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2008 DIGILAW 556 (ORI)

KHETRABASI SRICHANDAN v. GOPINATH SRICHANDAN

2008-07-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ petition, challenge has been made to the order dated 4.2.1999 passed by the learned Addl. District Judge, Bhubaneswar in Civil Revision No. 34 of 1995 reversing the order dated 14.8.1995 passed by the learned Civil Judge (Junior Division), Bhubaneswar in MJC No. 29 of 1994. 2. The brief of the case are as follows; Petitioners are the Defendants. Opp. party as Plaintiff filed Title Suit No. 117 of 1993 before the learned Civil Judge (Senior Division), Bhubaneswar for declaration of title and confirmation of possession or in the alternative for recovery of possession of the suit land measuring an area of Ac.0.549 decimals appertaining to 1962 Settlement Plot No. 2911 together with seven other plots which have been wrongly recorded jointly in the name of the Plaintiffs' father, Defendant No. 1 and the father of Defendants 2 to 4. In the said suit, the Defendants were set ex parte and the ex parte decree was passed on 22.1.1994 with costs. Against the said ex parte order, the present Petitioners filed an application under Order 9, Rule 13 read with Section 151 of the CPC which was registered as Misc. Case No. 29 of 1992 on the ground that the relevant documents could not be collected in time and Khetrabasi Srichandan (Defendant No. 1) who was entrusted to file the written statement was indisposed as a result of which they were set ex parte. They had filed written statement along with the petition under Order 9, Rule 13 of the Code of Civil Procedure. They also specifically stated that in the revision case filed by the Plaintiff before the Board of Revenue u/s 32 of the Act, the order was passed in their favour and all the papers were with the Advocate at Cuttack which were not given to them in time for which the delay was caused. In the above circumstances, it was beyond the control of the Defendants to file the written statement in time and participate in the proceeding. Thus, the ex parte order needs to be set aside and the suit be restored to file, failing which they would suffer irreparable loss and injury. The Plaintiff filed his objection. In support of their plea, the Defendants examined one witness who is the son of Defendant No. 1. The said witness was cross examined by the Plaintiff on 3.8.1995. Thus, the ex parte order needs to be set aside and the suit be restored to file, failing which they would suffer irreparable loss and injury. The Plaintiff filed his objection. In support of their plea, the Defendants examined one witness who is the son of Defendant No. 1. The said witness was cross examined by the Plaintiff on 3.8.1995. The learned Civil Judge (Senior Division), Bhubaneswar after hearing the parties on 14.8.1995 forthe greater interest of justice allowed the said application filed under Order 9, Rule 13 read with Section 151 of the CPC subject to payment of cost of Rs. 2507- on the ground that non-restoration of the suit to file will occasion prejudice to the Petitioners in absence of a fair trial in the alleged dispute. Being aggrieved by the said order, the Plaintiff filed civil revision before the learned Addl. District Judge, Bhubaneswar which was registered as Civil Revision No. 34 of 1995. The learned Addl. District Judge set aside the order dated 14.8.1995 passed by the learned Civil Judge (Senior Division), Bhubaneswar on the ground that as the Defendants failed to establish that they were prevented by sufficient cause from appearing when the suit was called on for hearing. As such, the Court below has failed to exercise the jurisdiction vested in it. 3. The learned Counsel appearing for the Petitioners submitted that Petitioner No. 1 who is Defendant No. 1 in the Court below is an old and aged person. He specifically stated that the circumstances were beyond their control as the necessary documents were not readily available to file the written statement in time. The learned Counsel for the Petitioners further submitted that since the learned Civil Judge after considering the materials available before it set aside the ex parte order by awarding cost with a view that the parties will contest the suit on merits, the revisional Court should not have interfered with the said order. In support of his contention, he cited decisions of the apex Court in the case of Tea Auction Ltd. Vs. Grace Hill Tea Industry and Another in the case of Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. and Anr. reported in (2005) 13 SCC 95 and in the case of Nahar Enterprises Vs. Hyderabad Allwyn Ltd. and Another in the case of Jineshwardas (D) through L.Rs. and Others Vs. Grace Hill Tea Industry and Another in the case of Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. and Anr. reported in (2005) 13 SCC 95 and in the case of Nahar Enterprises Vs. Hyderabad Allwyn Ltd. and Another in the case of Jineshwardas (D) through L.Rs. and Others Vs. Smt. Jagrani and Another, and in the case of Byram Pestonji Gariwala Vs. Union Bank of India and others, wherein the Supreme Court after considering the facts and circumstances of the case has set aside the ex parte decree and imposed the conditions which are permitted under Order 9, Rule 13 of the CPC and in all these cases the apex Court has given a chance to the parties to contest the suit on merits. 