Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK C.R.P. No.26 of 2007 AND C.R.P. No.27 of 2007 In the matter of an Application under Section 115 of the Code of Civil Procedure, 1908 *** Shri Kondula Laxmi Narayana Son of Late K. Raghunadam Aged about 65 years Proprietor of M/s. Manjula Traders Residing at Ravi Raj Complex Kamalavari Street At/P.O.: Berhampur, District: Ganjam. … -VERSUS- 1. Branch Manager The Agency Marketing Co-operative Society Ltd. Branch Office at Aska Road P.O.: Berhampur District: Ganjam. Petitioner. 2. 3. The Secretary The Agency Marketing Co-operative Society Ltd. At/P.O.: Tikabali District: Kandhamal. The President The Agency Marketing Co-operative Society Ltd. At/P.O.: Tikabali District: Kandhamal. C.R.P. Nos.26 and 27 of 2007 … Opposite parties. Page 1 of 71 Counsel appeared for the parties in both the CRPs: For the Petitioner : Mr. Sunkuru Sudhakar Rao, Senior Advocate assisted by Mr. B.K. Mohanty, Advocate For the Opposite parties : M/s. Sisir Das, A.K. Mohanty-B, A.K. Tandi and S.R. Mohapatra, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 04.10.2024 :: Date of Judgment : 08.11.2024 J UDGMENT Both the aforenoted Civil Revision Petitions have been filed challenging the common Order dated 27.02.2007 passed by the learned Civil Judge (Senior Division), Berhampur in C.M.A. Nos.31 of 2004 and 32 of 2004. They are taken up together for hearing and are disposed of by this common judgment. 1.1. Being aggrieved by the common Order dated 27.02.2007 passed by the learned Civil Judge (Senior Division), Berhampur allowing the petition under Order IX, Rule 9 of the Code of Civil Procedure (for short, “CPC”) filed by the opposite party-cooperative society, thereby setting aside the ex parte decree dated C.R.P. Nos.26 and 27 of 2007 Page 2 of 71 28.11.2003 passed in favour of the petitioner in Money Suit No.59 of 2001, Civil Revision Petition No.26 of 2007 has been filed by the petitioner with the following prayer: “The petitioner therefore prays that this Hon‟ble Court be graciously pleased to allow this application and upon hearing parties set aside the order dated 27.02.2007 by which the ex parte decree was set aside; And pass such other orders as this Hon‟ble Court deem fit and proper in the circumstances of the case; And for this act of kindness, the petitioner shall as in duty bound ever pray.” 1.2. Further being aggrieved by the common Order dated 27.02.2007 passed by the learned Civil Judge (Senior Division), Berhampur allowing the petition under Section 5 of the Limitation Act, 1963, filed by the opposite party-cooperative society, by condoning the delay in filing the petition under Order IX, Rule 9 of CPC, Civil Revision Petition No.27 of 2007 has been filed by the petitioner with the following prayer: “The petitioner therefore prays that this Hon‟ble Court be graciously pleased to allow this application and upon hearing parties set aside the order dated 27.02.2007 by which the ex parte decree was set aside; And pass such other orders as this Hon‟ble Court deem fit and proper in the circumstances of the case; C.R.P. Nos.26 and 27 of 2007 Page 3 of 71 And for this act of kindness, the petitioner shall as in duty bound ever pray.” Facts of the case as narrated by the petitioner: 2. Facts as adumbrated by the petitioner in both the Civil Revision Petitions and note of submissions reveal that the opposite party No.1 had filed an application under Order IX, Rule 13 of CPC initially against the petitioner praying to set aside the ex parte decree dated 28.11.2003 passed in M.S. No.59 of 2001 and the said application was registered as C.M.A. No.31 of 2004 on the file of the learned Civil Judge (Senior Division), Berhampur. The said opposite party No.1 has also filed another application being C.M.A. No.32 of 2004 under Section 5 of the Limitation Act, 1963 to condone the delay in filing the application under Order IX, Rule 13 of CPC. 2.1. The ground taken by the opposite party No.1 in the application under Order IX, Rule 13 of CPC was that he is the Branch Manager for Berhampur Branch of the Agency Marketing Cooperative Society Ltd. (for short, “society”) and took over charge of the Branch since July, 2003. During course of discussion with Deputy Superintendent of Police (Vigilance) with regard to the enquiries of the affairs of the society, on 22.03.2004 he came to know about the suit against the opposite parties-society. The further ground taken C.R.P. Nos.26 and 27 of 2007 Page 4 of 71 by the opposite party No.1 in the said application was that on enquiry he came to know that a judgment was delivered in 2003 and applied for the certified copy of the same. According to him, the ex parte decree passed in the suit was beyond his knowledge. 2.2. It is further alleged that during pendency of the application under Order IX, Rule 13 of CPC, opposite party No.1 filed an application to implead opposite party Nos.2 and 3 as parties and the said application being allowed, they were made parties to the CMA No.31 of 2004. 2.3. It is the further case of the petitioner that it has filed an objection clearly contending that the application was not maintainable. The locus standi of opposite party No.1 in filing the application was questioned on the ground that he joined in the office during July, 2003 and that he came to know about the same later was not tenable, inasmuch as he was not defendant in the suit in the personal capacity and it is immaterial if he had knowledge or not. It is sought to be objected that he was party in the suit as the official status. Therefore, the knowledge of the subsequent incumbents to the office cannot be a ground. 2.4. It is further case of the petitioner that merely because opposite party No.1 joined in the post at a later stage, C.R.P. Nos.26 and 27 of 2007 Page 5 of 71 and came to know about the result of the suit subsequent to his joining cannot be treated as sufficient and reasonable ground. It cannot be believed that there was no notice to opposite party No.1.
Legal Reasoning
2.5. It has been narrated by the petitioner, as plaintiff, that money suit being M.S. No.59 of 2001 was filed against the opposite parties for recovery of dues on 04.09.2001. However, in the said case the opposite parties did not file written statement, but filed a petition under Order IX, Rule 7 of the CPC, which was allowed on 17.01.2003. Thereafter, on 20.03.2003 the opposite party No.2 filed a petition under Order 14, Rules 1 and 2 of the CPC questioning the maintainability of the suit for adjudication of the suit by framing preliminary issue as to jurisdiction, which got rejected. On the application of the petitioner Order of attachment before judgment under Order 38, Rule 5 was passed on 29.09.2003. On 28.11.2003, the suit was decreed ex parte and a sum of Rs.16,42,500/- with interest @ 9% per annum was directed to be paid by the defendants-opposite parties herein. 2.6. On 27.02.2004, petition under Order IX, Rule 13 of the CPC was filed along with a petition under Section 5 of the Limitation Act for consideration of condonation of delay in filing said petition. C.R.P. Nos.26 and 27 of 2007 Page 6 of 71 2.7. The opposite party No.1 in support of the application under Order IX, Rule 13 of C.P.C. examined two witnesses. P.W.2 in his evidence has stated that he took charge of the post of Branch Manager in the month of July, 2003 but before that, he was the clerk in the very same Branch. Despite such relevant material to demonstrate that the opposite parties had full knowledge of the proceeding and the decree, the application under Order IX, Rule 13 of C.P.C. was filed by opposite party No.1 in the year 2004 for setting aside ex parte decree dated 28.11.2003. 2.8. Though the notice was published in the newspaper by way of substituted service, by Order dated 27.02.2007 the learned Civil Judge (Senior Division) allowed the applications filed under Order IX, Rule 13, CPC and Section 5 of the Limitation Act and set aside the ex parte decree dated 28.11.2003, subject to payment of cost of Rs.500/- and thereby the suit was restored to its position as on 05.11.2002 and directed to proceed with the suit from that date. 2.9. Hence, both the Civil Revision Petitions have been filed by the petitioner challenging the aforesaid impugned order dated 27.02.2007. The impugned Order dated 27.02.2007: 3. The impugned order reads thus: C.R.P. Nos.26 and 27 of 2007 Page 7 of 71 “Order dated 27.02.2007: 1. 2. 3. In these petitions one under Order IX, Rule 9 C.P.C. and the other under Section 5 of the Limitation Act which are also supported with affidavits, the petitioner who is the defendant in M.S. No.59 of 2001 has prayed to set aside the ex parte decree passed on 23.11.2003 after condoning the delay and to allow him to contest the suit. The case of the petitioner in short is that while discussing about their Society matter with the D.S.P. Vigilance he was informed about institution of the suit bearing No.M.S. 59/01 and on enquiry he came to know that the ex parte decree has been passed against their Society in the above suit vide order dated 23.11.2003. As summon has not been duly served upon them, there was no chance before them to know about institution of the suit and for that no step could be taken on behalf of their Society and this being sufficient cause, the ex parte decree passed against the Society is to be set aside after condonation of delay, otherwise they will suffer a great loss. The plaintiff-opposite parties in his counter urged to dismiss the petitions on the ground that the present defendant was well aware about the institution of the suit and in the absence of the defendant No.1 on the date fixed was intentional and only to harass him and as no sufficient cause has been shown by the petitioner and the application has also been filed after the period of limitation without explaining the delay, it is not maintainable in the eye of law. C.R.P. Nos.26 and 27 of 2007 Page 8 of 71 4. 