The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1411 OF 2014 Chittaranjan Sahu and others …. Petitioners Mr. Saugat Dash, Advocate -versus- Janmejay Kar and others …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No. JUDGMENT 14.02.2023 12. 1. This matter is taken up through hybrid mode. 2. Order dated 29th September, 2014 (Annexure-4) passed by learned Civil Judge (Senior Division), Jaleswar in C.M.A. No.28
Facts
of 2014 (arising out of T.S. No.143 of 2001/C.S. No.811 of 2010) is under challenge in this CMP, whereby an application filed under Order IX Rule 4 C.P.C., has been dismissed.
Legal Reasoning
observation of this Court in W.P.(C) No.9419 of 2003 disposed of on 3rd July, 2014 with the following direction: “6. In view of the above, this Court disposes of this writ petition with a direction to the learned Civil Judge (Senior Division), Balasore to dispose of C.M.A. No.28 of 2014 filed by the Petitioners in for restoration of accordance with law as expeditiously as possible, preferably within a period of two weeks from the date to which it has been adjourned. Parties are directed to appear before the court below on 23.7.2014. The suit shall be heard on merit. As the status quo order over the suit land is the suit Page 3 of 7 // 4 // continuing continue till disposal of the suit.” from 30.9.2003, the same shall (emphasis supplied) 8. Mr. Dash, learned counsel for the Petitioners verily relied upon the observation of this Court ‘the suit shall be heard on merit’ and submits that there was also a positive direction to dispose of the suit on merit. He further relied upon the decision in the case of Gopal Krishna Sahu –v- State Bank of India, reported in 1993 (II) OLR 146, wherein relying upon the ratio decided by Patna and Bombay High Courts, this Court held as under: I am in agreement with the view expressed by “6. Patna and Bombay High Courts. It is desirable that the transferee Court should give notice of the date to which the case is posted to the parties. However, the position would be different where the case is transferred to a Court in the same station. A decision on the point is Kanhu Charan Pradhan and Ors. v. Banambar Pradhan and Anr. : 1985 (II) OLR 7. Since there was no notice issued to the defendant- appellant in the present case when the matter was taken up by the transferee Court, the appellant had sufficient causes for not appearing on the date fixed. Therefore, the ex parte decree cannot be maintained, which is accordingly set aside. ……….” He, therefore, submits that the Petitioners should have been noticed, when the suit was transferred to the Court of learned Civil Judge (Senior Division), Jaleswar, more particularly, in the peculiar facts of the case. He, therefore, prays for setting aside the impugned order under Annexure-4 and to restore the suit to file and hear it on merit. 9. None appears for the contesting Opposite Parties although they are represented though their learned counsel. 10. Upon hearing learned counsel for the Petitioners and on perusal of the record, it appears that Petitioner No.1, who was Page 4 of 7 // 5 // examined as P.W.1, has not explained the duration of his illness and treatment in the evidence in affidavit. However, the treating Physician in the medical certificate issued by him stated that the Petitioner No.1 was suffering from prolonged illness from 1st May, 2010 to 18th March, 2014. He also observed that the Petitioner No.1 required prolonged treatment. It appears that learned trial Court interpreting the word ‘prolonged treatment’, observed that when the Petitioner No.1 could file the petition under Order IX Rule 4 C.P.C. on 31st March, 2014, when he was under prolonged treatment, there was no reason, as to why, he could not appear on 4th September, 2010 or on 22nd September, 2010. Of course, the Petitioner No.1 could have been more cautious in taking steps in the suit, but it is easier to find out fault after the incident occurred than to be cautious to avoid such incident. Fact remains that the Petitioner No.1, who was looking after the suit did not take any step for which the suit was dismissed for default. It is not only the illness that prevented the Petitioner No.1 to take steps for restoration of the suit earlier. But there are several other circumstances attached to it; firstly, the conducting counsel joined Odisha Superior Judicial Service; secondly, his associate did not intimate about the dismissal of the suit to the Petitioners; and thirdly the suit was transferred from the Court of learned Civil Judge (Senior Division) Balasore to the Court of learned Civil Judge (Senior Division), Jaleswar, which was not within the knowledge of the Petitioners, more particularly, Petitioner No.1. 11. In view of the decision reported in Gopal Krishna Sahu (supra), it is clear that the Petitioners should have been noticed, Page 5 of 7 // 6 // when the suit was transferred to the Court of learned Civil Judge (Senior Division), Jaleswar. Had they been noticed, the situation might have been different. Of course, this Court while disposing of earlier writ petition, i.e., W.P.(C) No.9419 of 2003 has made an observation that the suit shall be heard on merit. It was probably with an expectation that the petition under Order IX Rule 4 C.P.C. would be allowed. 