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2001 DIGILAW 148 (ORI)

OM PRAKASH AGARWALA v. BERHAMPUR MUNICIPALITY

2001-03-30

P.K.MISRA

body2001
P. K. MISRA, J. ( 1 ) THE defendant is the petitioner against an order of the trial, court passed in M. J. C. No. 246/96 where in the trial court while allowing the application of the petitioner under Order 9, Rule 13, Code of civil Procedure has imposed a condition that the petitioner should deposit a sum of Rs. 4,20,900/- or furnish a bank guarantee for the said amount as a condition precedent for setting aside the ex-parte decree. The petitioner is aggrieved by the imposition of such condition. ( 2 ) THE learned counsel appearing for the petitioner has submitted that the petitioner due to his heart ailment has spent a huge amount and as such he is not in a position to comply with such a direction. It is also submitted that the trial Court having found sufficient cause for non-appearance of the petitioner should not have imposed such an oppressive condition which has the effect of nullifying the order. The latter submission of the petitioner appears to be justified. It is no doubt true that a court while setting aside an ex parte decree can impose such condition as to cost or payment into Court, as deemed just and proper. In the present case, the trial Court observed:-". . . EX-PARTE judgment was passed once on 26-3-1992. The same ex parte judgment was set aside on a nominal cost of Rs. 200/-on 25-7-95. From this admitted past conduct of the petitioner and taking into consideration that the respondent which is a local public institution is moving around the Court for about one and half decades, I feel this is a fit case where the petitioner should be saddled with a heavy, cost to ensure his attendance in the Court on the date of hearing of the suit and prevent him from taking advantage of his prolonged heart disease. In the interest of justice, the petitioner should be directed to give bank guarantee or deposit the amount of 50% of the suit claim which 'comes to Rs. 4,20,900. 00 as a condition precedent for setting aside the ex-parte, decree and restoration of the suit to file. In the interest of justice, the petitioner should be directed to give bank guarantee or deposit the amount of 50% of the suit claim which 'comes to Rs. 4,20,900. 00 as a condition precedent for setting aside the ex-parte, decree and restoration of the suit to file. "even though the imposition of such a condition was a discretionary order and should not ordinarily be interfered with in a Civil Revision, I think, in the facts and circumstances of the case, the condition which appears to be very oppressive which has practically the effect of nullifying the order passed by the trial court, should not have been imposed while setting aside the ex-parte decree. However, as the opposite party has to face a prolonged litigation, keeping in view the facts and circumstances of the case, i think interest of justice would be served by modifying the condition imposed by the trial Court and directing instead that a sum of Rs. 5,000. 00 (Five thousand) shall be paid by the petitioner to the opposite, party within a period of six weeks from today. It is made clear that if the aforesaid cost is not paid within the stipulated time the ex parte decree shall be deemed to have been confirmed. The suit should be disposed of as expeditiously as possible, preferably within a period of six months after compliance with the order regarding payment of cost. The parties are directed to appear before the trial Court on 11th May, 2001, on which date the trial court after being satisfied about the payment of cost shall fix a date for hearing and proceed to dispose of the suit by end of December, 2001. The Civil Revision is disposed of with the aforesaid observation and direction. Revision disposed of.