5. In dealing with the application to set aside an ex parte decree against the defendant, the court is to consider the valid reasons those mentioned in the rule for disposing of the application. An application under Order IX, Rule 9 (sic. Order IX, Rule 13) CPC can be allowed on two grounds: (i) Where the summon was not duly served, (ii) Whether the defendant was prevented from sufficient cause from appearing when the fact called for hearing. In the case at hand, on perusal of the case record, it shows that the summon has not been personally served on the defendant but by substituted service by way of publication in the newspaper. No doubt a service substituted by order of the Court is as effectual as had been made on the defendant personally. But it is also settled principle of law that where an application to set aside the ex parte decree is filed, substituted service under Order 5 Rule 20 CPC shall not be deemed to be due substituted service. Though it is not always possible that only because substituted service was resorted to and effected, knowledge on the part of the defendant must always stand ruled out and knowledge is inferable if the facts and circumstances of the case warrants the same but the policy law is allowed the defendant a full opportunity of putting his case the person on whom before substituted service has been effected are entitled to have their interest vigilantly safe-guard. the court and lay down to C.R.P. Nos.26 and 27 of 2007 Page 9 of 71 Moreover, it is the settled principle of law that this sort of petitions are to be considered liberally to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. In a decision of the Apex Court reported in (2000) 3 SCC 541 it has also been observed that, the court has a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case and if sufficient cause is made out, a party cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier.” In a case reported in (2005) 4 CCC 111 Raj, it has also been observed that, the expression “sufficient cause” in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when no negligence or inaction or want of bona fide was computable to a party. In the case at hand when admittedly the the notice has not been served upon petitioner personally and the report of the Process-Server clearly indicates that by that time the office of the petitioner was under lock and key and it was also shifted to some other place, I think the defendant may not be in a position to know about the suit initiated against him. Similarly, as it shows from the petition filed by the petitioner as soon as he came to know about institution of the above suit, he also enquired about the matter and immediately filed this petitions to set aside the ex parte decree. 1
Legal Reasoning
G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54. C.R.P. Nos.26 and 27 of 2007 Page 10 of 71 So, considering the facts and circumstances of the case and in view of the correct legal position as regards to the effect of substituted service, I am of the view that the defendant has made out the „sufficient cause‟ for setting aside the ex parte decree and the inconvenience that will be caused to be compensated by awarding costs. Hence it is ordered: plaintiff-opposite parties can the
Decision
O R D E R Both the Misc. cases are allowed on contest. The ex parte decree and order passed on 23.11.2003 is set aside on the condition that the petitioner will pay a cost of Rs.500/- to the opposite parties within a period of 15 days. If the cost will be paid within the stipulated period, then M.S. 59/01 will be relegated to the stage as it was on 05.11.2002 and would proceed from that stage. If the cost will not be paid within the stipulated period, then the petitions will be deemed to have been rejected. Call on 13.03.2007 for payment of costs and for further orders. Sd/- S.K. Swain 27.02.2007 Civil Judge (S.D.)” Counter affidavit of the opposite parties: 4. Being noticed, the opposite parties have submitted counter affidavit refuting the contentions and disputing averments of the petitioner. C.R.P. Nos.26 and 27 of 2007 Page 11 of 71 4.1. The opposite parties submitted that the Agency Marketing Cooperative Society Ltd. is a body corporate being registered under the provisions of the Madras Cooperative Society Act (VI), 1932 bearing Registration No.J-711 dt.19th November, 1947 and deemed to have been registered under the Odisha Cooperative Societies Act, 1962. The Scheduled Tribes are „A‟ class members. The other categories people belong to „B‟ class members. Only tribal-members are elected to the Committee of Management of the Society. Only three members are nominated by the Government. The elected Committee so constituted had managed the affairs of the society till 2001. 4.2. The society mainly purchases the non-timber forest produce from its members at the rate fixed by the Committee of Management keeping in view the minimum support price and sell the same at the rate fixed by its Committee. The society was doing its business successfully till 31.03.2000 relating to some notified forest produce on lease basis on payment of royalty to Government of Odisha, but due to change of forest policy of the Government, the monopoly lease was discontinued. As a result of this, the society could not do any sizeable business to sustain its expenditure towards payment of salary of its employees and bear other expenses. Two of the employees of the society C.R.P. Nos.26 and 27 of 2007 Page 12 of 71 namely, Alok Kumar Das and Bishnu Charan Pradhan were holding the post of Secretary (in-Charge) in the year 2001 and 2003 respectively. 4.3. Government appointed the Deputy Registrar of Cooperative Societies (BKD), Phulbani as its Authorized Officer and subsequently nominated a Committee, comprising Government servants and non- official as its members and Collector, Kandhamal, Phulbani as its President. The Committee of Management of the society, being attended by the Registrar of Cooperative Societies, Odisha, Bhubaneswar, in their Meeting held on 17.10.2003 had passed the following Resolution: “7. Change of secretary.— It is reported by Sri S. Konhar, M.L.A., Balliguda that the Secretary of the society is not functioning properly and not fit to be the Secretary of the society. President of the society also expressed his displeasure on the functioning of the present Secretary Sri Bishnu Charan Pradhan. The Committee felt the necessity for posting of one Departmental Officer as Secretary of the society. Hence the Committee has requested the R.C.S., Orissa for posting of one S.A.R.C.S./I.C.S. to act as the Secretary of the Society for smooth running of the society. The R.C.S. Orissa to A.R.C.S., Phulbani present to propose the name of a staff of his circle for posting as Secretary of instructed C.R.P. Nos.26 and 27 of 2007 Page 13 of 71 A.M.C.S., Tikabili through his memo order at Phulbani.” According to the above resolution of the Committee, the Registrar of Cooperative Societies, Odisha, Bhubaneswar in his camp order dated 17.03.2003 had ordered that Sri Malay Kumar Das, the then Cooperative Extension Officer, Phulbani Block to act as the Secretary on attachment basis in addition to his own duties. According to the said order, Sri Malay Kumar Das joined as Secretary of the society on 20.10.2003, but Sri B. Ch. Pradhan, Ledger Clerk, functioning as In-charge Secretary did not hand over the charge. He instigated other employees of the society for non-cooperation from 01.11.2003 and then started lock up strike from 01.12.2003 and indulged in anti-society activities. He also remained absent from duties since 20.10.2003 onwards. He was placed under suspension vide Order No.8 dated 19.01.2004 of the President, A.M.C.S. Ltd.-cum-Collector, Kandhamal, Phulbani. Said Sri Bishnu Charan Pradhan did not receive the suspension order sent to him by registered post as also through process server of the society. Eventually, the records and the property remained in the custody of Sri Bishnu Charan Pradhan. They were recovered by breaking open the office of the A.R.C.S., Phulbani invoking provisions of under Section 33 of the Odisha Cooperative Societies Page 14 of 71 C.R.P. Nos.26 and 27 of 2007 Act, 1962. The inventory list did not contain any record relating to Money Suit No.59/2001 filed by the petitioner. As such, the Secretary, A.M.C.S. Ltd. could not have the knowledge about the above case. Therefore, having failed to keep track over the suit, on 28.11.2003 the ex parte decree was passed by the learned Civil Judge (Senior Division), Berhampur. 4.4. With the aforesaid background, the opposite parties sought to appraise that the society meticulously followed the instructions stated in the Letter No.33726 dated 26.11.1999 issued by the Commissioner-cum- Secretary, ST & SC Development Department of the Government of Odisha sent to the address of all Collectors/All divisional Forest Officers (T)/Managing Director, TPCCOL, Bhubaneswar/Secretary, Agency Marketing Cooperative Society Ltd., Tikabali. In the said letter, Government had fixed the price of Tamarind and other forest products for Kandhamal, Ganjam at the rate of Rs.600/- per quintal which is operative for the procurement year 1999-2000 (October, 1999 to September, 2000). In the said letter, Government had mentioned that “to make the primary gatherers aware of these prices, the district Collector are to give wide publicity throughout their district and devise an enforcement system. The revised prices should be circulated to all Gram Panchayats for local C.R.P. Nos.26 and 27 of 2007 Page 15 of 71 publicity”. Accordingly, the society had purchased the tamarind at the rate of Rs.600/- per quintal from the primary gatherers in the Kandhamal district in 1999- 2000 (procurement year). 4.5. The tamarind so purchased during the period from March, 2000 to June, 2000 were sold at Rs.850/- per quintal to 8 (eight) different traders of Berhampur city including the petitioner following the same sale modus operandi. A total of 1559.84.500 quintals goods of the value Rs.12,91,716.55 were supplied to the petitioner against the advance paid by him. Furthermore, the society had supplied a total of 1352.38.500 quintal of tamarind to the petitioner during the period from 29.04.2000 to 09.06.2000 which the petitioner had acknowledged the receipt of 135 M.T., i.e., 1350 quintals of tamarind in his letter dated 11.06.2000, but he deliberately suppressed this material fact in the Money Suit No.59 of 2001 filed against the society before the Court of Civil Judge (Senior Division), Berhampur. 4.6. From the information obtained from the Commercial Tax Officer, Ganjam-I Circle, Berhampur that the petitioner had shown trading of tamarind in his name and in the name of his son. From the purchase voucher submitted to the above authority, both had shown to have purchased tamarind stock of 1999- C.R.P. Nos.26 and 27 of 2007 Page 16 of 71 2000 (procurement year) at the rate varying from Rs.200/- to Rs.400/-. After deducting the purchase tax paid to Government, trade expenses and profit accrued to the seller of the stock to the petitioner and to his son, the rate might have been less than Rs.200/- to Rs.400/- thereby the petitioner as well as his son had cheated Government in payment of less purchase tax and far below the price fixed by Government of Odisha in S.T. & S.C. Department. Hearing: 5. On being noticed, the opposite parties have filed counter affidavit. Pleadings, being completed and exchanged among the counsel for respective parties, on their consent, both the Civil Revision Petitions are taken up for analogous hearing. Rival contentions and submissions: 6. Sri Sunkuru Sudhakar Rao, learned Senior Counsel appearing for the petitioner in both the Civil Revision Petitions submitted that an application for setting aside an ex parte decree can be moved by a party to the suit, only on two grounds: (a) when he had no notice of the proceedings; C.R.P. Nos.26 and 27 of 2007 Page 17 of 71 (b) when he was prevented from contesting the proceedings for the reasons which were beyond his control. In the instant case, both the requirements are absent. The fact that the society appeared and contested presupposes that there was notice to appear in the suit. It is vehemently contended that the other requirement is also absent because there is nothing on record to show that the opposite parties were prevented by any sufficient and reasonable cause to contest the proceedings. 