The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.22 of 2012 Order No. 08. Rukmini Sahu Petitioner Mr. Amit Prasad Bose, Advocate …. -versus- Kanta Devi Sahu and others …. Opposite Parties Mr. S.P. Mishra, Sr. Advocate assisted by Mr. G.N. Parida, Advocate for O.P. No.3 CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 09.07.2024 This matter is taken up through Hybrid Mode. 2. The defendant in the trial court/petitioner in this petition, has challenged the order dated 23.04.2012 passed in C.M.A. No.11 of 2006 by the learned Civil Judge (Senior Division), Bargarh,
Facts
allowing the petition of the plaintiff-opposite party no.1 (Kanta Devi Sahu) under Order 9, Rule 9 of the Code of Civil Procedure. 3.
Legal Reasoning
having considered her such plea, allowed the petition under Order 9, Rule 9 by observing thus:- “The Petitioner while cross-examining O.P.W.1 has suggested that the petitioner was under impression that no restoration petition is required to restoration of T.S. 84/81 as there was order for analogous trial of both the suits and for that reason she did not file restoration petition in time with bona fide believe. She also gave suggestion that due to wrong advice of the previous advocate. She could not file the restoration petition in time. Thus from the evidence and the materials available on record, it is apparent that T.S.84/81 and T.S.106/81 were ordered to be analogous trial for which the advocate concerned lost interest and when both the suits were dismissed. She was not informed, rather, she was given impression that no restoration petition is required as analogous trial is being ordered. Thus the petitioner could establish that there was sufficient cause for her non- appearance and the petitioner could establish that on a bona fide mistake she could not take step for restoration of the suit earlier. It is the established law that if wrong advice is given by the advocate, or for the default of the advocate, the party should not be allowed to suffer. There is legal maxim, “Audi alteram partem”. The maxim means that a person should not be condemned on ex parte statements. Thus the principle of natural justice and the legal maxim and further that the petitioner could satisfy that for her non- appearance. As such the petition filed by Kanta Devi Sahu u/Order 9 Rule-9 C.P.C. ought to be allowed.” there was sufficient cause 4. Considering such plea, it appears that the learned Civil Judge (Senior Division), Bargarh restored the title suit No.84 of 1981, which was dismissed for default on 02.01.1996. 5. Sri Amit Prasad Bose, learned counsel for the petitioner submitted that though the Court has ample empower to condone the delay in filing the petition under Order 9, Rule 9 of C.P.C. without Page 2 of 8 accompanied by a petition for condonation, in the absence of any material placed in the petition under Order 9, Rule 9 enumerating plausible cause with facts the learned Civil Judge (Senior Division) approached erroneously. He further submitted that in absence of separate petition for condonation of delay, the petition under Order 9, Rule 9 ought to have been rejected in limine. 6. Sri G.N. Parida, learned counsel for opposite party no.3 has taken this Court to para-6 of the petition under Order 9 Rule 9 read with Section 151 of C.P.C. being C.M.A. No.11 of 2006 filed to restore T.S. No.84 of 1981. Said paragraph reads thus:- “6. That the petitioner is a Pardanasin lady and she does not appear in public. The husband of the petitioner was looking after the T.S. No.84 of 1981 on behalf of the wife petitioner in that suit. When the suit was dismissed for default the petitioner and her husband were residing at Nagpur for business. They had no knowledge about such dismissal of the suit. The Advocate of the petitioner who was engaged to conduct T.S. No.84 of 1981 lost interest as both the suits were ordered for analogous hearing and did not take step on behalf of the petitioner in that suit. The petitioner and her husband were quite ignorant about the proceeding and they were not properly advised to file any restoration petition when they came to Bargarh they engaged another lawyer and filed a petition on 04.04.05 in the Court of Addl. District Judge (Fast Track) Bargarh in T.S. No.106 of 1981 with a prayer to call for T.S. No.84 of 1981 for analogous haring. The petitioner was given impression that since Hon’ble Court has passed order for analogous hearing both suits shall be heard as one suit and therefore, the petitioner could not file any petition for restoration of the suit earlier. Therefore, the delay in filing the petition is with bonafide belief and she has sufficient cause for seeking restoration of the suit. Unless the above suit is restored and the order of dismissal is set-aside, the petitioner will suffer an irreparable loss. Hence prayed that after hearing the parties the dismissal order passed in T.S. No.84 of 1981 be set-aside and the petitioner be given an opportunity to contest the suit on merit.” Page 3 of 8 6.1. To demolish the plea that the opposite party no.1 was Pardanashin woman so that she was ignorant of law and unaware of the proceeding, Mr. Parida, learned Advocate referred to paragraphs-11 and 12 of the impugned judgment, which are extracted hereunder:- “11. The learned counsel for the O.P. No.7 submitted that the petitioner is having regular business dealing she is operating Bank accounts and she acts as Foster parents in Sitalsisthi of Ganesh and Parvati. She is appearing in public. As such she cannot be termed as Pardanashin woman. In this regard Kantadevi Sahu, examined herself as 12. solitary witness. In her cross-examination she has stated that in the year 2002 she along with her husband acted as parents of Ganesh and Maa Parvati during Sitalsasthi Festival. She has also admitted that she has foreign liquor shop at Bargarh and she is filing business return. Thus relying on the business dealing and appearing in public, the learned counsel for the O.P. No.11 submitted that the petitioner cannot be treated as Pardanashin woman and she cannot take advantage of Pardanashin lady being a Pardanashin woman. Hence, the petition for restoration needs to be dismissed.” 