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1999 DIGILAW 291 (ORI)

GOURANGA SAHOO v. ROHITASWA MEHER

1999-08-20

B.P.DAS

body1999
JUDGMENT : B.P. Das, J. - This revision is directed against the order dated 13-11-1998 passed by the Add!. District Judge, Balangir, in M.J. A. No. 11/10 of 1997-98 confirming the order dated 28-3-1997 passed by the Civil Judge (Junior Division), Patnagarh, in M.J. C. No. 3 of 1995, rejecting the Petitioner's application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, 'the Code'). 2. Briefly stated, the facts are: The opposite party has filed T.S. No. 86 of 1988 in the court of the Civil Judge (Junior Division), Patnagarh, for declaration of his right, title and interest over the suit land and for recovery of possession from the present Petitioner. On 23-1-1995. to which date the suit was posted for hearing, the Petitioner Defendant having not appeared was set ex parte and ex parte hearing was taken up. Although the ex parte hearing continued on three subsequent dates, the Defendant remained absent from attending the court and the suit was ultimately decreed ex parte on 9-3-1995. Thereafter the Defendant filed an application under Order 9, Rule 13 of the Code for setting aside the ex parte decree stating therein that on 23-1-1995 he was suffering from dysentery and was bed-ridden for which he was not able to attend the court. It was,also stated therein that the Defendant's counsel was also absent on that day as he was away from Patnagarh. Evidence was adduced by both the parties on the application for setting aside the ex parte decree.. The trial court rejected the Petitioner's application under Order 9, Rule 13 of the Code disbelieving the plea of the Petitioner and recording a finding that the Petitioner failed to show sufficient cause for his absence in the court. The learned appellate court confirmed the order of the trial court and accordingly dismissed the mucilaginous judicial appeal resulting in the initiation of execution proceeding. 3. Learned Counsel for the Petitioner strenuously argued that there was sufficient reason to set aside the ex parte decree because the Petitioner was actually ill and in support of his claim, the 'petitioner adduced evidence as well as examined the treating physician and exhibited the medical certificate. On the other hand, there is no finding to.the effect that the medical certificate was not a genuine one. On the other hand, there is no finding to.the effect that the medical certificate was not a genuine one. The further case of the Petitioner is that the circumstances under which the Petitioner was present at Loisinga on that eventful day i. e., on 23-1-1995, and put his signatures on the Bank documents have been duly explained by the Petitioner and by p. w. 3, who was then the Cashier of the Bank; but the learned trial court fell into an error by not taking the evidence of p. w. 3 into consideration. During, the course of argument, learned Counsel for the Petitioner highlighted the,decision of the Apex Court in State of Haryana Vs. Chandra Mani and others. - Though the decision is on the question of limitation u/s 5 of the Limitation. Act, counsel for the Petitioner argued that the expression "sufficient cause" has been exhaustively dealt with by the Apex Court and it has been held that the said expression should be considered with pragmatism in justice-oriented approach rather than the technical detection. The counsel for the opposite party-plaintiff submitted that there being lack of sufficient cause, which is an essential ingredient for setting aside the ex parte decree, the learned trial court has rightly rejected the application under Order 9, Rule 13 of the Code. Moreover, the finding of the /learned trial court as well as the appellate court that the Petitioner had attended his duty on that date falsified the plea of the Petitioner that he was ill for which he could riot attend the court. Learned Counsel for the opposite party mainly relied upon the.decision of this Court in Sridhar Panda Vs. Taramani Dibya and Another wherein it has been held that the High Court cannot in exercise of its revisional powers u/s 115 of the Code attack findings of fact unless there are errors or the findings are perverse. The learned Counsel for the opposite party also relied upon a decision of the Supreme Court in Sudhansu Mishrani v. Subal Mishra A.L.R 1984 Ori 205, wherein it is held that when there is specific provision in the, Code covering a particular matter, inherent power is not available to be exercised in respect' of 'the said matter. Be that as it may, in my view the Petitioner does not gain by remaining absent where his interest is likely to be affected by ex parte adjudication. Be that as it may, in my view the Petitioner does not gain by remaining absent where his interest is likely to be affected by ex parte adjudication. It has been so submitted by the learned Counsel for the Petitioner in the written notes that the circumstances under which the Petitioner was present in the Bank and put his signatures on various documents have been sufficiently explained and the same was supported by p. w. 3, who was the Cashier of the Bank, where the Petitioner was worrying. But the learned trial court for the reasons best known to it has not dealt with the evidence of p. w. 3-R.K. Sahu. 4. On perusal of the order of the learned appellate court as well as the trial court. I find that there is no whisper either in the order of the trial court or the appellate court regarding the manner in which the Courts below dealt with the evidence of p. w. 3, who, according to the Petitioner, is a vital witness. In my view the courts below by not taking the evidence of p. w. 3 into consideration has committed an error for which the impugned order cannot be sustained. It is also a well settled principle that the object is to enable the courts to substantial justice to parties by disposing of the matters on merits. (See Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, ). 5. Keeping in view the well established norms and taking into consideration the peculiar facts of the present case, I allow this' revision 'application and set aside the impugned order on the condition that the Petitioner shall pay a cost of rupees' two thousand five hundred to the opposite party in the trial court by 31st August, 1999. Further, both the parties are directed to appear before the trial court on the aforesaid date to receive further direction in the matter. The learned trial court shall do well to dispose of the suit expeditiously and preferably by end of December, 1999. Revision application allowed. Final Result : Allowed