High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C). NO. 6854 OF 2012 (In the matter of an application under Article 227 of the Constitution of India, 1950) ******* Pratimma Palo … Petitioner -versus- Santilata Dei and others … Opposite Parties Advocate for the Parties : For the Petitioner : For Opp. Party Mr. Dwarika Prasad Mohanty, Advocate Mr. Nityabrata Behuria, Advocate CORAM: JUSTICE KRUSHNA RAM MOHAPATRA
Decision
------------------------------------------------------------------------------- Heard and disposed of on 18.08.2023 ------------------------------------------------------------------------------ JUDGMENT This matter is taken up through hybrid mode. 1. 2. Order dated 5th March, 2012 (Annexure-1) passed by learned Civil Judge (Senior Division), Puri in C.M.A. No.311 of 2011 is under challenge in this writ petition, whereby applications for condonation of delay, setting aside abatement of C.M.A. No.311 of 2011 and substitution of the applicant therein, namely, late Nityananda Jadab, have been allowed. 3. Mr. Mohanty, learned counsel for the Petitioner submits that Title Suit No.167 of 1998 was filed by the Petitioner against said Nityananda Jadab for specific performance of contract. The suit was decreed ex-parte on 29th March, 2003. Thereafter, the Page 1 of 7 // 2 // Petitioner filed Execution Case No.24/1 of 2010/2003 for execution of the decree. During pendency of the Execution Case, said Nityananda Jadab filed C.M.A. No.04 of 2004 (renumbered as CMA No. 311 of 2011) under Order IX Rule 13 CPC to set aside the ex-parte decree. During pendency of said C.M.A., Nityananda Jadab died. Since no step was taken either for substitution or to pursue the petition under Order IX Rule 13 CPC, the same was dismissed as abated. However, the Petitioner filed a petition for substitution in the Execution Case No.24/1 of 2010/2003 to substitute the widow of said Nityananda Jadab, namely, Santilata Dei as party to the Execution Case. After substitution, notices in the Execution Case were issued to said Santilata Dei. Subsequently, substituted notice under Order V Rule 20 CPC was taken by publication in the newspaper ‘Dharitri’. Thereafter, the Execution Case proceeded treating the notice on substituted LR to be sufficient and the sale deed was executed on 2nd August, 2011 through Court. When the matter stood thus, the Opposite Parties filed petitions for substitution of said late Nityananda Jadab, setting aside abatement of the CMA No.04 of 2004 and for condonation of delay in filing the petition for substitution. Those applications being allowed vide order under Annexure-1, this writ petition has been filed assailing the same. 4. It is submitted that the only ground taken in the petitions for setting aside the abatement and condonation of delay was that the Opposite Parties were unaware of the petition filed under Order IX Rule 13 CPC. When the Petitioner went to the suit land to take delivery of possession pursuant to execution of Page 2 of 7 // 3 // the sale deed, they came to know about the same and filed the aforesaid petitions. It is further submitted that learned trial Court made a peculiar observation to allow the applications, which is unknown to law. It is observed in the impugned order that there are several materials on record to show that the Opposite Parties (Petitioners therein) belong to weaker section of the society and members of conservative family, who had no opportunity to come across the news published in the newspaper. It is also observed that in a conservative family, the male dominates the females and females are passive supporter of such dominancy. The women are hardly getting a scope to know the litigations fought in the Court. It is his submission that such observations are unknown to law. When notice in the Execution Proceeding under Order V Rule 20 CPC was published in the newspaper, it is presumed to have been served on the Opposite Party No.1. Further, there is no material to dislodge the presumption of law of sufficiency of notice. A bald statement to the effect that they had no knowledge about the petition filed under Order IX Rule 13 CPC is not sufficient to condone the delay of more than four years in filing the petition for substitution, setting aside abatement and condonation of delay. Since the impugned order has been passed on mere presumptions and surmises, the same is not sustainable and is liable to be set aside. 5. Mr. Behuria, learned counsel for the Opposite Parties vehemently objects to the submission made by Mr. Mohanty, learned counsel for the Petitioner and submits that the writ petition is not maintainable as the petitions, if answered in favour of the Petitioner would have disposed of the proceeding Page 3 of 7 // 4 // under Order IX Rule 13 CPC. Thus, the order impugned herein is revisable under Section 115 of CPC. In support of his submission, he relied upon the case of Shiv Shakti Coop. Housing Society, Nagpur vrs. Swaraj Developers and others reported in 2003 (I) OLR SC 673, wherein at paragraph 32, it is held as under:- “32. A plain reading of Section 115 at it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is ‘Yes’ then the revision is maintainable. But on the contrary, if the answer is ‘No’ then the revision is not maintainable.” He, therefore, submits that the writ petition should be dismissed in limine. 