6.2. Learned counsel for opposite party no.3 has also cited judgment rendered by the Hon’ble Supreme Court in Ritesh Tewari and another Vs. State of Uttar Pradesh and others, (2010) 10 SCC 677. At paragraph-27, it has been stated that, “Where a party’s claim is not founded on valid grounds, the party cannot claim equity. A party that claims equity must come before the court with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh vis-a- vis the other unjustly.” 6.3. He also cited a judgment rendered by the Hon’ble Supreme Court in V. Chandrasekaran and others Vs. The Administrative Page 4 of 8 Officer and others, 2013 (I) OLR 324, in which paragraph-34 is quoted hereunder:- “The Appellants have not approached the Court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said Court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem Cum Alterius Detrimento Et Injuria Fieri Locupletiorem” means that it is a law of nature that one should not be enriched by causing loss or injury to another.” 7. After hearing both the learned counsel for the parties, this Court finds that the trial Court proceeded erroneously and exceeded its jurisdiction by setting aside the order of dismissal dated 02.01.1996 and should not have restored the Title Suit No.84 of 1981. It is seen that the trial Court proceeded on the basis that both the suits were to be taken up analogously pursuant to direction of this Court. However, both the suits got dismissed for default and T.S. No.106 of 1981, having got restored, was proceeded with and concluded. Without sufficient cause being shown by the plaintiff- opposite party no.1 herein, merely claiming that she was Pardanashin woman and unaware of legal position and proceeding, should not have been considered as good cause for condoning the delay in filing the petition under Order 9, Rule 9 of C.P.C. 8. This Court further observes that on bare reading of para-12 of the order dated 23.04.2012 passed in C.M.A. No.11 of 2006, it is manifest that the opposite party no.1 along with her husband was appearing in public and she has admitted in her cross-examination that she had foreign liquor shop at Bargarh and filed return before the authorities concerned. However, without taking cognizance of Page 5 of 8 such factual aspect, the Civil Judge (Senior Division) has allowed the petition on the basis of her averment that the advocate for the defendant No.1 has ill-advised her regarding analogous trial. 9. The contention as dealt with by the Civil Judge, Senior Division, at the first blush, appears very attractive and tends the Court to interfere with the matter. However, a litigant who approaches to the Court must be diligent. He or she must take all steps to pursue his or her litigation. It is expected from the litigant that he or she is in contact with the lawyer who is representing his or her cause in the Court of law. A litigant cannot take a specious plea that once the case is entrusted with an the advocate his or her work is over and the advocate will take care of the matter. An Advocate always discharges his duties on the instructions given to him by his client. The perception that fault of advocate or wrong advice of counsel should not prejudice litigant has no universal application. Even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right. In the present case even while the petitioner had admitted that she had been appearing in public, the consideration of condonation of delay on the plea of Pardanashin woman was not just and proper. In Pathapathi Subba Reddy Vrs. The Special Deputy Collector (LA), (2024) 4 SCR 241 the Hon’ble Supreme Court of India has enunciated the principles as follows: “On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: Page 6 of 8 (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; Page 7 of 8 (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.” 10. In the instant case, the Order dated 23.04.2012 of the Civil Judge (Senior Division) is not above reproach and while allowing the Order 9, Rule 9 of the Code of Civil Procedure, the said Court has not used its discretion in proper perspective inasmuch as it failed to appreciate that the Title Suit No.106 of 1981 had already been concluded and the outcome had already attained finality. In such view of the matter, the trial Court committed an error in exercising its jurisdiction and there being absence of sufficient cause, the order dated 23.04.2012 passed in C.M.A. No.11 of 2006 sustained in the eye of law. Accordingly, the order dated 23.04.2012 passed by the learned Civil Judge (Senior Division), Bargarh is set aside and, consequently, this CRP is allowed. Before parting, it is apt to place that this Order in CRP has been passed on the basis of submission by the counsel appearing for the parties that the suit has not proceeded in view of interim orders passed by this Court. Laxmikant Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jul-2024 19:25:00 (M.S. Raman) Judge Page 8 of 8
Arguments
Learned counsel for the petitioner submitted that there were two suits tied up before the learned Civil Judge (Senior Division), Bargarh having common parties in both the suits. One of the suits, i.e., T.S. No.106 of 1981 has already been disposed. The decree having not been challenged, accepted by the parties; thereby the same attained finality. However, the wife of the original plaintiff by filing the aforesaid petition under Order 9, Rule 9 of the C.P.C. sought to revive T.S. No.84 of 1981, which was dismissed for default vide Order dated 02.01.1996, on the plea that she was Pardanashin woman and unaware of such proceeding before the learned Civil Judge (Senior Division), Bargarh. The Trial Court Page 1 of 8