6.1. He further submitted that it is evident that petition was filed by the society under Order IX, Rule 7 of C.P.C. and attempt was made to non-suit the petitioner by filing petition under Order 14, Rules 1 and 2 of CPC. It is submitted that the society also suffered an order under Order 38, Rule 5 of the CPC. 6.2. Strenuously presenting his argument the learned Senior Advocate urged that merely because new incumbent had joined as a Manager, that cannot be a plausible ground for the society to make out a case as if cause of action survived. He has submitted that since the society had contested the proceedings and the joining or transfer of an employee by no stretch of C.R.P. Nos.26 and 27 of 2007 Page 18 of 71 imagination can be construed to be a good reason to show indulgence by setting aside ex parte decree. 6.3. He expanded his argument by stating that law is well settled that once the delay is condoned, then only the main petition would get life to be considered. If the delay is not condoned, the lis would end there itself. In the present case at hand, though the delay was condoned, there was no order granting opportunity to contest the proceedings under Order IX, Rule 13 of CPC. Therefore, it is stated that there is flaw in procedure. 6.4. In support of his submission, Sri Sunkuru Sudhakar Rao, learned Senior Counsel has placed strong reliance on the decisions of the Hon‟ble Supreme Court as well as this Court in the matters of Sushil K. Chakravarty Vrs. Tej Properties Pvt. Ltd., AIR 2013 SC 1732; Anima Mishra Vrs. S. Venkataratnam, 1997 (II) OLR 288 and Indian Bank Vrs. B. Patnaik Mines (P) Ltd., AIR 2003 Orissa 81. 6.5. In the case of Sushil K. Chakravarty (supra), the Hon‟ble Supreme Court has observed as follows: “23. Despite our aforesaid determination, since the issue was hotly contested at the hands of the learned counsel representing the rival parties, we would venture to re-examine the same shorn of the conclusions drawn by the High Court: C.R.P. Nos.26 and 27 of 2007 Page 19 of 71 (the In the instant determination, it is first necessary to notice the stance adopted by the appellant (through legal representatives Arun K.C. and Sunil K.C.). For condonation of delay, it was pleaded at the behest of the appellant, that Arun K.C. and legal heirs/representatives of Sunil K.C. Sushil K.C.), who had filed IAs Nos. 3391 and 4531 of 2008, had no knowledge of the property under reference, nor had they any knowledge of the pending litigation in connection therewith. The learned Single Judge, while passing the common order dated 24-8-2009 [Sushil K. Chakravarty Vrs. Tej Properties (P) Ltd., CS (OS) No. 1348 of 1996, order dated 24.08.2009 (Del)] , as also, the Division Bench of the High Court, while passing [Sushil the common order dated 17.10.2011 Kumar Chakravarty Vrs. Tej Properties (P) Ltd., FAO (OS) No. 516 of 2009, decided on 17.10.2011 (Del)] , delineated the stance of the appellant for condonation of delay. the relating litigation The aforesaid stance is in consonance with the pleadings filed on behalf of Arun K.C. and Sunil K.C. It is their case, that they were not aware of to the pendency of agricultural land owned by Sushil K.C. measuring 8 bighas and 5 biswas with a farmhouse built thereon along with tubewell, electricity connection, etc. falling within the revenue estate of Village Chhatarpur, Tehsil Mehrauli, New Delhi (also described as Maharani Rosary) and they became aware of the same only in the third week of February, 2008. Having become aware of the same, it is their case, that they immediately moved the High Court for obtaining certified C.R.P. Nos.26 and 27 of 2007 Page 20 of 71 copies. Having obtained the certified copies in the last week of February, 2008, without any delay whatsoever, they filed IA No. 3391 of 2008 on 11- 3-2008, and IA No. 4531 of 2008 on 28-3-2008. If the factual position projected at the hands of the applicants (Arun K.C. and Sunil K.C.), who had filed the aforesaid two interlocutory applications, had been correct, there would have been no difficulty whatsoever, to accept their prayer for condonation of delay. The fact of the matter however is, that there is ample record to demonstrate, that the aforesaid factual position is false. In this behalf, it is relevant to notice, that during the course of the proceedings in CS (OS) No. 1275 of 1990, filed by one of the legal heirs who has jointly filed the two interlocutory applications (IAs Nos. 3391 and 4531 of 2008) with his brother, a prayer was made that memorandum of understanding dated 28.10.1996 depicting the partnership of the plaintiff with Sushil K.C., be declared illegal. During the course of hearing before us, the aforesaid CS (OS) No. 1275 of 1990 was ordered [Sunil Kanta Chakrovorty Vrs. Sushil Chakrovarthy, CS (OS) No. 1275 of 1990, order dated 13.11.2002 (Del)] to be tagged with CS (OS) No. 1479A of 1989, wherefrom the factum of the pending litigation between Sushil K.C. and Tej Properties would have naturally come to the knowledge and notice of one of the legal heirs/representatives. The finding recorded in the common order dated 17.10.2011 [Sushil Kumar Chakravarty Vrs. Tej Properties (P) Ltd., FAO (OS) No. 516 of 2009, C.R.P. Nos.26 and 27 of 2007 Page 21 of 71 decided on 17.10.2011 (Del)] passed by the Division Bench of the High Court to the effect, that knowledge pertaining to the agreement to sell dated 17.03.1992 came to be acquired by the applicants in the two interlocutory applications (IAs Nos. 3391 and 4531 of 2008) from the reply filed by Sushil K.C. to IA No. 10161 of 1997 in CS (OS) No. 1479A of 1989 on 25.08.1998, has not been disputed. Likewise, the fact, that Sushil K.C. had disclosed in the aforesaid reply to IA No. 10161 of 1997 in CS (OS) No. 1479A of 1989, the pendency of CS (OS) No. 1348 of 1996 and CS (OS) No. 2501 of 1997 between himself (Sushil K.C.) and Tej Properties, and the further fact that the subject-matter of the aforesaid two cross-suits was the agreement to sell dated 17.03.1992 pertaining to the land which is subject-matter of the present controversy, has also not been disputed. We would therefore conclude that Arun K.C. and Sunil K.C., had knowledge about the property of Sushil K.C. which was the subject- matter of consideration in CS (OS) No. 2501 of 1997 as far back as on 25.08.1998. We would therefore also conclude, that Arun K.C. and Sunil K.C. had knowledge of the pending litigation between Sushil K.C. and Tej Properties as far back as on 25.08.1998. The aforesaid factual position leaves no room for any doubt in our mind, that the applicants Arun K.C. and Sunil K.C. (in IAs Nos. 3391 and 4531 of 2008) had full knowledge about the property the subject-matter of consideration which herein, as also the pending litigation connected therewith, well before the death of Sushil K.C. on is C.R.P. Nos.26 and 27 of 2007 Page 22 of 71 the death of Sushil K.C. 03.06.2003. There can, therefore, be no valid justification for them, to have delayed their participation as legal heirs/representatives in both the aforementioned suits immediately after (on 03.06.2003). Their efforts to participate in the two suits commenced on 11.03.2008 [by filing IA No. 3391 of 2008 in CS (OS) No. 2501 of 1997], and on 28.03.2008 [by filing IA No. 4531 of 2008 in CS (OS) No. 1348 of 1996]. It is therefore apparent, that the explanation tendered by the legal heirs/representatives (Arun K.C. and Sunil K.C.) of the deceased Sushil K.C. in the interlocutory applications (IAs Nos. 3391 and 4531 of 2008) filed by them for condonation of delay, was false to their knowledge. Having so concluded, it is apparent, that the applicants had not approached the High Court for judicial redress with clean hands. Based on our aforesaid determination, we are satisfied, that the learned Single Judge (vide order dated 24.08.2009 [Sushil K. Chakravarty Vrs. Tej Properties (P) Ltd., CS (OS) No. 1348 of 1996, order dated 24.08.2009 (Del)] and the Division Bench (vide order dated 17.10.2011 [Sushil Kumar Chakravarty Vrs. Tej Properties (P) Ltd., FAO (OS) No. 516 of 2009, decided on 17.10.2011 (Del)] ) were fully justified in not accepting the prayer made by the legal heirs/representatives of Sushil K.C. for condoning the delay in filing the two interlocutory applications (IAs Nos. 3391 and 4531 of 2008). The impugned orders [Sushil Kumar Chakravarty Vrs. Tej Properties (P) Ltd., FAO (OS) No. 516 of 2009, decided on 17.10.2011 (Del); C.R.P. Nos.26 and 27 of 2007 Page 23 of 71 Sushil K. Chakravarty Vrs. Tej Properties (P) Ltd., CS (OS) No. 1348 of 1996, order dated 24.08.2009 (Del)] passed by the High Court are, therefore, hereby affirmed.” 6.6. In the case of Indian Bank (supra), this Court has held as follows: in “28. Now coming to the question of effect of death of defendant-respondent No.2, one of the Directors of the Company, and the non-substitution of all his heirs the appeal, admittedly defendant- respondent No.1 is a Private Limited Company and all the Directors are parties to the suit. Thus, death of one of the Directors does not affect the suit in any way. As regards defendant No.2 personally, some of his legal heirs are already on the array of parties and hence there is no abatement.” 