Misc. Appeal No. 09 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 669 OF 2015 Guria @ Guru Charan Jena and others …. Petitioners Mr. Dayanidhi Lenka, Advocate -versus- Saraswati Bidyamandira and another …. Opp. Parties Ms. Saswata Pattanaik, Advocate on behalf of Mr. N.K. Sahu, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. JUDGMENT 27.02.2023 10. 1. This matter is taken up through hybrid mode. 2. Judgment dated 31st July, 2014 (Annexure-3) passed by learned Additional District Judge, Jajpur in Misc. Appeal No.09 of 2009 is under challenge in this CMP, whereby dismissing the appeal, order dated 30th January, 2019 (Annexure-2) passed by learned Civil Judge (Junior Division), Jajpur in Misc. Case
Facts
No.176 of 2004 (arising out of T.S. No.121 of 2002) filed under Order IX Rule 13 C.P.C., has been confirmed.
Legal Reasoning
finding, this Court in exercise of power under Article 227 of the Constitution is not inclined to disturb the same, more particularly, when the same is based on materials on record. 11. Accordingly, I find no infirmity in the impugned orders under Annexures-2 and 3. 12. Hence, the CMP being devoid of any merit stands dismissed, but in the circumstances, there shall be no order as to cost. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 7 of 7
Arguments
3. Mr. Lenka, learned counsel for the Petitioners submits that T.S. No. 121 of 2002 was filed by the Opposite Parties for eviction of the Petitioners. The case of posted to 29th February, 2004 on which date the Petitioners could not appear and they were set ex parte. On 29th June, 2004, hearing was concluded and ex parte judgment was pronounced on 31st July, 2014. It is submitted by Mr. Lenka, learned counsel that Petitioner No.1, namely, Guru Charan Jena, was looking after the case on behalf of the Defendants-Petitioners. Unfortunately he felt ill from 29th February, 2004 to 11th August, 2004, as he was suffering from Page 1 of 7 // 2 // Gangrene Ulcer on his right leg. He was being treated by Dr. B.K. Mohanty. On his recovery, he filed an application in Misc. Case No.176 of 2004 under Order IX Rule 13 C.P.C. enclosing medical certificate issued by the treating physician in support of his illness. Although, the application under Order IX Rule 13 C.P.C. was filed within the statutory period, learned trial Court on a finding that treating doctor was not examined, dismissed the application vide his order dated 30th January, 2009 under Annexure-2. Assailing the same, the Petitioners preferred Misc. Appeal No.09 of 2009 and the appeal was also dismissed on the self-same ground. 4. It is his submission that when the Petitioners shown sufficient cause for their non-appearance on the date of hearing, learned trial Court should have entertained the same and set aside the ex parte decree giving an opportunity to the Defendants- Petitioners to participate in the proceeding of the suit. In support of his case, he relied upon the decision in the case of G.P. Srivastava –v- Shri R.K. Raizada and others, reported in AIR 2000 SC 1221, wherein it is held as under: Under Order 9 Rule 13 CPC an ex parte decree “7. passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding Page 2 of 7 // 3 // the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits..” (emphasis supplied) 5. He also relied upon the case of Mataji Dei –v- Babaji Sahu and others, reported in 1998 (I) OLR 201, wherein this Court at Paragraph-3, has held as under: “3. ……. In the instant case, an application was filed on the date of hearing for adjournment on the ground of illness of defendant No.6. The learned counsel appearing for opposite party No.1 submitted that in the said application for adjournment, it was not indicated that the defendant No.1 was suffering from filarial fever. Though it was not so indicated, the application was on the ground of illness of defendant No.6. In the petition under Order 9 Rule 13 CPC, it had been specifically stated that the petitioner was suffering from filarial fever. The petitioner while being examined as a witness categorically stated that she was suffering from filarial fever since about twelve years and could not attend the Court due to her illness. She has further stated that she used to take lemon water and honey and get cured. The aforesaid statement of the witness has not been subjected to any cross-examination except that a bare suggestion was made that the witness was not ill. It is, of course, true that the opposite party No.1 was examined as a witness and he denied about the illness of the petitioner. However, the bare denial of opposite party No.1 in the face of categorical assertion of the petitioner which had not been challenged at all in the cross-examination is not sufficient to discard the evidence of the petitioner. The materials on record prompt me to differ from the conclusion of the Courts below who have disbelieved the statement of the petitioner mainly on the Page 3 of 7 // 4 // ground of lack of medical certificate. In view of the aforesaid conclusion, it is found that there was sufficient cause for non-appearance of defendant No.6 on the date of hearing and the ex parte decree passed against her is liable to be set aside. …….. ” 6. Learned trial Court as well learned appellate Court being hyper technical, rejected the application under Order IX Rule 13 C.P.C. thereby prevented the Petitioners from contesting the suit. Hence, the impugned orders under Annexures-2 and 3 are liable to be set aside and the Defendants-Petitioners should be given an opportunity to contest the suit. 7. Ms. Pattnaik, learned counsel being authorized by Mr. Sahu, learned counsel for the Plaintiffs-Opposite Parties submits that it is for the conduct the Petitioners, they do not deserve any leniency in the matter. Learned Courts assessing the materials on record and discussing the evidence in detail have refused to set aside the ex parte decree. This being a petition under Article 227 of the Constitution, this Court should not interfere with the findings of fact only because a second view may be possible on re-appreciation of the material on record. 