The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:45:41 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 351 OF 2023 (An application under Article 227 of the Constitution of India) ***** Lankamalla Rajya Laxmi …. Petitioner Mr. Jiban Ranjan Dash, Advocate Voona Surya Rao -versus- …. Opp. Party Mr. S.S. Rao, Senior Advocate being assisted by Mr. Anish Ankur Mishra, Advocate -----------------------------------------------------------------
Decision
Heard and disposed of on 11.08.2023 ----------------------------------------------------------------- CORAM: JUSTICE K.R. MOHAPATRA K.R. Mohapatra, J JUDGMENT This matter is taken up through hybrid mode. 1. 2. Order dated 17th February, 2023 (Annexure-1) passed by learned District Judge, Rayagada in F.A.O. No.5 of 2018 is under challenge in this CMP, whereby dismissing the appeal, it confirmed the order dated 6th August, 2014 (Annexure-2) passed by learned Senior Civil Judge, Rayagada in C.M.A. No.8 of 2014 (arising out of C.M.A. No.33 of 2012) dismissing an application under Section 151 CPC. 3. Mr. Dash, learned counsel for the Petitioner submits that C.S. No.59 of 2010 was filed by the Opposite Party for specific performance of contract. The suit was decreed ex parte vide judgment dated 7th March, 2011 directing the Defendant- CMP No. 351 OF 2023 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:45:41 // 2 // Petitioner to execute the sale deed in favour of the Plaintiff- Opposite Party by accepting the balance consideration amount. For non-compliance of the said order, Execution Case No.4 of 2011 was filed by the Plaintiff-Opposite Party on 17th May, 2011. The Defendant-Petitioner on receipt of notice in Execution Case No.4 of 2011 came to know about the ex parte decree passed in C.S. No.59 of 2010 and filed an application in C.M.A. No.33 of 2012 under Order IX Rule 13 CPC. The said application was filed on 12th April, 2012. But, unfortunately, C.M.A. No.33 of 2012 was dismissed for default on 18th February, 2014. On 3rd March, 2014, learned counsel appearing on behalf of the Petitioner filed an application under Section 151 CPC to recall the order of dismissal of C.M.A. No.33 of 2012. The said application was rejected on 6th August, 2014 on contest. Assailing the same, the Petitioner filed F.A.O. No.5 of 2018. Since the appeal was filed after the statutory period, the Petitioner also filed an application for condonation of delay. Learned appellate Court finding a prima facie case in favour of the Petitioner, condone the delay by imposing cost. The cost so imposed was also paid to the Opposite Party. However, upon hearing learned counsel for the parties, learned appellate Court refused to admit the F.A.O. and dismissed it by order dated 17th February, 2023. Hence, this CMP has been filed assailing the said order. 4. It is further submitted by Mr. Dash, learned counsel that the Petitioner is a lady, who is residing with her husband at Visakhapatnam. She could not know about the pendency of the CMP No. 351 OF 2023 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:45:41 // 3 // civil suit and contest the same, as no summon, whatsoever, was served on her. By virtue of the decree, the Plaintiff-Opposite Party is now trying to take away the property of the Petitioner, which would worth more than two crore. The Defendant- Petitioner had taken a hand loan from the Plaintiff-Opposite Party and by playing fraud, the Plaintiff managed to obtain an agreement for sale of the suit property for Rs.20,00,000/-. It was also stated therein that the Opposite Party had paid Rs.5,00,000/- to the Defendant-Petitioner towards advance consideration amount. The petition filed under Order IX Rule 13 CPC was dismissed as learned counsel appearing on behalf of the Petitioner could not appear in Court at the time of call. At that time, he was engaged in a case before learned District Judge, Rayagada. Since the petition under Order IX Rule 13 CPC was dismissed due to latches of learned Advocate, he (the Advocate) filed a petition to recall the order of dismissal affirming the petition himself. Learned trial Court as well as learned appellate Court took exception to the same and refused to restore the petition under Order IX Rule 13 CPC. Further a petition should not be dismissed due to wrong