6.7. In the case of Anima Mishra (supra), this Court has held as follows: “5. In the present case, opposite party No.1 alone examined herself. Though the medical certificates are on record, those have not been proved nor the doctors issuing them were examined, nor any person or any neighbor who might have been acquainted with the fact of illness of the defendant No.1 was examined to corroborate the version of defendant. The Court found that it was not possible on its part to come to a definite finding with regard to illness of defendant No.1, but at the same time the Court relied on certain „circumstances‟ and held that they C.R.P. Nos.26 and 27 of 2007 Page 24 of 71 6. proved the illness of defendant No.1. We may examine the legality or otherwise of such a finding. taken one of if that was so lower Court has The the circumstances that the plaintiff putforth a case that on the date of hearing or to be precisely on 30.6.1987, defendant No.1 was present in the Court and that on previous occasions during the alleged period of her illness and treatment she was seen by the plaintiff at Bhubaneswar. The Court observed that it was imperative on the part of the plaintiff to draw the attention of the Court about such presence of defendant No.1. By observing this it is apparent that the Court shifted onus of proving the fact of illness from defendant No.1 to the plaintiff which is not permissible under law. It became completely oblivious of the position of law that the illness of defendant No.1 as a fact during the relevant period was to be proved by her unless there was specific admission of such illness by the plaintiff. Therefore, for issue before examination was whether defendant No.1 laid convincing evidence to satisfy the Court that she suffered from illness during the said period. There was no better evidence from the side of the defendants to prove her illness and it was only an oath versus oath. That apart, evidence of defendant No.1 in the cross-examination shows that she had no knowledge or idea about certain facts put in the cross-examination. Law is well settled that in civil litigations the Court is supposed the existence or otherwise of a particular fact on the basis of to believe the Court the C.R.P. Nos.26 and 27 of 2007 Page 25 of 71 to bring about preponderance of probabilities of the facts in respect of which evidence is laid. In my view, these defendant No.1 failed probabilities. On this point I feel apposite to refer the decision in the case of Ananta Mishra Vrs. Utama Dibya, AIR 1969 Ori 183, wherein this Court while dealing with the case of setting aside ex-parte decree observed that the Court failed to bestow attention on crucial factors in evidence which according to the Court might have lent some probability to the defence version that there was no service of summon. In the case at hand, the sole version of defendant No.1 about her illness should not have been accepted as proving fact of illness so as to consider the same as sufficient cause for non- appearance.” 7. Per contra, Sri Sisir Das, learned Advocate being assisted by Ms. Shradha Das learned Advocate on behalf the opposite parties submitted that the learned Civil Judge (Senior Division), having aptly exercised his jurisdiction and applied judicial discretion in appropriate manner, no flaw in the judgment of the learned Court could be imputed to contend that the order of setting aside the ex parte decree on appreciation of evidence on record is erroneous. 7.1. Ms. Shradha Das, learned counsel would submit that the factual matrix leading to filing of petition under Order IX, Rule 13 of the CPC has not been disputed by C.R.P. Nos.26 and 27 of 2007 Page 26 of 71 the petitioner neither before the learned Civil Judge, Senior Division nor before this Court in this revision petition. It is contended that the argument of Sri Sunkuru Sudhakar Rao, learned Senior Advocate that the opposite parties have participated in the proceeding before the trial Court, but on the date of hearing chose not to be present, as a consequence of which the opposite parties have suffered decree, cannot be countenanced inasmuch as plausible reason has been appreciated by the learned Civil Judge, Senior Division. 7.2. Taking this Court to the impugned Order dated 27.02.2007 passed in CMA Nos.31 of 2004 and 32 of 2004, on the basis of pleadings, the learned Civil Judge (Senior Division) has taken cognizance of the fact “while discussing about their society matter with the Deputy Superintendent of Police, Vigilance he was informed about institution of the suit bearing No.M.S. No.59/2001 and on enquiry he came to know that the ex parte decree has been passed against their society in the above suit vide Order dated 23.11.2003. As summons has not been duly served upon them, there was no chance before them to know about institution of the suit and for that no step could be taken on behalf of their society” and found that within reasonable period the petition under Order IX, Rule 13 C.R.P. Nos.26 and 27 of 2007 Page 27 of 71 of the CPC was filed. The explanation proffered by the opposite parties being sufficient and reasonable, the exercise of power by the learned Civil Judge, Senior Division cannot be found fault with. 7.3. She would submit that the law is well settled that only jurisdiction of the trial Court alone or a lack of it can be a ground to invoke a remedy of revision under Section 115 of the CPC, albeit the petitioner has made allegation before this Court that the learned trial Court has acted without jurisdiction. Nevertheless, in the case at hand since the ex parte decree in MS No.59 of 2001 was passed by the learned Civil Judge (Senior Division), Berhampur, in order to afford an opportunity to the opposite parties after being properly constituted and after breaking open the office and reconstitution of the record— as the earlier incumbent did not hand over the files and records— the said Court has not committed any illegality in exercising its jurisdiction while setting aside the ex parte decree by condoning the delay in preferring the petition under Order IX, Rule 13 of the CPC. Hence, she made valiant attempt to justify the impugned Order and fervently prayed to dismiss both the civil revision petitions being devoid of merit. 7.4. To contest the averments of the petitioner, Ms. Shradha Das, learned Advocate joined with Sri Sisir C.R.P. Nos.26 and 27 of 2007 Page 28 of 71 Das, learned Advocate that the expression “he was prevented by any sufficient cause from appearing when the suit was called on for hearing” employed in the provision under Rule 13 of Order IX, CPC, does require liberal construction and discretion is vested in the court concerned to set aside the ex parte decree. The factual details coupled with the material available on record that the report of process server clearly stating that the premise of the opposite parties-society being under lock and key, leading to comprehend that there was sufficient cause for the opposite parties to appear before the Court when the suit was called on for hearing, it cannot be construed that the learned Civil Judge, Senior Division has exercised his power with due conscientious application of mind. When there is no negligence or inaction on the part of the opposite parties is demonstrated by the petitioner before the learned Civil Judge, Senior Division, the impugned order being passed in accordance with law, it cannot be said to have suffered material irregularity. 7.5. To buttress submission, Sri Sisir Das, learned counsel assisted by Ms. Shradha Das, learned Advocate appearing for the opposite parties has relied on the decisions of the Hon‟ble Supreme Court of India as well as of this Court in the cases of Major S.S. Khanna Vrs. Brig. F.J. Dillon, AIR 1964 SC 497 = (1964) 4 SCR C.R.P. Nos.26 and 27 of 2007 Page 29 of 71 409, Pandurang Dhondi Chougule Vrs. Maruti Hari Jadhav, AIR 1966 SC 153, G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54, Kishore Kumar Parichha Vrs. Orissa State Civil Supplies Corporation Ltd., 118 (2014) CLT 671. Provisions of Order V, Rule 20 and Order IX, Rule 13 of the Code of Civil Procedure: 8. The provisions of Order V, Rule 20 stands thus: “20. Substituted service.— (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) Effect of substituted service.— C.R.P. Nos.26 and 27 of 2007 Page 30 of 71 Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed.— Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.” 8.1. Order IX, Rule 13 reads as under: “13. Setting aside decree ex-parte against defendant.— In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had C.R.P. Nos.26 and 27 of 2007 Page 31 of 71 notice of the date of hearing and had sufficient time to appear and answer the plaintiff‟s claim. Explanation.— Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.” Consideration of the rival contentions and submissions: 9. It is the case of the opposite parties that when sufficient cause was shown for non-appearance before the court when the matter was called for hearing, the discretion applied in favour of the society by the learned Civil Judge, Senior Division cannot be faulted with. The reason for non-appearance was internal dispute. The defendant who was in-Charge of the suit and taking steps did not choose to take appropriate action. The opposite parties made it clear in the counter affidavit that the Registrar of Cooperative Societies in his camp Order dated 17.03.2003 directed Malay Kumar Das, the then Cooperative Extension Officer, Phulbani Block to function as Secretary in addition to his usual duties pursuant to which Sri Das joined on 20.10.2003. But, Sri Bishnu Charan Pradhan, Ledger Clerk, who was functioning as in- C.R.P. Nos.26 and 27 of 2007 Page 32 of 71 Charge Secretary did not hand over the charge and the office premise was under lock and key and the concerned records were under custody of said Bishnu Charan Pradhan. Later in terms of Section 33 of the Odisha Cooperative Societies Act, 1962, authorised staff of Assistant Registrar Cooperative Societies, Phulbani broke open and recovered records. However, the records concerning suit were not available. It is asserted that no records concerning aforenoted money suit was ever been received by the incumbent- Secretary. It is during discussion with the Deputy Superintendent of Police, Vigilance, Phulbani the matter could come to fore and thereafter the opposite parties have taken effective steps. As such the petition under Order IX, Rule 13 of the CPC to set aside the ex parte decree dated 28.11.2003 along with application for condonation of delay was filed. To countenance such fact, the opposite parties have placed on record the Letter dated 19.01.2004 issued by the Collector, Kandhamal, Phulbani-cum-President, Agency Marketing Co-operative Society Ltd., Tikabali, which reads as under: “Sri Bishnu Charan Pradhan, Ledger Clerk-cum-ex-in- Charge Secretary of Agency Marketing Co-operative Society Ltd. is hereby placed under suspension with immediate effect pending framing of draft charges. His Headquarters during suspension period is fixed at C.R.P. Nos.26 and 27 of 2007 Page 33 of 71 Phulbani under the administrative control of the President, Agency Marketing Co-operative Society Ltd. He shall not leave the headquarters without obtaining previous permission of the President of the Society.” Document showing inventory of records and register recovered from the custody of said Sri Bishnu Charan Pradhan has also been enclosed to the revision petition for perusal and consideration of the fact that records relating to suit was not available. 