12. A petition under Order IX Rule 4 C.P.C. should be considered liberally taking into facts and circumstances of the case in entirety. Stray incidents should not be the guiding factors to refuse the prayer under Order IX Rule 4 C.P.C. The Court must always make an endeavour to see that the lis is finally and effectively adjudicated giving opportunity of hearing to the parties concerned unless there is any compelling circumstance to act otherwise. In the instant case, although a full proof case is not made out by the Petitioners for restoration of the suit, but taking into consideration the facts and circumstances in entirety, it appears that learned trial Court should have exercised its discretion judicially to see that the Petitioners should get a further opportunity to contest the suit. Since the case record of the suit is not available, this Court at the first instance thought of remitting the matter for fresh adjudication of petition under Order IX Rule 4 C.P.C. But looking at the age of the suit and that the Petitioners are diligently pursuing to restore the suit and they have shown a clear intention to contest it, this Court instead of remitting the matter to learned trial Court for fresh adjudication of petition under Order IX Rule 4 C.P.C., allows CMP by setting aside the Page 6 of 7 // 7 // impugned orders under Annexures-4 and 5. But, prejudice caused to the Defendants should be duly compensated by cost. 13. Accordingly, this Court allows the CMP directing learned trial Court to hear T.S. No.143 of 2001/C.S. No.811 of 2010 on merit giving opportunity of hearing to the parties concerned subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand Only) to the Defendants within a period of one month hence. The Court shall act upon the production of certified copy of this order. 14. With the aforesaid observation and direction, the CMP is
Arguments
3. Mr. Dash, learned counsel submits that the Petitioners being not properly advised, had also filed F.A.O. No.565 of 2014, which was dismissed as not maintainable vide order dated 29th October, 2014 passed by learned District Judge, Balasore (Annexure-5). 3.1 It is his submission that T.S. No.143 of 2001 was filed for declaration of right, title and interest over the suit land. The suit was dismissed against Defendant Nos.3, 4 and 10 on 4th September, 2010 due to failure of the Petitioners to take steps for issuance of notice on them. Subsequently, the suit was dismissed on 22nd September, 2010 for default. Page 1 of 7 // 2 // 4. Mr. Dash, learned counsel submits that the Plaintiffs- Petitioners had engaged Mr. Sovan Kumar Das, learned counsel to conduct their case. However, due to joining of Mr. Das, in the Odisha Superior Judicial Service, he entrusted the matter (suit) to his associate, namely, Mr. Santanu Kumar Panda to look after. As Mr. Panda did not intimate about the aforesaid orders to the Petitioners, timely step could not be taken for restoration of the suit. Further, the Petitioner No.1, who was looking after the suit, fell seriously ill for a prolonged period and was under treatment of Dr. A.C. Mishra. The suit was subsequently transferred to the Court of learned Civil Judge (Senior Division), Jaleswar and was re-numbered as C.S. No.811 of 2010, which was also not within the knowledge of the Petitioners. It is further submitted that the Petitioners had filed W.P.(C) No.9419 of 2003 assailing order dated 10th May, 2002 passed by learned Ad-hoc Additional District Judge, FTC, Balasore in Misc. Appeal No. 66 of 2001, which was filed against the order dated 11th May, 2001 passed by learned Civil Judge (Senior Division), Balasore in Misc. Case No.83 of 2001 (arising out of T.S. No.143 of 2001) (the present suit). 5. Upon receipt of a letter from the conducting counsel of the said writ petition, enquiring about the status of the suit, the Petitioner No.1 made an enquiry and came to know about the dismissal of the suit. As such, an application under Order IX Rule 4 C.P.C. was filed for restoration of the suit, which was registered as C.M.A. No.28 of 2014. The said application was rejected vide order dated 29th September, 2014 (Annexure-4) by learned Civil Judge (Senior Division), Jaleswar holding that the Petitioners Page 2 of 7 // 3 // failed to show sufficient cause for their non-appearance on the date, to which the suit was posted. Thereafter, the Petitioners being not advised properly preferred F.A.O. No.565 of 2014, which was also dismissed, as not maintainable by order dated 29th October, 2014 (Annexure-5). Hence, this CMP has been filed. 6. Mr. Dash, learned counsel for the Petitioners further submits that the Petitioner No.1 was looking after the suit. In view of the facts and circumstances narrated above, the non- appearance of the Petitioners on the date, to which the suit was posted, was not intentional and was bona fide. He further stated that Dr. A.C. Mishra, who was treating Petitioner No.1, issued medical certificate (Ext.3) observing that the Petitioner No.1 was under his treatment from 1st May, 2010 to 18th March, 2014. It was also observed that the Petitioner No.1 needed prolonged treatment. Learned trial Court being hyper technical, did not give any weightage to such medical certificate. 7. It is his submission that the plea of the Petitioners that Petitioner No.1 came to know about dismissal of the suit from the letter issued by the conducting counsel of this Court, was not discussed at all by learned trial Court. He also relied upon the
Decision
disposed of. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge ms Page 7 of 7