The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.1262 of 2024 An application under Articles 226 and 227 of the Constitution of India) --------------- Santosh Kumar Panda ...… Petitioner -Versus- Kulamani Panda & Another ..…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. S. Sahu, Advocate
Legal Reasoning
For Opp. Parties : Mr. B.N. Panda, Advocate ___________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 20thof August, 2025 SASHIKANTA MISHRA, J. The petitioner questions the correctness of order dated 08.08.2024 passed by the learned District Judge, Jajpur in dismissing Civil Revision No.6 of 2023 filed by him whereby, the order passed by the trial Court restoring the suit dismissed for default, was confirmed. Page 1 of 7 2. The facts, relevant only to decide the present application are that the Opposite Parties/plaintiffs filed C.S. No.242 of 2009 wherein, the present petitioner was the sole defendant. By order dated 20.09.2021, the trial Court dismissed the suit for non-prosecution as the plaintiff had taken no steps but the defendant was present. An application was filed by the plaintiff under Order IX Rule 9 of the CPC being C.M.A No.118 of 2021, before the Court below seeking restoration of the suit. The defendant filed objection. Upon such objection, the parties adduced oral evidence. By order dated 14.09.2023, the trial Court held that the conducting counsel of the plaintiff not having intimated him about the date of posting of the suit same was a good cause for his non-appearance. Holding thus, the application was allowed subject to cost of Rs.1000/-. 3. The defendant carried revision to the District Court. The learned District Judge, by the order impugned, refused to interfere by holding that the trial Court had not exercised jurisdiction not vested in it nor acted in exercise of jurisdiction illegally or with material irregularity. Being Page 2 of 7 aggrieved, the defendant has approached this Court in the present application. 4. Heard Mr. S. Sahu, learned counsel for the petitioner-defendant and Mr. B.N. Panda, learned counsel for the plaintiff-Opposite Parties. 5. Mr. Sahu would argue that as per the Article 122 of the Limitation Act, an application for restoration of a suit dismissed for default can be filed within thirty days of the date of dismissal. In the instant case, the suit was dismissed for default on 20.09.2021 but the application for restoration was filed on 17.11.2021, which is beyond the period of limitation. Further, no application seeking condonation of delay was filed. The Courts below did not consider the issue of limitation. The revisional Court must therefore, be deem to have committed serious error of law in rejecting the petition for revision. On merits, Mr. Sahu would argue that the plea taken by the plaintiffs to explain his non-appearance cannot be accepted in view of the admitted fact that they were prosecuting another suit in the very same Court at the Page 3 of 7 relevant time. Therefore, it cannot be said that they were not aware of the date of posting of the suit in question. 6. Mr. B.N. Panda, on the other hand, would argue that the learned District Judge finding no illegality whatsoever in the order passed by the trial Court refused to exercise revisional jurisdiction. Once the revisional Court passed its order no further challenge can be made to the same. Mr. Panda further submits that the revision filed by the defendant was otherwise not maintainable in view of the fact that the order allowing restoration is appealable. In this context, he has relied upon the judgment of the Supreme Court in the case of Kamla Devi v. Kushal Kanwar & Another AIR 2007 SC 663. 7. In view of the rival contentions noted above, it is evident that the first question that falls for consideration is, whether the application for restoration was barred by limitation. 8. Admittedly, the trial Court dismissed the suit for non-prosecution on 20.09.2021 when the plaintiffs were absent but the defendant was present. This must therefore, held to be an order passed under Order IX Rule Page 4 of 7 8 of CPC. The application for restoration must therefore be held to have been filed under the provisions of Order IX Rule 9 of CPC. Coming to the question of limitation, Article 122 of the Limitation Act provides limitation of thirty days to restore the suit dismissed for default of appearance or for want of prosecution. As already stated, the application for restoration was filed on 17.11.2021, which is beyond the period of thirty days. No application for condonation of delay was filed explaining the delay. The trial Court has not considered the issue of limitation at all in its order of restoration. In a somewhat similar case, a learned Single Judge of Madras High Court, in the case of M. Kripanithi V. P. Anbumani, AIR 2022 MADRAS 228 held as follows:- “13.But, this does not mean that the application is allowed. The order passed in nonest only because the learned Judge should have been insisted that an application under Section 5 of Limitation Act should have been filed and overlooking that particular basic fact, passing an order in the application under Order 9 Rule 9 of CPC either dismissing it or allowing it would render the order nonest and will necessarily have to be interfered with by this Court.” 9. It goes without saying that Section 3 of the Limitation Act makes it obligatory for the Court to consider the question of limitation irrespective of whether Page 5 of 7 the same is specifically raised before it or not. Surprisingly, learned District Judge also appears to have lost sight of this vital aspect, which being a point of law, goes to the root of the matter. Viewed in the above background, the finding of the revisional Court that the trial Court committed no illegality cannot be sustained. 10. In all fairness, the revisional Court ought to have examined the order of the trial Court on the touchstone of law relating to limitation and with regard to the question of maintainability of the revision. In view of the fact that the present Opposite Party-Plaintiffs not having challenged the order of the revisional Court on such ground, cannot be permitted to do so in the application filed by the defendant challenging such order. 11. For the foregoing reasons therefore, this Court finds that both the Courts below committed manifest illegality in not considering the question of limitation while deciding the application under Order IX Rule 9 of CPC. Further, nothing has been placed before this Court to explain the delay in filing the application for restoration, so as to persuade this Court to condone the same. Page 6 of 7 12.
Decision
In the result, the CMP is allowed. The impugned orders are hereby set aside. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 20th of August, 2025/ P. Ghadai, Jr. Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-Aug-2025 12:53:25 Page 7 of 7