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2003 DIGILAW 196 (ORI)

Sashi Bhusan Pradhan v. Basudha Karna

2003-03-05

P.K.TRIPATHY

body2003
ORDER 3.3.2003. — Heard. 2. On consent of learned counsel for both the parties this Civil Revision stands disposed of at the stage of admission. 3. Petitioner was the sole defendant in T.S. No.16 of 1998 of the Court of Civil Judge (S.D.) Boudh and the opposite party members were the plaintiffs. On 22.4.1999 petitioner defaulted in appearance and therefore, after setting him ex parte, the suit was heard ex parte and consequently an ex parte decree was passed on 13.5.1999. On 28.8.1999 petitioner filed application under Order 9, Rule 13, C.P.C. along with application under Section 5 of the Limitation Act with the prayer to condone the delay and to set aside the ex parte decree. In support of that cause, petitioner advanced the plea of his illness from 17.4.1999 to 28.9.1999. In proof of that plea, petitioner examined his son-in-law and two more witnesses, out of whom P.W. No.3 was the doctor who granted certificate of illness and treatment in favour of the petitioner. The medical certificate was marked as Ext. 1. 4. Contesting to that claim, plaintiffs/opposite party advanced the contention that the plea of illness is myth and the petitioner was attending the Court of Executive Magistrate and there is no justification for setting aside the ex parte decree which is due to the gross-regligence of the petitioner. They relied on the certified copy of the order-sheet of the Court of Executive Magistrate which was marked Ext. A. They also examined three witnesses. 5. On appreciation of such contention and evidence thereof advanced by both the parties, learned Civil Judge (Senior Divi¬sion) on 20.9.2000 delivered the impugned order dismissing the application under Order 9, Rule 13, C.P.C. Learned Civil Judge took exception to petitioner’s non-appearance in the Court to be examined as a witness on the ground that he could come to the Court premises to purchase stamp paper from the Stamp Vender for executing power of attorney in favour of his son-in-law (who was examined as P.W. No.1) and that Ext.A indicates that on 27.8.1999 petitioner had appeared in the Court of Executive Magistrate. In that respect, learned Civil Judge also found the medical certifi¬cate (Ext.1) granted by P.W. No.3 and the supportive evidence adduced by him to be not true. Petitioner carried Misc. Appeal No.14 of 2000 and learned Addl. Dist. In that respect, learned Civil Judge also found the medical certifi¬cate (Ext.1) granted by P.W. No.3 and the supportive evidence adduced by him to be not true. Petitioner carried Misc. Appeal No.14 of 2000 and learned Addl. Dist. Judge, Boudh on 7th July, 2001 dismissed that appeal adopting to the aforesaid finding recorded by learned Civil Judge. 6. Before dealing with the matter on merit, this Court thinks it proper to make an observation that tendering of false evidence is a crime and in that respect not only in the Penal Code but also in Section 340, Cr. P.C. appropriate provisions have been made. If learned Civil Judge found the Doctor to be deposing falsehood, he should have taken appropriate steps against the said doctor in accordance with the provision in Section 340, Cr. P.C. Even, at this stage also it is open to him to take appropriate step in that respect. 7. Whether or not the aforesaid medical evidence is false, the other evidence cannot be brushed aside while considering petitioners prayer advanced under Order 9, Rule 13, C.P.C. As noted above, the reasoning assigned by the Civil Judge and the approval endorsed by the appellate Court in that respect has travelled in a wrong path which has resulted in failure to exer¬cise the jurisdiction with material irregularity. It is needless to say that petitioner was to satisfy the Courts below relating to his inability to appear in the Court on 22.4.1999. Petitioner was not required to explain about his conduct as to where-from he purchased the stamp papers and whether for that purpose he had come to the Court premises to purchase the same. Similarly, the manner in his appearance in the Court of Executive Magistrate on 27.8.1999 is also non-consequential. Since the Courts below have failed to appreciate such circumstance and also have failed to take note of the evidence of P.Ws. 1 and 2 relating to justifiable reason for non-appearance on 22.4.1999, therefore, this Court finds that the Courts below have failed to exercise the jurisdic¬tion so vested in them for due consideration of the application under Order 9, Rule 13, C.P.C. 8. On record there is no dispute to the evidence of P.Ws. 1 and 2 that due to his old age and illness, petitioner could not appear in the trial Court, on 22.4.1999. On record there is no dispute to the evidence of P.Ws. 1 and 2 that due to his old age and illness, petitioner could not appear in the trial Court, on 22.4.1999. As noted above, even if, the evidence of P.W.No. 3 and Ext. 1 is not found true and cor¬rect, that evidence by necessary implication does not falsify the evidence of P.Ws. 1 and 2 in this particular case. Under such circumstance, this Court finds existence of sufficient cause to set-aside the ex parte decree. It is true that setting aside an ex parte decree amounts to harassment to the plaintiff for the negligence of the defendant, but such harassment can be compen¬sated by awarding cost and equity and justice do not stand against such remedy. 9. Taking the above view in this case, this Court sets aside the orders passed by the Courts below and allows the appli¬cation under Order 9, Rule 13, C.P.C. subject to payment of cost of Rs. 3,000/- (three thousand) by the petitioner/defendant to the opposite parties/plaintiffs within a period of one month from today. The Civil Revision is accordingly allowed. Civ. Rev. allowed.