4. The learned Counsel appearing for the opposite parties, on the other hand, submitted that the petition under Order 9, Rule 13 of the CPC was filed not by any of the Defendants but by the son of Defendant No. 1 who was not a party to the suit. Therefore, the petition was not maintainable as the requirement of Order 9, Rule 13 of the CPC is that one of the Defendants should file an application to set aside the ex parte order. As the Petitioners failed to establish sufficient cause for their non-appearance, the revisional Court rightly set aside the order passed by the trial Court. He cited decisions reported in E.I.D. Parry Limited Vs. Agro Sales and Service and Others, etc., and 95 (2003) CLT 324 (SC) (Basant Singh and Anr. v. Roman Catholic Mission). 5. The learned Counsel for the Petitioners, while objecting to submission made by the learned Counsel for the opposite parties, submitted the as per the provisions of Order 3, Rule 1 and Order 6, Rule 15 of the Code of Civil Procedure, a person who has been authorized by the party or his counsel can file an application on behalf of the parties or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and the Court can consider the said application if satisfied. Thus, in the present case, as the son of Defendant No. 1 stated in his verification that he was acquainted with the case, the learned Civil Judge (Senior Division) accepted the said application and rightly set aside the ex parte decree subject to payment of cost and such order should not have been interfered with by the learned Addl. District Judge while exercising the jurisdiction u/s 115 of the CPC as substantial justice had been done by the Court below. 6. The apex Court in the case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, has held in paragraph-7 that under Order 9, Rule 13 of the CPC an ex parte decree passed against a Defendant can be set aside upon the satisfaction of the Court that either the summons were not duly served upon the Defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the Defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9. Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. (Emphasis added by this Court). 7. In the present case, admittedly, the suit was for declaration of title and confirmation of possession or in the alternative for recovery of possession. The absence of the Defendants was not mala fide or intentional and the absence of the Defendants can be compensated by awarding adequate cost and the dispute should be decided on merit. A very narrow and technical approach in dealing with the matter pertaining to setting aside the ex parte order should not be adopted by the revisional Court. 8. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. 8. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of the apex Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior Court, the High Court should not quash the Judgment of the subordinate Court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate Court has come to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. (See 1997 (II) OLR (SC) 305, (Achutananda Baidya v. Prafullya Kumar Gayen and Ors.). 9. Therefore, this Court in exercise of its jurisdiction under Article 227 of the Constitution of India sets aside the order dated 4.2.1999 passed by the learned Addl. District Judge, Bhubaneswar in Civil Revision No. 34 of 1995 and restores the order dated 14.8.1995 passed by the learned Civil Judge (Senior Division), Bhubaneswar in MJC No. 29 of 1994. However, as the cost of Rs. 2507- imposed by the learned Civil Judge (Senior Division), Bhubaneswar was very nominal, the same is enhanced to Rs. 1000/- (rupees one thousand) which will be paid to the Plaintiff in the trial Court within one month from today. 10. With the aforesaid observation, the writ petition is allowed. However, the learned Civil Judge (Senior Division), Bhubaneswar is directed to dispose of the Title Suit No. 117 of 1993 as early as possible, preferably by end of March, 2009, if there is no other impediment. 10. With the aforesaid observation, the writ petition is allowed. However, the learned Civil Judge (Senior Division), Bhubaneswar is directed to dispose of the Title Suit No. 117 of 1993 as early as possible, preferably by end of March, 2009, if there is no other impediment. Final Result : Allowed