The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 345 OF 2023 Anupama Sahoo Petitioner Mr. Soubhagya Kumar Dash, Advocate …. Bhimsen Kar and another …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 03.05.2023 1. 1. This matter is taken up through hybrid mode. 2. Order dated 16th February, 2023 (Annexure-6) passed by learned Senior Civil Judge, Anandapur in CMA No. 61 of 2021 (arising out of C.s. No. 111 of 2010) is under challenge in this CMP, whereby an application for condonation of delay in filing the petition under Order IX Rule 13 C.P.C. by the Opposite Party No.1 has been allowed. 3. Mr. Dash, learned counsel for the Petitioner submits that C.S. No.111 of 2010 was filed by the Plaintiff-Petitioner to declare the sale deed No.1270 dated 10th April, 1985 is not binding on the Plaintiff and to set aside the same as well as for permanent injunction. The suit was decreed ex parte against the Defendants vide judgment dated 18th May, 2012. Although notices on the Defendants were made sufficient, but they chose not to appear in the suit and contest the same. Subsequently, nine years after passing of the ex parte judgment and decree, CMA No.61 of 2021 was filed under Order IX Rule 13 C.P.C. Page 1 of 5 // 2 // along with the petition for condonation of delay in filing the said application. Although it is averred in the petition that ex parte judgment passed in C.S. No. 111 of 2010 came to the knowledge of Defendants-Opposite Parties on 18th November, 2021, but no explanation was offered as to how the same came to their knowledge. It is also stated that obtaining certified copy of the ex parte judgment and decree, the Defendants-Opposite Parties immediately prepared to file the petition under Order IX Rule 13 C.P.C. It is not stated in the petition as to when certified copies of the ex parte judgment and decree were applied for and when it was made available to them. These material aspects were not taken into consideration by learned trial Court while adjudicating the petition under Section 5 of the Limitation Act. No sufficient cause has been assigned by the Opposite Parties in the petition for condonation of inordinate delay. As such, a right accrued in favour of the Plaintiff-Petitioner by virtue of the judgment and decree passed in C.S. No.111 of 2010 should not be taken away so lightly, that too after nine years. He, therefore, prays for setting aside the impugned order under Annexure-6 and to dismiss the petition under Order IX Rule 13 C.P.C. 3.1 Mr. Dash, learned counsel for the Petitioner relied upon the decision in the case of Basawaraj and another –v- The Special Land Acquisition Officer in Civil Appeal No.6974 of 2013, wherein the Hon’ble Supreme Court held at paragraph-15 as under: “The law on the issue can be summarized to the effect that where a case has been presented in the Court beyond limitation, the applicant has to Page 2 of 5 // 3 // explain the Court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No Court could be justified in condoning such an imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature.” inordinate delay by 4. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that ex parte judgment was passed in C.S. No.111 of 2010 on 18th May, 2012. Although in paragraph-3 of the ex parte judgment, it is stated that the Defendant No.1 was set ex parte and Defendant No.2 did not file any written statement, but took part in the trial, but there is no material available on record to show that notice was, in fact, served on the Defendant-Opposite Party No.1. From the averments made in the petition under Order IX Rule 13 C.P.C. in CMA No.61 of 2021, it appears that on an application filed by the Plaintiff-Petitioner under Order IX Rule 5 C.P.C., notice on the Defendant No. 1 was treated to be sufficient and he was subsequently set ex parte. It is averred in the petition that on 18th November, 2021, the Defendant-Opposite Party No.1 came Page 3 of 5 // 4 // to know about the ex parte judgment and decree passed in the suit and thereafter, he immediately applied for certified copies of the documents including ex parte judgment and decree. On 23rd November, 2021, the Defendant-Opposite Party No.1 received the certified copy of the judgment and decree. Thereafter, he received the detailed order sheet on 14th December, 2021 and then on 28th December, 2021, he filed the petition under Order IX Rule 13 C.P.C. No material contrary to the aforesaid statement is available on record to come to a different conclusion. It appears from the impugned order that learned trial Court taking into consideration the averments made in the petition under Order IX Rule 13 C.P.C. as well as the petition filed under Section 5 of the Limitation Act came to a categorical finding that there is sufficient cause to condone the delay in filing the petition under Order IX Rule 13 C.P.C. In absence of any material on record to the contrary, this Court is of the considered opinion that learned trial Court has committed no error in condoning the delay in filing the petition under Order IX Rule 13 C.P.C. The petition under Order IX Rule 13 C.P.C. is yet to be considered on merit. 5. There is no dispute to the principles laid down by the Hon’ble Supreme Court in the aforesaid case. Appreciating the materials available on record, learned trial Court held that there is sufficient cause for condonation of delay. Hence, this Court is not inclined to interfere with the same only because a second view may be possible on re-appreciation of the materials on record. Page 4 of 5 // 5 // BIJAY KUMAR SAHOO Digitally signed by BIJAY KUMAR SAHOO Date: 2023.05.05 17:40:28 +05'30' 6. Accordingly, I find no infirmity in the impugned order. Thus, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 5 of 5