8. She further submits that the Plaintiff-Opposite Party No.1 is an educational institution. The Petitioner No.1 (Defendant No.1) was the care taker of the said school. After construction of the said school, the Petitioner No.1 directed to vacate the premises, but on his request, he was allowed to occupy the premises for some time as his residential house was devastated by super cyclone of 1999. Taking advantage of the same, the Petitioner No.1 did not vacate the premises, for which developmental work of the school could not be taken up. Further, they created nuisance in the premises of the school. Earlier the Page 4 of 7 // 5 // Petitioners filed a suit claiming title over the suit property by adverse possession. The suit was allowed on contest. But in the appeal it was reversed. Thus, the Plaintiffs-Opposite Parties finding no other alternative filed C.S. No. 121 of 2002 for eviction of the Petitioners. Although on the date of hearing i.e. on 29th February, 2004, the Petitioners were very much present in the premises of the Court, they intentionally did not participate in the proceedings of the suit and allowed it to be decreed ex parte. Thereafter they filed an application by enclosing a fabricated medical certificate obtained from Dr. B.K. Mohanty. The Defendants in their objection to the petition under Order IX Rule 13 C.P.C. had specifically objected to the genuineness of the said medical certificate. Thus, the burden is on the Petitioners to prove the genuineness of the said document by examining the author of the said document. Admittedly, the so called treating physician was not examined in the case. As such, learned Courts have committed any error in not accepting the said document. Bereft of the said document, no case in favour of the Plaintiffs- Opposite Parties is made out. She, therefore, prays for dismissal of the CMP. 9. Considering the rival contentions of the parties and on perusal of the record, it appears that medical certificate issued by Dr. B.K. Mohanty was relied upon by the Petitioners to establish their case that they were prevented by sufficient cause from appearing in the suit, when it was called on for hearing. A plea was taken that Defendant No.1, namely, Guru Charan Jena was looking after the case and was suffering from Gangrene Ulcer on his right leg from 29th February, 2004 to 11th August, 2004. On his recovery, the application under Order IX Rule 13 C.P.C. was Page 5 of 7 // 6 // filed on 12th August, 2004, i.e., within the statutory period. In the case of G.P. Srivastava (supra), the Hon’ble Apex Court held that when the application under Order IX Rule 13 C.P.C. is filed within the statutory period, it should ordinarily be allowed giving opportunity of hearing to the Defendants to contest the case. In the instant case, a specific plea was taken by the Plaintiffs in their show cause reply that the Defendants were present in the Court premises on 29th February, 2004, i.e., the date to which the case was posted for hearing. It was also specifically stated that the medical certificate relied upon by the Defendants was false and fabricated. Thus, the burden is on the Defendants to prove the genuineness of the said document. Admittedly the author of the document, namely, Dr. B.K. Mohanty was not examined in the case. No explanation has also been offered by the Defendants for non-examination of the author of the medical certificate. Although general principle suggests that a petition under Order IX Rule 13 C.P.C. filed within the statutory period should ordinarily be allowed, but that there cannot be any straight jacket formula in dealing with the petition under Order IX Rule 13 C.P.C., even if it is filed within the statutory period. The Court has to weigh the facts and circumstances of each case to decide the genuineness and reliability of documents filed scrutinizing the materials on record, while adjudicating a petition under Order IX Rule 13 C.P.C. It is, more so, because a right has already been accrued in favour of the Plaintiffs by the ex parte decree. Unless the Defendant, who is set ex parte, makes out a case, his absence on the date of hearing was bona fide and he was prevented by sufficient cause from appearing in Court, when the suit was called for hearing, the ex parte decree should not be set aside in a routine Page 6 of 7 // 7 // manner, even if, the petition under Order IX Rule 13 CPC is filed in time. In the instant case, there cannot be any dispute with regard to the law settled by the Hon’ble Supreme Court in the case of G.P.Srivastava (supra). The case of Mataji Dei (supra) has been decided on the facts of the said case. But, the same are of no assistance to the Petitioners, as they miserably failed to establish that the medical certificate issued by Dr. B.K. Mohanty is a reliable one. Discussing materials on record, both oral and documentary, the Courts have come to a conclusion that the Petitioners have not proved that they were prevented by sufficient cause from appearing in the Court on the date of hearing. 10. Since learned trial Court as well as learned appellate Court on material available on record, came to the aforesaid factual