10. With the aforesaid narration of undisputed facts, no rejoinder to refute the contentions based on aforesaid evidence on record was filed by the petitioner. Perusal of Order dated 27.02.2007, which is under challenge herein, reveals that the summons on the defendants- opposite parties were not served personally, but recourse to substituted service was taken by publication in the newspaper. When the opposite parties could make out a case of no negligence, but for the situation beyond control, this Court is satisfied that the learned Civil Judge, Senior Division has applied his discretion judiciously and exercised his jurisdiction within parameters of law. 10.1. As a precept in the context of Order IX, Rule 13, CPC, regard may be had to the decision rendered by the Hon‟ble Supreme Court of India rendered in the case C.R.P. Nos.26 and 27 of 2007 Page 34 of 71 of Parimal Vrs. Veena @ Bharti, (2011) 2 SCR 648, wherein it has been laid down as follows: “8. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The Legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 9. intended. Therefore, word „Sufficient Cause‟ is an expression which has been used in large number of Statutes. The meaning of the word „sufficient‟ is „adequate‟ or „enough‟, in as much as may be necessary to answer the „sufficient‟ purpose embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, „sufficient cause‟ means that party had not acted in a negligent manner or there was a want of bona fide on in view of the facts and circumstances of a case or the party cannot be alleged to have been „not acting diligently‟ or Page 35 of 71 its part C.R.P. Nos.26 and 27 of 2007 it has „remaining inactive‟. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, to be exercised judiciously. (Vide: Ramlal Vrs. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat Vrs. Ramgiri Gosavi, AIR 1968 SC 222; Surinder Singh Sibia Vrs. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industrial Industries Limited Vrs. Gujarat Development Corporation, (2010) 5 SCC 459). In Arjun Singh Vrs. Mohindra Kumar, AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a „good cause‟ and „sufficient cause‟ is that the requirement of a good cause is complied with on a lesser degree of proof than that of a „sufficient cause‟. (See also: Brij Indar Singh Vrs. Lala Kanshi Ram, AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. Vrs. Bhutnath Banerjee, AIR 1964 SC 1336; and Mata Din Vrs. A. Narayanan, AIR 1970 SC 1953). 10. 11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial the parties justice concerned and that the technicalities of the law should not prevent from doing substantial justice and doing away the illegality judgment the basis of perpetuated on impugned before it. (Vide: State of Bihar Vrs. Kameshwar Prasad Singh, AIR 2000 SC 2306; the court to all the C.R.P. Nos.26 and 27 of 2007 Page 36 of 71 Madanlal Vrs. Shyamlal, AIR 2002 SC 100; Davinder Pat Sehgal Vrs. M/s. Partap Steel Rolling Mills (P) Ltd., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao Vrs. Gobardhan Sao, AIR 2002 SC 1201; Kaushalya Devi Vrs. Prem Chand, (2005) 10 SCC 127; Srei International Finance Ltd. Vrs. Fair growth Financial Services Ltd., (2005) 13 SCC 95; and Reena Sadh Vrs. Anjana Enterprises, AIR 2008 SC 2054). 12. In order to determine the application under Order IX, Rule 13, CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait- jacket formula of universal application.” 10.2. In P.R. Ramaswami Gounder, Memorial Trust, represented by Trustees Vrs. M/s. Kasturi Travels, Proprietor Neena Sha, 2011-3-LW 545, the Madras High Court on analysis of Order V, Rule 20, CPC observed as follows: “9. At the outset, it has to be pointed out that the alleged service of summons by the Process Server by affixure on the outer door of the suit property and the return of the service sent through post C.R.P. Nos.26 and 27 of 2007 Page 37 of 71 “door the postal endorsement with locked intimation delivered” have not been considered to be sufficient service by the Executing Court and that is the reason why substituted service has been ordered by way of publication in the newspaper. It is also pertinent to point out that the summons through Court and notice by post have been ordered only once. Since, as aforesaid, the summons sent through Court and the notice sent by post have not been considered to be sufficient by the Executing Court itself, the contention of the learned senior counsel for the petitioners that the same will amount to proper service cannot be countenanced and the decisions referred to and relied upon by the learned senior counsel has no relevance. *** 15. A reading of the aforesaid provisions shows that before the power under this rule is exercised and substituted service of summons is ordered, one of the following conditions must be fulfilled to the satisfaction of the Court, (i) the defendant is keeping himself away to is avoid service of summons; or (ii) for any other reason, the summons cannot be served in the ordinary way; Non-fulfilment of either condition necessary for exercise of power would amount to material irregularity and the order is liable to be set-aside. Before substituted service is ordered, the Court must be satisfied that the condition precedent C.R.P. Nos.26 and 27 of 2007 Page 38 of 71 required for exercise of power existed, namely, that the defendant was keeping himself away with a view to avoid service of summons or, for any other reason, summons cannot be served in the ordinary way. The Court should record such finding though recording of reasons may not be necessary. 16. The words “for any other reason” found in Order V Rule 20 (1) of the CPC are wide enough to cover cases wherein courts may order substituted service where a summons cannot be served in the ordinary way. The defendant may not be avoiding or evading service of summons and yet it may not be practicable to effect personal service upon him, e.g., where the defendant is a pardanashin lady, or is missing, or her whereabouts are not known, or defendants are unascertained, or it could not be ascertained whether they are dead or alive, or the defendant is residing at a place occupied by enemy country. In such cases, the power under this rule can be exercised by the Court. 17. It has to be pointed out that a perusal of the materials available on record does not reveal that the Court below has recorded its satisfaction that the respondents were keeping out of the way and are avoiding service of summons. Therefore, substituted service ordered by the Execution Court is not in accordance with Order V, Rule 20 of the CPC. *** 22. In these cases, the respondents have approached the Court immediately within the statutory time C.R.P. Nos.26 and 27 of 2007 Page 39 of 71 specified and in such circumstances, the discretion is normally exercised in their favour, provided the absence was not mala fide or intentional. When the Court below has come to the conclusion that the service of summons on the respondent is not sufficient or proper and the Court below has rightly exercised its judicial discretion, this Court is not inclined to interfere with the order passed by the Court below. It is well settled that a party to a proceeding should be afforded with a fair opportunity to contest the case on merits.” 10.3. In such view of the matter, this Court finds that the learned Civil Judge, Senior Division has applied his conscientious mind and seemly observed that “though it is not always possible to lay down that only because substituted service was resorted to and effected, knowledge on the part of the defendant must always stand ruled out and knowledge is inferable if the facts and circumstances of the case warrants the same”. 10.4. From the facts that the in-Charge Secretary who was looking after the suit created mischief and by intervention of the Registrar of Cooperative Society, new Secretary took over the charge by breaking the lock to recover the records and it is only when during the discussion about the vigilance case the fate of the suit could come to the knowledge of the opposite parties, there does not seen any negligence or deliberate avoidance to appear before the Court when C.R.P. Nos.26 and 27 of 2007 Page 40 of 71 the matter was called for hearing. It is also pertinent to make observation that the petitioner has not imputed mala fides against the opposite parties. 10.5. It may also be pertinent to take note from the pleadings available on record that no material is placed by the petitioner to demonstrate that the summons on the opposite parties were duly served and in the factual scenario there could have been any presumption regarding information to them about the pendency of the suit. The revision petition preferred does not disclose as to what efforts were made to serve the notice upon the opposite parties-defendants personally. That apart, no grounds were set forth in the application as to why the personal service could not be effected. 10.6. In Tea Auction Ltd. Vrs. Grace Hill Tea Industry, (2006) 12 SCC 104 in the context of Order IX, Rule 13, CPC, it is stated thus: “In G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54 a similar question came up for consideration. A Division Bench of this Court opined that the provision under Order IX Rule 13 of the Code of Civil Procedure should receive a broad construction and no hard-and-fast guidelines can be prescribed. The courts have a wide discretion to set aside an ex parte decree on satisfying itself as regards existence of a “sufficient cause”, opining: C.R.P. Nos.26 and 27 of 2007 Page 41 of 71 „12. 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 immediately and within the statutory time specified, the in his discretion 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.‟ is normally exercised the court *** 15. Order IX Rule 13 CPC did not undergo any amendment in the year 1976. The High Courts, for a long time, had been interpreting the said provision as conferring power upon the courts to issue certain directions which need not be confined to costs or otherwise. A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also on other attending facts and circumstances. It may also consider the question as to whether C.R.P. Nos.26 and 27 of 2007 Page 42 of 71 or harshly the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith. But, it would not be correct to hold that no error has been committed by the Division Bench in holding that the learned Single Judge did not possess such power. The learned Single Judge exercised his discretionary jurisdiction keeping in view that the matter had been disposed of in fact finally at the interim stage at the back of the defendant and it was in that view of the matter a chance was given to it to defend the suit, but, then the learned Single Judge was not correct to direct securing of the entire sum of Rs 37 lakhs in the form of bank guarantee or deposit the sum in cash. The condition imposed should have been reasonable. What would be reasonable terms would depend upon the facts and circumstances of each case.” 10.7. In the case of Major S.S. Khanna Vrs. Brig. F.J. Dillon, AIR 1964 SC 497 = (1964) 4 SCR 409 the Hon‟ble Supreme Court of India has observed as follows: “32. The power given by Section 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction. It does not comprehend the power exercisable under the writ of Prohibition or mandamus. It is also not a full power of Certiorari C.R.P. Nos.26 and 27 of 2007 Page 43 of 71 inasmuch as it arises only in a case of jurisdiction and not in a case of error. It has been ruled by the Judicial Committee and also by this Court that the section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision cannot be corrected for it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly. But once a flaw of jurisdiction is found the High Court need not quash and remit as is the practice in English law under the writ of certiorari, but pass such order as it thinks fit.” 10.8. In the case of Pandurang Dhondi Chougule Vrs. Maruti Hari Jadhav, (1966) 1 SCR 102 = AIR 1966 SC 153, the Hon‟ble Supreme Court of India has observed as follows: “10. The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As clauses (a), (b) and (e) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or C.R.P. Nos.26 and 27 of 2007 Page 44 of 71 has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under Section 115.” 