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2013 DIGILAW 376 (ORI)

Bankim Chandra Dey v. Pulin Bihari Dey

2013-09-12

S.K.MISHRA

body2013
Judgment : S.K. Mishra, J. The judgment dated 29.01.2013 passed in F.A.O. No. 135 of 2011 of the court of learned District Judge, Balasore is in question in this writ petition. By virtue of such judgment, the learned District Judge upheld the order passed by the learned Civil Judge (Senior Division), Balasore in C.M.A. No.141 of 2010 rejecting the application filed by the present petitioner under Order 9 Rule 13 of the Code of Civil Procedure, 1908, hereinafter referred as the “Code” for brevity, for setting aside the ex parte decree passed against him in Title Suit No. 152 of 1990. 2. The facts leading to filing of the appeal may be stated as follows: The present petitioner is the defendant no.1 in Title Suit No.152 of 1990. Opposite party no.1 is the plaintiff. He has filed the suit for partition of the land, which is stated to be the ancestral properties of the parties. The present petitioner i.e. the opposite party no.1 in the suit, has appeared in the suit and filed written statement admitting the genealogy to set up the plea that by virtue of two different Regd. Wills, the properties have been bequeathed in favour of the defendant by the common ancestor. The further case of the present petitioner is that he being an old ailing person resides about 90 to 100 Kms. away from Balasore, he was depending upon the Advocate’s Clerk, who was looking after the affairs of the case. The petitioner was suffering from asteo arthritis with acid peptic diseases from 20.05.2007 to 01.11.2008. During such period, he was not in a condition to move and was under treatment of Dr. Srikanta Das, Senior Medicine Specialist. He was advised to take complete bed rest. After recovery from illness, he came to Balasore on 02.11.2008 to know about the position of Title Suit No.152 of 1990. He inspected the record on 03.11.2008 through his Advocate Sri S.K.Panda and could know on 11.11.2008 that the suit was decreed preliminarily ex parte on 14.11.2007. The decree was drawn up on 20.11.2007. The ex parte judgment and decree were passed in his absence. He has sufficient cause for his non-appearance before the court during the period when the suit was taken for hearing ex parte. The decree was drawn up on 20.11.2007. The ex parte judgment and decree were passed in his absence. He has sufficient cause for his non-appearance before the court during the period when the suit was taken for hearing ex parte. In the ex parte decree, the property concerned in the registered Will executed by one Nakafudi, wife of Bihari in favour of the petitioner in respect of all her properties on 27.03.1973 has not been taken into consideration and those properties have not been allotted to the petitioner and his sons along with the ancestral shares over the disputed property. Therefore, the preliminary decree passed ex parte in Title Suit No.152 of 1990-I is prejudicial to the interest of the petitioner. The opposite party-plaintiff has filed his objection averring that the application is not maintainable. Further, he denied the averments made in the petition and stated that intentionally, deliberately and knowingly the petitioner did not attend the court and participated in the hearing. Further, the petitioner intentionally did not file the Misc. Case in the stipulated time only to delay the disposal of the Final Decree proceeding and therefore they prayed to dismiss the Misc. Case. It is further submitted that in order to substantiate its case, the petitioner has examined himself as P.W. 1. He has also examined one Medical Officer, who had issued medical certificate in his favour during the period of alleged illness, as P.W. 2. The opposite party has also been examined as O.P.W. No.1. 3. The learned Civil Judge, on analysis of the facts and taking note of the evidence adduced, came to the conclusion that the plea taken by the petitioner is not correct. Further, he held that the petitioner has failed to show that he was prevented by sufficient cause for appearing and participating in the proceeding. Holding thus, the petition for setting aside the ex parte order was dismissed. Such order was assailed by the petitioner in F.A.O. No.135 of 2011, which was disposed of by the learned District Judge, Balasore as per the judgment dated 29.12.2013. Learned District Judge upheld the findings recorded by the learned Civil Judge (Senior Division). Such order and judgment are assailed in this writ petition. 4. Such order was assailed by the petitioner in F.A.O. No.135 of 2011, which was disposed of by the learned District Judge, Balasore as per the judgment dated 29.12.2013. Learned District Judge upheld the findings recorded by the learned Civil Judge (Senior Division). Such order and judgment are assailed in this writ petition. 4. Learned counsel appearing for the petitioner submits that there is enough material on record to come to the conclusion that the petitioner was prevented by sufficient cause from appearing in the court on the date the suit was called for hearing and the learned Civil Judge (Senior Division) as well as the learned District Judge have taken a hyper-technical approach and has dismissed the application for setting aside the ex parte decree. It is further submitted that if the ex parte decree is not set aside, that valuable rights of the petitioner will be nipped at the bud and it will cause irreparable injury to him. 5. Learned counsel for the opposite parties, on the other hand, submits that the concurrent findings of facts should not be set aside by the Court in exercise of jurisdiction under Article 227 of the Constitution of India. He relies on the reported case of State of Haryana and others v. Manoj Kumar, AIR 2010 SC 1779 . 