is submitted that in the interest of justice, the suit is needed to be restored for its disposal as per law.

A copy of the plaint is at Annexure-1. The relevant order sheets of the suit are at Annexure-2. By order dated 2nd December, 2023, the suit was dismissed for default. As per the said order, no steps were taken from the side of the petitioner, who was absent on repeated calls. Admittedly, such dismissal of the suit is prior to the appearance of the opposite parties, namely, defendant Nos. 1 and 2. One of the defendants, as informed to the Court by Mr. Khuntia, learned counsel for the petitioner, to have died. The delay and condonation of the same has been declined in absence of any sufficient cause being shown by the petitioner. It is not in denial that the petitioner did not produce any medical evidence in support of illness, though, the same has been pleaded on record. The record reveals that the delay is more than five months and sought to be explained by the petitioner on the ground of his sickness. On a reading of the impugned order as at Annexure-4, the Court finds that the engaged counsel for the petitioner was absent on the date of hearing of the suit and that apart, it was pleaded that the petitioner was bedridden by then. The wife of the petitioner is not a party in the suit. The primary reason for which, the delay was not condoned, is on account of absence of any sufficient cause shown by the petitioner. Of course, delay is required to be explained while seeking condonation of the same. The default on the part of the petitioner was prior to the appearance of the opposite parties. It was at a time when the conducting counsel was found absent on the date of disposal of the suit by order dated 2nd December, 2023.

Law is well settled that delay and condonation of the same should be liberally considered, unless the party applying for the same is grossly culpable and found to be seriously negligent. It is also a settled law that each day’s delay is not to be explained. In other words, while considering the delay condonation, the Court should not have a pedantic approach. Considering the settled legal position and the fact that the petitioner is an elderly person and pleaded illness and on the date of hearing of the suit, the counsel engaged by him was found not present and furthermore, when his wife is not a party to the same, the Court is of the view that the learned Court below should have taken a liberal view instead, condoning the delay of more than five months. The Court is of the further view that the default could have been avoided but since the conducting counsel was absent and it relates to the dismissal of the suit for non-prosecution, considering explanation offered, even though not supported by any medical evidence, restoration of the same should be permitted in the interest of justice.

Hence, it is ordered.

In the result, the CMP stands allowed. As a necessary corollary, the impugned order in CMA No.02 of 2024 dated 12th November, 2024 as at Annexure-4 of learned Civil Judge (Senior Division), Rairakhol is hereby set aside with the restoration of the suit in C.S. No.20 of 2021 for its disposal as per and in accordance with law.

In the circumstances, there is no order as to costs.

Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 02-May-2025 12:21:07