10.9. While discussing Section 115 of the CPC and proviso thereto it has been held in Tek Singh Vrs. Shashi Verma, (2019) 16 SCC 678 by the Hon‟ble Supreme Court that revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders and observed: “Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In DLF Housing & Construction Co. C.R.P. Nos.26 and 27 of 2007 Page 45 of 71 (P) Ltd. Vrs. Sarup Singh, (1969) 3 SCC 807 = (1970) 2 SCR 368 this Court held: (SCC pp. 811-12, para 5) „5. The position thus seems to be exercising that while firmly established the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.” C.R.P. Nos.26 and 27 of 2007 Page 46 of 71 10.10. Relying on Sushil K. Chakravarty Vrs. Tej Properties Pvt. Ltd., AIR 2013 SC 1762, it has been submitted by Sri Sunkuru Sudhakar Rao, learned Senior Advocate that the society being represented by competent person took part in the suit and the successor-Secretary cannot feign ignorance about the outcome of the suit. On analysis of facts in the reported judgment, the Hon‟ble Supreme Court of India culled out that the legal representative of the deceased brother had full knowledge of the pending litigation between Sushil K. Chakravarty and Tej Properties much earlier. Nonetheless, in the present case, the functioning of the opposite parties-society was undergoing disturbance and after intervention of the Registrar of Cooperative Societies the Secretary took charge, but the earlier Secretary (in-Charge) did not hand over the charge. The facts obtained in the instant case are dissimilar to the facts narrated in the Sushil K. Chakravarty (supra). 10.11. Next case which was relied on by the learned Senior Counsel was Anima Mishra Vrs. S. Venkaratnam, 1997 (II) OLR 288. Said case proceeded on the basis of fact that “opposite party No.1 alone examined herself. Though the medical certificate are on record, those have not been proved nor the doctors issuing them were examined, nor any person or any C.R.P. Nos.26 and 27 of 2007 Page 47 of 71 neighbour who might have been acquainted with the fact of illness of the defendant No.1 was examined to corroborate the version of defendant”. Under the said factual scenario, this Court came to hold that there was material irregularity committed by the Court in conducting the proceeding. In the instant case the fact is quite different and distinct. 10.12. It is further argued by the learned Senior Advocate Sri Sunkuru Sudhakar Rao placing reliance on Indian Bank Vrs. B. Patnaik Mines (P) Ltd., AIR 2003 Ori 81 that as the death of one of the directors would not abate suit, in the similar fashion change of Secretary of the society cannot lead to infer that the society is not within its knowledge with respect to suit. At this stage it may be fruitful to refer to paragraph 6 of the civil revision petition under which the petitioner merely contended that “two witnesses were examined in support of the application filed under Order IX, Rule 13, CPC by opposite party No.1. P.W. 2 in his evidence has stated that he took charge of the post as Branch Manager in the month of July, 2003 but before that he was the clerk in the very same branch”. Even such a stance of the petitioner to falsify the plea of knowledge of outcome of suit on the date of discussion with the Deputy Superintendent of Police (Vigilance) cannot be countenanced inasmuch as the records were under C.R.P. Nos.26 and 27 of 2007 Page 48 of 71 the custody of the Secretary (in-Charge) who did not hand over the same despite the orders of the Registrar of Cooperative Society. The document at Annexure-A to the counter affidavit, i.e., letter dated 19.01.2004 of the Collector, Kandhamal, Phulbani-cum-President, Agency Marketing Co-operative Society Ltd., Tikabali stands to the testimony to the fact that Sri Bishnu Charan Pradhan, Ledger Clerk-cum-Ex. In-Charge Secretary has been put under suspension pending framing of charges. 10.13. At this juncture regard may be had to following dicta of the Hon‟ble Supreme Court of India in the case of Union of India Vrs. Arulmozhi Iniarasu, (2011) 7 SCC 397: “Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid‟s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or C.R.P. Nos.26 and 27 of 2007 Page 49 of 71 different fact may make a world of difference between conclusions in two cases.” 10.14. Under such delineated legal perspective, it is perceived that the learned Civil Judge (Senior Division) has appropriately considered the facts and material available on record and proceeded to come to conclusion that there was no negligence nor inaction imputable to the opposite parties-society for non- appearance when the matter was called for hearing and it was only on the date of discussion with the Deputy Superintendent of Police the termination of suit proceeding could come to fore. Thus, this Court does not find any irrationality nor illegality in exercise of jurisdiction by the learned Civil Judge (Senior Division). 11. So far as the consideration of the petition for condonation of delay in filing the petition under Order IX, Rule 13, CPC is concerned, it would suffice to notice that the reason for both the petitions are same and therefore, the learned Civil Judge (Senior Division) has passed common order disposing of both the petitions. 11.1. It is submitted by the learned Senior Counsel for the petitioner that the decree being passed on 28.11.2003, the petition for Order IX, Rule 13 of the CPC was required to be filed by the society within thirty days C.R.P. Nos.26 and 27 of 2007 Page 50 of 71 from the date of decree. Such an argument is contested by Ms. Shradha Das, learned Advocate for the society arguing on behalf of Sri Sisir Das, learned Advocate that it is fallacious to contend that the society had not filed petition under Order IX, Rule 13 of the CPC within period stipulated. She strenuously urged that mere alleging delay in filing said petition without laying foundation for such plea with evidence would not entail this Court to examine whether the Civil Judge (Senior Division) was justified in exercised his jurisding with material irregularity. 11.2. Article 123— “THIRD DIVISION— APPLICATIONS— PART-I— APPLICATIONS IN SPECIFIED CASES— of the Schedule appended to the Limitation Act, 1963, runs as follows: Description of application Period of limitation Time from which period begins to run 123 To set aside a decree passed ex parte or Thirty days The date of the decree To re-hear an appeal decreed or heard ex parte Explanation.— For the purpose of this substituted article, C.R.P. Nos.26 and 27 of 2007 Or Notice was not duly served, when the applicant had knowledge of Page 51 of 71 the decree service under Rule 20 of Order V of the Code Procedure, of Civil 1908 shall not be deemed to be due service. 11.3. On having glance at aforesaid article of the Limitation Act, it is unambiguous that the period stipulated for filing petition under Order IX, Rule 13 of the CPC would commence from the date of knowledge where the notice was not duly served and for the said purpose “substituted service” under Order V, Rule 20 of the CPC “shall not be deemed to be due service”. 11.4. The legal fiction created in the provision contained in article 123 of the Schedule appended to the Limitation Act does require consideration appropriately. 11.5. Use of the phrase „as if it had been made on the defendant personally‟ in clause (2) of Rule 20 of Order V, CPC is of considerable significance. It is a deeming provision and creates a legal fiction. 11.6. The word „Deemed‟ as per Worcester Dictionary, is: „deemed’ “The word in various senses. is used Sometimes it means „generally regarded’. At other time it signifies „taken conclusively to be‟. Its various meanings are to been to be hold in belief, estimation, or opinion; to judge; adjudge; decide; consider to be; to C.R.P. Nos.26 and 27 of 2007 Page 52 of 71 have or to be of an opinion; to esteem; to suppose; to think, decide or believe on consideration; to account; to to conclude upon regard; consideration.” to adjudge or decide; In Words & Phrases, Permanent Edition, Vol. 11A, page 181, the word „deemed‟ has been described to mean „regarded as being‟; it is equivalent to „shall be taken to be‟. 11.7. The legal fiction created by a deeming clause has been subject matter of consideration in a number of judicial precedents. In an oft-quoted passage from East End Dwellings Co. Ltd. Vrs. Finsbury Borough Council, (1951) 2 All ER 587 (HL), it has been stated: “If you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had, in fact, existed must from or accompanied it. ... The statute states that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” inevitably have flowed In Bhuwalka Steel Industries Ltd. Vrs. Union of India, (2017) 5 SCC 598 reference of St. Aubyn Vrs. Attorney General, 1952 AC 15 = (1951 2 All ER 473 (HL) was made and the relevant portion is quoted hereunder from said Judgment: C.R.P. Nos.26 and 27 of 2007 Page 53 of 71 “The word „deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.” In Rishabh Agro Industries Ltd Vrs. P.N.B. Capital Services Ltd, (2000) 5 SCC 515, in the context of Section 441 of the Companies Act, 1956, the following meaning has been culled out: “The word „deemed’ as used in Section 441 of the Act means „supposed’, „considered’, „construed’, „thought’, „taken to be‟ or „presumed’.” In Ram Prakash Khanna Vrs. S.A.F. Abbas, AIR 1972 SC 2350 = (1972) 1 SCC 784, the Supreme Court of India, while dealing with Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, held as follows: “The use of word „deemed‟ in the rule indicates that the Government has the power to make a retrospective declaration because, it is only after promotion that there is any occasion to consider whether the period of officiation prior to promotion will be counted for purpose of seniority.” C.R.P. Nos.26 and 27 of 2007 Page 54 of 71 In State of Karnataka Vrs. Shri Ranganatha Reddy, AIR 1978 SC 215, it has been observed as follows: “The use of word „deemed‟ does not invariably and necessarily imply an introduction of a legal fixation but it has to be read and understood in the context of the whole statute.” In Consolidated Coffee Ltd Vrs. Coffee Board, AIR 1980 SC 1468, the observation of the Supreme Court runs as follows: “A deemed provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail.” When a deeming provision is in operation, the Court is to keep in mind the principle of interpretation of a deeming clause. Whenever a deeming clause occurs in a statute and the Court is called upon to interpret the same, the Court has to first ascertain the purpose for which such deeming clause has been incorporated. Normally a deeming clause is created by way of a legal fiction. Therefore, the Court is to first ascertain the purpose behind the legal fiction. After ascertaining the purpose, the Court must assume those consequences, which are incidental and inevitable corollaries for giving effect to such legal fiction. See, Penguin Trading & Agencies Ltd. Vrs. State of Orissa, 2007 (Supp.