6. A careful examination of the records reveals that the learned Civil Judge (Senior Division) has taken into consideration that the P.W. 1 during his cross-examination has stated that he has not filed any prescription or cash memo in the case to show that he was undergoing treatment in his house. The doctor, who was examined as P.W. 2 has stated during his cross-examination that the petitioner used to pay visit to his clinic. He admits that Ext. 1 was issued by him. It does not reveal that he has a clinic at Thana Chhak, Bhograi. He further states that the petitioner has been put to various types of clinical tests and that he had issued a number of prescriptions. Learned Civil Judge (Senior Division) therefore held that the evidence adduced on behalf of the petitioner creates reasonable doubt regarding the illness of the petitioner during the period 20.05.2007 to 01.11.2008 and he was under treatment of P.W. 2 in his clinic. Learned Civil Judge (Senior Division) therefore held that the evidence adduced on behalf of the petitioner creates reasonable doubt regarding the illness of the petitioner during the period 20.05.2007 to 01.11.2008 and he was under treatment of P.W. 2 in his clinic. He has further stated that the evidence adduced on behalf of the petitioner in support of his illness and treatment is not at all satisfactory. From such observation, especially the observation regarding the creation of reasonable doubt in the mind of the court, this Court comes to the conclusion that the learned Civil Judge (Senior Division) has not examined the case in its proper perspective and has arrived at the conclusions in the case as if he was dealing in a criminal case and not a civil case. It is trite that in a criminal case, the fact asserted must be proved beyond reasonable doubt. However, in a civil case, the party will succeed if he satisfies the court by proving a fact by preponderance to probability. This Court therefore is of the opinion that the learned Civil Judge (Senior Division) has exercised the jurisdiction conferred upon him with material irregularity. Therefore, the same can be taken up for interference in a petition under Article 227 of the Constitution of India. 7. This Court in Lundu Roudia v. Dusman Roudia, 1996 (II) OLR 355 has held that if the approach is over-technical and contrary to liberal and justice-oriented, then the same is liable to be interfered with. The court allowed the application under Order 9, Rule 13 of the Code holding that the trial court also committed the said mistake and adopted the unreasonably over-strict approach. In G.P.Srivastava V. R.K.Raizada and others, AIR 2000 SC 1221 , 2000 (1) OLR (SC) 485 the Supreme Court held that even if the applicant was found to be negligent, the other side could have been compensated by costs and the ex parte decree set aside on such other terms and conditions as were deemed proper by the trial court. It was further held by the Supreme Court that on account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant-defendant is allowed opportunity to prove his case within a reasonable time. 8. It was further held by the Supreme Court that on account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant-defendant is allowed opportunity to prove his case within a reasonable time. 8. Thus, such being the view of the Supreme Court and this Court in the aforesaid reported cases, this Court comes to the conclusion that the Order 9 Rule 13 of the Code is a benevolent provision, which is aimed at providing reliefs to the persons, who are denied of the opportunity to contest the case because of reasons beyond their control. In such cases, it is the duty of the Court to adopt a liberal and justice-oriented approach. The plaintiff in such cases can be compensated by awarding costs. 9. The ratio decided in the case of State of Haryana and others v. Manoj Kumar (supra) as cited by the learned counsel for the opposite party no.1 is not applicable to this case as it is not a case under Order 9, Rule 13 of the Code. Even though, both the trial and appellate courts have given concurrent findings of fact, this Court is of the opinion that as their approach to the prayer was not justice-oriented and liberal. The approach of the courts below is akin for adjudicating a criminal case. This Court comes to the conclusion that the power conferred under Article 227 of the Constitution of India should be invoked to set aside the orders impugned. 10. In the result, the writ petition succeeds. The order passed by the learned Civil Judge (Senior Division), Jaleswar and the judgment passed by the learned District Judge, Balasore are hereby quashed. The application filed by the petitioner under Order 9 Rule 13 of the Code is hereby allowed, subject to payment of cost of Rs. 7,500/-(Rupees seven thousand five hundred) to the opposite party no.1 within a period of 15 days. The parties are directed to appear before the learned Civil Judge (Senior Division), Jaleswar on 23rd September, 2013. The learned Civil Judge shall do well to dispose of the Civil Suit as expeditiously as possible, preferably within a period of six months from the date of appearance of the parties. Pending Misc. Cases are also disposed of as infructuous. Petition succeeds.