nomenclature. It is the pleading as well as the relief sought for should be taken into consideration for a decision. Only because the Petitioner filed an application under Section 151 CPC to recall the order of dismissal of the petition under Order IX Rule 13 CPC for default, the same should not have been rejected on technical ground, more particularly, when the Petitioner is a lady and her property worth of more than two crore is being attempted to be taken on CMP No. 351 OF 2023 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:45:41 // 4 // payment of Rs.25,00,000/- only. These material aspects did not prevail in the mind of learned trial Court as well as learned appellate Court while considering the matter. Hence, the orders under Annexures-1 and 2 are liable to be set aside and the petition under Order IX Rule 13 CPC should be restored to file and the Petitioner should be permitted to pursue the same. 5. Mr. Rao, learned Senior Advocate being assisted by Mr. Mishra, learned counsel for the Opposite Party submits that assailing the order of dismissal of C.M.A. No.33 of 2012 for default filed under Order IX Rule 13 C.P.C., the Petitioner had preferred CMP No.621 of 2014 before this Court. The said CMP was withdrawn on 4th January, 2017 stating that the Petitioner would pursue C.M.A. No.8 of 2014 filed to recall the order of dismissal of C.M.A. No.33 of 2012. By that time, C.M.A. No.8 of 2014 had already been disposed of. Thus, the order passed in C.M.A. No.33 of 2012 remained un-assailed. Taking into consideration the materials available on record and keeping in mind the conduct of the Petitioner, learned trial Court as well as learned appellate Court passed the impugned orders under Annexures-1 and 2, which warrant no interference. He further submitted that the ex parte decree was passed on 7th March, 2011. After disposal of CMP No.621 of 2014 and C.M.A. No.8 of 2014, the Petitioner deposited the balance consideration amount on 14th May, 2018, as directed. Subsequently, notice under Order XXI Rule 34(a) CPC along with the draft sale deed was directed to be served on the Petitioner. In the meantime, the draft sale deed has already been CMP No. 351 OF 2023 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:45:41 // 5 // approved vide order dated 15th May, 2022. Since 2010, the Opposite Party is litigating to assert his right. The ex parte decree was passed on 7th March, 2011. In the meantime, more than twelve years have already elapsed and the Opposite Party is deprived to enjoy the fruit of the decree due to the latches of the Petitioner. In the facts and circumstances of the case as stated above, the impugned orders under Annexures-1 and 2 do not warrant any interference. 6. Considering the rival contentions of the parties, this Court finds that the Petitioner was thoroughly negligent in pursuing her application under Order IX Rule 13 CPC in C.M.A. No.33 of 2012. Only because she is a lady and was staying at Visakhapatnam, she should not be shown any leniency at the cost of prejudice to the Decree Holder. On the facts submitted by learned counsel for the parties as narrated above, this Court finds that the Petitioner was not at all diligent in pursuing her right, if any. It further appears that the Opposite Party has already deposited the balance consideration amount and the draft sale deed has already been approved since 5th May, 2022. 7. As rightly held in the impugned orders under Annexures- 1 and 2, an application for restoration of a petition under Order IX Rule 13 CPC was required to be filed by the party himself/herself. In the instant case, the petition was filed by her counsel. Although nomenclature of a petition should not be the consideration to decide the matter, but the Petitioner has not shown sufficient cause for restoration of the petition under Order IX Rule 13 CPC. It further appears that engagement of learned CMP No. 351 OF 2023 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:45:41 // 6 // counsel in another Court should not be a ground to recall the order dismissing the petition under Order IX Rule 13 CPC for default. 8. Thus, this Court finds that there is no infirmity in the impugned orders under Annexures-1 and 2. 9. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge CMP No. 351 OF 2023 Page 6 of 6