-I) OLR 738. C.R.P. Nos.26 and 27 of 2007 Page 55 of 71 In Ashok Leyland Ltd. Vrs. State of TN, (2004) 134 STC 473 (SC) it is propounded that when a legal fiction is created it must be given its full effect. Reference may also be had to East End Dwelling Co. Ltd. Vrs. Finsbury Borough Council, (1951) 2 All ER 587; State of Bombay Vrs. Pandurang Vinayak, AIR 1953 SC 244; Commissioner of Income Tax Vrs. S. Teja Singh, AIR 1959 SC 352; M. Venugopal Vrs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P., (1994) 2 SCC 323; Indian Oil Corporation Limited Vrs. Chief Inspector of Factories, (1998) 5 SCC 738, Voltas Limited, Bombay Vrs. Union of India, (1995) Supp. 2 SCC 498, Harish Tandon Vrs. Additional District Magistrate, Allahabad, U.P., (1995) 1 SCC 537; G. Viswanathan Vrs. Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras, (1996) 2 SCC 353; Bhavnagar University Vrs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 = (2002) 4 Suppl. SCR 517. 11.8. The legal fiction created in article 123 of the Schedule to the Limitation Act, 1963 juxtaposed with clauses (1A) and (2) of Rule 20 of Order V of the Code of Civil Procedure, 1908 dealing with “substituted service” that the presumption of valid service of notice by publication in the newspaper could be rebutted by proper explanation. The learned Civil Judge (Senior Division) appreciated on evidence that there could not C.R.P. Nos.26 and 27 of 2007 Page 56 of 71 have been valid service of notice (substituted service) in view of the factual matrix of the matter that the premise was under lock and key by the Secretary (in- Charge) who did not even oblige to hand over the charge immediately to the Secretary who joined the society pursuant to the Camp Order dated 17.10.2003 of the Registrar Co-operative Societies, Odisha, Bhubaneswar. This apart the record reveals that such case record relating to the suit was not enumerated in the inventory list of records (Annexure-B to the counter affidavit). Therefore, the date of knowledge of the present incumbent is considered to be the starting point of limitation for the purpose of article 123 of Schedule to the Limitation Act. 11.9. It is noteworthy to indicate that proof of service of summons is essential condition for proceeding ex parte against the concerned party. If on perusal of the record of the case in hand the learned Civil Judge (Senior Division) came to satisfy that there was no physical service of notice taking note of the report of process server, there is no apparent irregularity or illegality committed in exercising the discretion vested in considering petition under Order IX, Rule 13, CPC. 11.10. It is as a matter of fact returned by the Civil Judge (Senior Division) that summons was not served on the society personally, but the petitioner had taken C.R.P. Nos.26 and 27 of 2007 Page 57 of 71 steps for substituted service by way of publication in the newspaper. It is also recorded that the report of the process server indicated that the office of opposite parties-society was under lock and key and it was shifted to some other place. Therefore, the learned Civil Judge (Senior Division) observed that “I think the defendant may not be in a position to know about the suit initiated against him”. Thus, in terms of article 123 of Schedule appended to the Limitation Act, the limitation ticks from the date of knowledge. 11.11. In Jaganji Vrs. Bandan, AIR 1930 Allahabad 397, it has been held that the limitation period commenced from the time the misconduct of agent came to the knowledge of the plaintiff, which in that case was when the agent instituted a suit against the plaintiff claiming entitlement to certain amounts. 11.12. P.R.N. Palaniappa Chetty Vrs. P.M.R.M. Firm, AIR 1914 Lower Burma 173 was a case where the Court observed that the limitation period under Article 90 of the Limitation Act would run from the time when the plaintiff has knowledge of some misconduct and the words “become known” in Article 90, should not be read as “should have become known”. 11.13. The judgment of the Hon‟ble Supreme Court of India in Standard Chartered Bank Vrs. Andhra Bank C.R.P. Nos.26 and 27 of 2007 Page 58 of 71 Financial Services Ltd., (2016) 1 SCC 207 is also clear to this effect that mere suspicion of knowledge is not enough but the knowledge has to be actual knowledge. The relevant extract from the said judgment is set out herein below: “21. We are unable to agree with this contention advanced by the learned Senior Counsel on behalf of the respondents. A perusal of Article 91(a) of the Limitation Act shows that it is meant to apply to specific movable property. It further stipulates that the period of limitation shall start running from the date when the person “first learns” about the conversion of the movable property. While it is true that the word used in the said Article is “first learns” and not knowledge, it is difficult to construe the word “first learns” without attributing to it a certain degree of knowledge. The degree or the extent of knowledge is the subject-matter of controversy in the instant case. Article 91(a) of the Limitation Act was the subject-matter of controversy also in K.S. Nanji and Co. Vrs. Jatashankar Dossa, AIR 1961 SC 1474 wherein the terms of the Article were interpreted by this Court as under: (AIR p. 1478, para 11) „11. *** The article says that a suit for recovery of specific movable property acquired by conversion or for compensation for wrongful taking or detaining of the suit property should be filed within three years from the date when the person having the right to the possession of the property first learns in whose possession it is. The question is, on C.R.P. Nos.26 and 27 of 2007 Page 59 of 71 property to prove the burden whom the said knowledge lies? The answer will be clear if the article is read as follows: A person having the right to the possession of a property wrongfully taken from him by another can file a suit to recover the said specific movable for compensation therefor within three years from the date when he first learns in whose possession it is. Obviously where a person has a right to sue within three years from the date of his coming to know of a certain fact, it is for him to prove that he had the knowledge of the said fact on a particular date, for the said fact would be within his peculiar knowledge.‟ or The provision of Article 91(a) of the Limitation Act thus demands two things. First is knowledge on the part of the plaintiff, and second, that the said fact be within his peculiar knowledge. We agree the contention advanced by Mr Ram with Jethmalani, the learned Senior Counsel on behalf of the appellant, that the term “first learns” places a burden of knowledge which is rather specific in nature. Thus, the knowledge must be of the identity of a specific person in whose possession the bonds are and that he acquired the possession of the said bonds under an arrangement, which in law would constitute wrongful conversion. The knowledge of a specific person against whom the suit can be instituted is what is crucial here. A mere suspicion or a whisper of knowledge is not enough for the period of limitation to start running. Point (i) is thus, answered accordingly.” C.R.P. Nos.26 and 27 of 2007 Page 60 of 71 11.14. In Gauhati University Vrs. Niharlal Bhattacharjee, (1995) 6 SCC 731 it has been stated thus: “6. It is seen that though notice was served on the appellant on 28.05.1990 and the date fixed for appearance was 29.05.1990, there was no time much less sufficient, to reach the court for appearance on that date. While adjourning the suit to 19.07.1990, the said date was not communicated to the appellant, as envisaged in clause (c) of Rule 6 of Order IX. Thus, the summons was not duly served. The limitation began to run only when the appellant had knowledge of the ex parte decree. From the date of the knowledge, admittedly, the application was filed within 30 days. The courts below had not adverted to this aspect from this perspective.” 11.15. In Pati Rakhan Vrs. Chandrani Devi, 2021 SCC OnLine All 143 it has been observed as follows: “20. This court, in the case of Yashoda Devi Vrs. Special/Additional District Judge, Pratapgarh 2008 (26) LCD 1, has held that the period of limitation will start to run from the date of knowledge of contents of ex parte decree and not from the date of mere knowledge of ex parte decree. 21. This court, in the case of Ramautar Vrs. Board of Revenue, Allahabad 2016 (34) LCD 2724, after considering the effect of Article 123 of the Limitation Act held that limitation of 90 days has been provided from the date of the decree where summons or notice was duly served and when C.R.P. Nos.26 and 27 of 2007 Page 61 of 71 summons or notice was not duly served then 90 days from the date of knowledge of exparte decree and held that the application under Order IX Rule 13 CPC filed on 01.08.2013 for setting aside the order dated 31.01.1981 was within time from the date of knowledge of the decree and ignored the delay of 30-32 years. that is now well settled 22. The Hon‟ble Apex Court, in the case of Jeet Narain Vrs. Govind Prasad, (2010) 110 RD 374 held that fraud unravels it everything and observed that the courts below have rejected the claim of the appellant therein only on the ground of limitation and they have not considered the dispute on merit. Therefore while considering the application for condonation of delay the merit of the case is also liable to be seen.” 11.16. The above decisions thus, make it amply clear that the language in article 123 of the Schedule to the Limitation Act clearly means limitation to run from the date of knowledge. The opposite party has clearly stated in the counter affidavit in civil revision petition bearing No.27 of 2007 that “during the discussion with the Deputy Superintendent of Police (Vigilance), Phulbani, he came to know about money suit and then without wasting time, he applied for the certified copy of the case record and took prompt steps in filing an application in the Hon‟ble Court of Civil Judge (Senior Division), Phulbani praying to set aside the ex parte decree”. Such a fact is not controverted by the Page 62 of 71 C.R.P. Nos.26 and 27 of 2007 petitioner by way of rejoinder or placing any iota of evidence to dislodge such statement. Such plausible explanation being sufficient to condone the delay in filing petition under Order IX, Rule 13, CPC, this Court finds no illegality in exercise of discretion by the learned Civil Judge (Senior Division). 