6. It is further submitted that the Opposite Party No.1 was a widow of more than 70 years at the time of filing of the petitions for substitution, setting aside abatement, condonation of delay. In all probability, she could not have known about the notice published in the newspaper under Order V Rule 20 CPC in respect of the Execution proceeding. Learned trial Court taking note of the same and the fact that the Opposite Party belong to marginal section of the society, allowed the applications for the interest of justice. Since learned Court has exercised its discretion in allowing such application, it should be lightly set aside unless a strong case is made out in favour of the Petitioner. He, therefore, prays for dismissal of the writ petition. 7. Considering the rival contentions of the parties, this Court finds that the ground for setting aside abatement of CMA No.04 of 2004 (CMA No.311 of 2011) is that the Opposite Page 4 of 7 // 5 // Parties (Petitioners therein) had no knowledge of the pendency of petition under Order IX Rule 13 CPC. Only when the Petitioner went to the spot to take delivery of possession of the suit property, they came to know about the same and filed the petitions for substitution of late Nityananda Jadab, setting aside abatement of the petition under Order IX rule 13 CPC and condonation of delay in filing the aforesaid petitions. It is also manifest from the record that after death of Nityaranjan Jadab, his widow-Opposite Party No.1 was substituted in the Execution Case No.24/1 of 2010/03. Notices were issued to Opposite Party No.1. As it was not made sufficient, substituted notices were taken pursuant to the direction of the Executing Court and it was published in a local Odia newspaper, namely, ‘Dharitri’. In view of the above, the notice was treated to be sufficient. The sufficiency of notice is a presumption of law. Burden is on the party to establish the same, who seeks to challenge such presumption. In order to dislodge such presumption, Opposite Parties are required to make out a strong case in that regard. However, only a bald statement has been made in the petitions for abatement and condonation of delay to the extent that the Opposite Parties did not have any knowledge of pendency of the petition under Order IX Rule 13 CPC and its dismissal and they came to know about the same when the Petitioner came to the spot to take delivery of possession. No material in support of the same is available on record except the statement. There is also no material on record to show that when the Opposite Parties came to know about the proceeding under Order IX Rule 13 CPC. There is also no material on record to arrive at a conclusion that the Opposite parties did not have any occasion Page 5 of 7 // 6 // to go through the notice published in the newspaper. No petition against the order treating the notice on the Opposite Party No.1 to be sufficient in the Execution Case has also been filed. 8. The ground on which the aforesaid petitions were allowed was mere presumptions without any basis. Learned trial Court presuming that the Opposite Parties being members of weaker sections and conservative family, would have no occasion to read the newspaper. Such a presumption has no basis in absence of any material. The observation made by learned trial Court is also not the case of the Opposite Parties. 9. In view of the above, this Court is of the considered opinion that the Opposite Parties have not made out sufficient cause to condone the delay, set aside the abatement of the petition under Order IX Rule 13 CPC and substitution of late Nityananda Jadab. 10. No doubt, a proceeding under Order IX Rule 13 CPC is a ‘proceeding’ as contemplated under Section 115 of the CPC. But in the instant case, the petitions as aforesaid, if dismissed would not have resulted in culmination of the Order IX Rule 13 CPC proceeding as it had already been dismissed earlier. Thus, the provision under Section 115 of the CPC is not attracted in the instant case. 11. In view of the discussions made above, this Court is of the considered opinion that learned trial Court has committed an error of law in allowing the petition for substitution, setting aside the abatement and condonation of delay which was filed without proper explanation. Page 6 of 7 // 7 // 12. Accordingly, the impugned order under Annexure-1 is set aside and the writ petition is allowed to the aforesaid extent. 13. Interim order dated 15th May, 2012 passed in Misc. Case No.6009 of 2012 stands vacated. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Rojalin Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Aug-2023 13:58:36 Page 7 of 7