The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMAPL No.256 of 2024 Sk. Gul Mahammad Khan(dead) & Others Petitioner(s) Represented by Mr. P.K. Rath, Senior Advocate assisted by Ms. S. Das, Advocate -versus- Smt. Malati Sahu & Others …. Opposite Party(s) Represented by Mr. T.K. Mohanty, Advocate (Opposite Party Nos.2(a) to 2(d). CORAM:
Decision
Order Date of Hearing :04.11.2024 :: Date of Order: 08.11.2024 A.C. Behera,J, 1. This is a CMAPL under Chapter 8 of Rule 30 of the Orissa High Court Rules read with Section 151 of the CPC, which has been filed by the petitioners (those were the appellants in the 2nd Appeal vide S.A. No.95 of 1990) against the Opposite Parties (those were the respondents in the 2nd Appeal vide S.A. No.95 of 1990) praying for setting aside the dismissal Order dated 12.08.2024 passed in the 2nd Appeal vide S.A. No.95 of 1990 and to restore the same. 2. It is the case of the petitioners in this CMAPL supported with an affidavit that, they (petitioners) were the appellants in the 2nd // 2 // Appeal vide S.A. No.95 of 1990. That 2nd Appeal vide S.A. No.95 of 1990 was listed before this Court on 12.08.2024 for hearing, but, on that day, when as per the list, the said 2nd Appeal vide S.A. No.95 of 1990 was placed before the Court for hearing, at that time, the learned counsel for the petitioners could not remain present in the Court due to missing out the number of S.A. No.95 of 1990 from the list inadvertently, for which, none could remain present before the Court on behalf of the petitioners for hearing of the 2nd Appeal vide S.A.No.95 of 1990 on 12.08.2024. Therefore, that 2nd Appeal vide S.A. No.95 of 1990 of the petitioners (appellants) was dismissed on 12.08.2024 for the default of the petitioners. 3. So, after dismissal of the 2nd Appeal vide S.A. No.95 of 1990 of the petitioners on dated 12.08.2024, they (petitioners) filed this CMAPL praying for setting aside that dismissal order and to restore the same to its original stage on the ground that, the poor litigants i.e. the petitioners (those were the appellants in S.A. No.95 of 1990) should not suffer for the fault of their counsel. 4. Except the Opposite Party Nos.2(a) to 2(d), no other Opposite Parties has appeared in this CMAPL in spite of sufficiency of notices of this CMAPL on them. Likewise, none of the Opposite Parties including Opposite Party Nos.2(a) to 2(d) has filed any objection in this CMAPL filed by the petitioners. 5. Heard the CMAPL from the learned counsel for the petitioners and the learned counsel for the Opposite Parties Nos.2(a) to 2(d). 6. Due to non-filing of any objection by any of the Opposite Parties disputing/denying the averments of this CMAPL made by the // 3 // petitioners, the averments made by the petitioners in this CMAPL supported with an affidavit have remained uncontroverted. 7. When, it has been specifically stated by the petitioners in this CMAPL that, only for an inadvertent mistake of their learned counsel due to missing out the number of the S.A. No.95 of 1990 from the list on dated 12.08.2024, he could not remain present in the Court on that day to represent them (petitioners/appellants) and they (poor litigants) should not suffer for the above unintentional inadvertent mistake of their counsel and in case of non-restoration of the S.A. No.95 of 1990 for hearing, they (petitioners) shall be prejudiced seriously being debarred from the natural justice and when their above averments made in their petition supported with an affidavit have remained uncontroverted, then, at this juncture, there is no justification under law to disallow the prayer of the petitioners made in the CMAPL. 8. The reasons assigned above for restoration of the 2nd Appeal vide S.A. No.95 of 1990 on the basis of the factual positions as discussed above finds support from the ratio of the following decisions: (i) (1981) 2 SCC 788:Rafiq and Another Vs. Munshilal & 72(1991)CLT:566:Sambari Bewa Vs. Banita Bewa & Others—Party should not suffer for inaction of his counsel. Another (Para No.3) and (ii) 2016 (II) CLR (S.C) 300:Union of India Vs. the K.V. Lakshman & Others (Para No.34)—When, averments made in the application were supported with an affidavit, which remained unrebutted, then, the same should not be disbelieved. (iii) 2019 (I) CLR 461 (D.B):(Smt.) Aditi Das Vs. Sri Seshadev Das—When the petitioner has filed petition along with an affidavit and when the counter filed by the // 4 // opposite party is not supported by any affidavit, then, the version of the Opposite Party may not be believable. (iv) 2015 (II) CCC 690 (MP) Madho Singh & Others Vs. Ramkali & Others (para No.5)—CPC 1908, Order 9 Rule 7—When petitioners application under Order 9 Rule 7 of the CPC supported by an affidavit and when there is no counter affidavit from the side of the Opposite Parties—No justification in disbelieving the same. (v) (2007) 10 SCC 82:Sumtibai & Others Vs. Paras Finance Company & Others—The Civil Procedure Code is really the rules of natural justice, which are set out in great and elaborate details. Its purpose is to enable both parties to get a hearing. 9. So, by applying the principles of law enunciated by the Hon’ble Courts and Apex Court to the factual aspects of the case as discussed above, the CMAPL filed by the petitioners is allowed on merit. 10. The dismissal order passed on dated 12.08.2024 in S.A. No.95 of 1990 is set aside. 11. The 2nd Appeal vide S.A. No.95 of 1990 is restored (relegated) to its original state, as it was on dated 12.08.2024 prior to its dismissal. 12. Accordingly, the CMAPL No.256 of 2024 is disposed of finally. ( A.C. Behera ) Judge // 5 // S.A. No.95 of 1990 1. In view of the final order passed today in CMAPL No.256 of 2024, list this matter on 21.11.2024 for hearing. Rati Ranjan ( A.C. Behera ) Judge Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 13-Nov-2024 11:08:54