11.17. In Kishore Kumar Parichha Vrs. Odisha State Civil Supplies Corporation Ltd., 118 (2014) CLT 671 it has been observed as follows: complete this Court “9. Referring to the judgment in G.P. Srivastava Vrs. Shri R.K. Raizada, 2000 (I) OLR (SC) 485 = AIR in Khetrabasi 2000 SC 1221, Srichandan Vrs. Gopinath Srichandan, 2008 (Supp.II) OLR 821 held that the word “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do the parties justice between particularly when no negligence or inaction is imputable to erring party. “Sufficient cause” for the purpose of Order IX, Rule 13, CPC has to be construed as elastic expression for which no hard and fast guidelines can be prescribed and the in deciding the Courts have wide discretion sufficient cause keeping in view the peculiar facts and circumstances of each case. In the case in hand, it is the admitted fact that the defendant- petitioner had received the notice and on receipt of the notice, he engaged his lawyer namely, Sri Rajani Kanta Bhoi, who was taking steps day to day. But fact remains, the lawyer having died, the petitioner could not get any information about the Page 63 of 71 C.R.P. Nos.26 and 27 of 2007 position of the case and when he came to Court then only it was brought to his notice that his lawyer has already died and nobody is there to intimate him and by the time it was brought to his knowledge, the suit has already been set ex parte and ex parte decree has already been passed against him. 10. in Pramod Kumar In similar circumstances, Sharma Vrs. Upendra Kumar Agarwal, 1995 (I) ALT 539 the High Court of Andhra Pradesh in paragraph 6 has held as follows: liberal. When a matter „On a careful examination of the facts and circumstances of the case, although the learned trial Judge has given adequate and perhaps even convincing reasons to technically hold that the defendants had failed to show sufficient cause to condone the delay for filing the petition for setting aside the ex parte decree, this Court having been persuaded by the decision of the Supreme Court supra, feels that the learned trial Judge could have been, more is entrusted to an Advocate, the litigant normally depends upon him for further instructions. If the Advocate dies, there will be vacuum unless somebody informs the party about the death of the Advocate. It is also not improbable whether it is his own son or the Juniors, the death of a senior in he Advocate creates management of the office of an Advocate. In such a situation, it is possible that further proceedings of the suit as against the defendants would not have been known to them. Therefore, without judging the matter merely in a technical manner lot of dislocation C.R.P. Nos.26 and 27 of 2007 Page 64 of 71 and applying the principles laid down by the Supreme Court in the decision supra, this Court feels that it will not be totally unjustified to accept the grounds set up by the defendants to hold that the delay in filing the petition for setting aside the ex parte decree was sufficiently explained. Moreover, the reasons for delay given in the affidavit could not have been lightly dealt with, in the circumstances stated above. As a whole, this Court feels that the order of the trial Judge cannot be sustained. Therefore, the order of the learned II Additional Judge, City Civil Court deserves to be set aside.‟ 11. Analysing the situation, the Andhra Pradesh High Court allowed the revision application and set aside the order passed by the learned trial court as well as the appellate court by condoning the delay. 12. Considering the law laid down by the apex Court as well as the fact and law enunciated by the High Court of Andhra Pradesh, the present case falls into the same category inasmuch as if the lawyer would have been alive and intimated the petitioner with regard to the next course of action and the petitioner failed to take steps, in that case, the Courts should not set aside the ex parte decree under Order IX, Rule 13, CPC. In this case the position is just reverse because after the death of the lawyer, his death has not been brought to the notice of the defendant-petitioner, consequent upon which he could not take steps and with apprehension when he came for enquiry, he could C.R.P. Nos.26 and 27 of 2007 Page 65 of 71 know that the suit has already been decreed ex parte.” 11.18. The conspectus of decisions safeguards litigants who might otherwise be disadvantaged by a lack of proper notice. It ensures that the computation of time considers the actual ability of a party to take action, particularly when service defects are present. In the perspective of condonation of delay, it deserves discussion with respect to “sufficient cause”. The meaning of „sufficient‟ is „adequate‟ or „enough‟, inasmuch as may be necessary to answer the purpose intended. Therefore, word „sufficient‟ embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. „Sufficient cause‟ means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been „not acting diligently‟ or „remaining inactive‟. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. While deciding whether there is sufficient Page 66 of 71 C.R.P. Nos.26 and 27 of 2007 cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. “Sufficient cause” is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application. [Ref.: Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., AIR 1962 SC 361 = (1962) 2 SCR 762; Lonard Grampanchayat Vrs. Ramgiri Gosavi, AIR 1968 SC 222; Surinder Singh Sibia Vrs. Vijay Kumar Sood, (1992) 1 SCC 70; Orinental Aroma Chemical Industries Ltd. Vrs. Gujarat Industrial Development Corporation, (2010) 5 SCC 459; Parimal Vrs. Veena, (2011) 3 SCC 545; Sudarshan Sareen Vrs. National Small Industries Corporation Ltd., 2013 SCC OnLine Del 4412; State of Bihar Vrs. Kameshwar Prasad Singh, (2000) 9 SCC 94; Madanlal Vrs. Shyamlal, (2002) 1 SCC 535; Davinder Pal Sehgal Vrs. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156; Ram Nath Sao Vrs. Gobardhan Sao, (2002) 3 SCC 195, Kaushalya Devi C.R.P. Nos.26 and 27 of 2007 Page 67 of 71 Vrs. Prem Chand, (2005) 10 SCC 127, Srei International Finance Ltd. Vrs. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95; Reena Sadh Vrs. Aniana Enterprises, (2008) 12 SCC 589]. 11.19. “Sufficient cause” 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 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. [Ref.: G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54; A. C.R.P. Nos.26 and 27 of 2007 Page 68 of 71 Murugesan Vrs. Jamuna Rani, (2019) 20 SCC 803]. The Court, in its discretion, has to consider the „sufficient cause‟ in the facts and circumstances of every individual case. Although in interpreting the words „sufficient cause‟, the Court has wide discretion but the same has to be exercised in the particular facts of the case. See, Hira Sweets & Confectionary Pvt. Ltd. Vrs. Hira Confectioners, 2021 SCC OnLine Del 1823. 11.20. Thus, there is sufficient cause shown by the opposite parties in not appearing before the Court when the matter was called for hearing. Conclusion: 12. Considered the reasons ascribed by the learned Civil Judge (Senior Division) in his Order dated 27.02.2007 diligently. The factual determination of the learned Civil Judge (Senior Division) was on sound basis which warrants no interference. 12.1. The learned Senior Counsel having raised the issue that upon condonation of delay, further opportunity ought to have been afforded to contest the petition under Order IX, Rule 13, CPC. In the humble opinion of this Court the same is not necessary in the present set of fact-situation inasmuch as the reasons for delay in approaching the Court and the ground for setting aside the ex parte decree are the same. Once, on facts, C.R.P. Nos.26 and 27 of 2007 Page 69 of 71 it has been decided that there is sufficient cause for delay in approaching the Court, obviously for the same reason there was non-appearance by the opposite parties before the Court when the matter was called for hearing. Therefore, having found no infirmity in passing common order in CMA Nos.31 of 2004 and 32 of 2004, this Court find ground to show indulgence in the impugned Order dated 27.02.2007 by exercising power of revision under Section 115 of the CPC. 12.2. On holistic approach it can, thus, be said that the non-appearance before the Court when the matter was called for hearing was due to circumstances beyond control of the society (which is not a person in life with blood and flesh). The representative who was entrusted with the record having not taken proper care and even cared to return the records or appraise about the proceeding before the learned Civil Judge (Senior Division), there was a delay in approaching the Court with appropriate application under Order IX, Rule 13 of the CPC. The circumstances prevailed during the relevant point of time have been considered as sufficient and reasonable ground to set aside the ex parte decree for allowing opportunity to defend the case. 13. For the reasons ascribed herein above and discussions made supra and taking note of application of decisions C.R.P. Nos.26 and 27 of 2007 Page 70 of 71 to the facts and circumstances of this case, after looking into the documents enclosed to the revision petition, on giving anxious consideration to the materials placed in the records, this Court has no doubt that the learned Civil Judge (Senior Division) has taken the correct view both on the question of limitation as also on merit. This Court finds that there was sufficient and reasonable cause for excusing the delay in applying to the Court for setting aside ex parte decree suffered on account of non-appearance before the Court when the suit was called on for hearing, and this Court is satisfied that there could not have been appearance due to circumstances prevailing at the relevant point of time. In fine, both the Civil Revision Petitions stand dismissed, but there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 08th November, 2024//Aswini/MRS/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: 08-Nov-2024 20:35:13 C.R.P. Nos.26 and 27 of 2007 Page 71 of 71