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2003 DIGILAW 156 (ORI)

Chandrasekhar Samantasinghar v. State of Orissa

2003-02-21

P.K.TRIPATHY

body2003
ORDER 21.2.2003 — Heard learned counsel for the petitioners and learned Addi¬tional Government Advocate and this Civil Revision is disposed of at the stage of admission on consent of learned counsel for both the parties. 2. Judgment dated 16.3.2002 in Misc. Appeal No.6/93 of 2002/92 of the Court of Ad hoc Addl. District Judge (Fast Track Court No.1), Puri is under challenge. Learned Ad hoc Additional District Judge has allowed the application under Order 9 Rule 13, C.P.C. filed by the Opposite party and in that process set aside the order dated 26.8.1992 Passed by the Subjudge, Puri in Misc.Case No.105 of 1990 (under Order 9, Rule 13, C.P.C.). 3. Learned counsel for the petitioner vehemently argues that when the Subjudge, Puri on due appreciation of evidence was not satisfied about existence of sufficient cause to set aside the ex parte order, learned Ad hoc Additional District Judge, should not have taken a liberal view relating to want of appro¬priate proof in support of existence of sufficient cause. 4. Learned Additional Government Advocate on the other hand, referring to the orders passed by both the Courts below argues that learned Subordinate Judge, Puri unreasonably and unduly took a narrow view while considering the application under Order 9, Rule 13, C.P.C., but learned Adhoc Additional District Judge duly appreciated the evidence on record and has taken the appropriate view. He further argues that the view taken by the appellate Court is neither illegal nor unjust and the revisional Court should not interfere with the same. He, however, volunteers that opposite party has no objection to enhancement of the cost if this Court feels that the cost awarded by the appellate Court is inadequate. 5. After going through the impugned orders and hearing the aforesaid contention of the parties, this Court finds that ap¬proach to the issue by learned Ad hoc Additional District Judge and the consequence thereof is neither illegal nor perversal in nature. It is the settled position of law that if a Subordinate Court has jurisdiction to decide the question before it, a wrong decision in that respect will not require interference in exer¬cise of jurisdiction under Section 115 (1), C.P.C. It is only where the error of law or fact has relation to the jurisdiction of Subordinate Court that the Section would be attracted. Simi¬larly, error of jurisdiction or manifest error of procedure effecting ultimate decision resulting in grave injustice can be the set right by the revisional Court by interfering with the impugned orders. 6. In the case at hand, the plea of the opposite party relating to their inability to file written statement due to lack of instruction from the Government Officer and the plea of mis¬take committed by the office of the Government Pleader in not advancing the case in the diary of that office was advanced as the cause for the failure of the opposite party to participate in the suit as a consequence of which ex parte decree was passed. From existing material on record the appellate Court found such facts having been proved by the opposite party. The trial Court while not disputing about existence of such cause did not find that to be sufficient for setting aside the ex parte decree. The appellate Court having the jurisdiction to re-assess the fact, it did so to record the finding and to allow the appeal. It is not disputed at the Bar that there is no jurisdictional error in that respect. Appreciation of evidence by the appellate Court, is also not shown to me suffering from perversity. Under such circum¬stance, this Court does not feel it proper to interfere with the factual finding because the same does not suffer from jurisdic¬tional error or illegality. Under such circumstance, the impugned order is not liable to be interfered with. 7. As rightly stated by learned Additional Government Advocate, cost should, as far as practicable, be proportionate to the harassment and sufferings of the plaintiff. Petitioner agrees that a cost of Rs.3,000/- (three thousand) would be just and proper in that respect. Accordingly, while not interfering with the result in the Misc.Appeal No.6/93 of 2002/1992, this Court enhances the cost to Rs.3,000/- (three thousands) and modifies that order to that extent and also makes the same condition precedent for setting aside the ex parte decree. Learned Addi¬tional Government Advocate states that such cost shall be paid by 24th March, 2003. Therefore, the impugned order for setting aside the ex parte decree is allowed subject to payment of above costs by the aforesaid date. Learned Addi¬tional Government Advocate states that such cost shall be paid by 24th March, 2003. Therefore, the impugned order for setting aside the ex parte decree is allowed subject to payment of above costs by the aforesaid date. It is made clear that non-payment of cost in due time shall result in dismissal of the application under Order 9, Rule 13, C.P.C. Therefore, receipt be filed by that date relating to payment of cost. The Civil Revision is accordingly stands disposed of. Revision disposed of.