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2015 DIGILAW 447 (ORI)

Pratap Chandra Dikhit v. District Judge, Ganjam, Berhampur

2015-07-31

A.K.RATH

body2015
JUDGMENT Dr. A.K. RATH, J. - In this application under Article 227 of the Constitution, the petitioners have challenged, inter alia, the order dated 6.2.1998 passed by the learned District Judge, Ganjam, Berhampur in C.R. No.33 of 1996 vide Annexure-3. By the said order, learned District Judge dismissed the revision and confirmed the order dated 27.6.1996 passed by the learned Civil Judge (Sr. Divn.), Berhampur in M.J.C. No.95/92, whereby and whereunder the application filed by the opposite party nos.3 to 5 under Order 9 Rule 13 C.P.C. was allowed. 2. The petitioners as plaintiffs laid a suit for permanent injunction restraining the defendants/opposite party nos.3 to 5 from interfering with their possession of the suit schedule land and for mandatory injunction directing the defendants to leave the suit house in the Court of the Sub-Ordinate Judge, Berhampur (now the learned Civil Judge (Sr. Divn.), Berhampur), which was registered as Title Suit No.60 of 1985. 3. The suit was posted to 6.4.1992 for ex-parte hearing. The same was decreed ex-parte. While the matter stood thus, the defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the ex-parte decree, which was registered as M.J.C. No.95/92. It is stated that the defendant no.3 was looking after the case on behalf of the other defendants. He was ill and absent on that date. The Advocate for the defendants prayed for adjournment on the ground of illness of the defendant no.5. But then the same was rejected on 6.4.1992. The suit was posted to 27.4.1992 for ex-parte hearing. Finally, the same was decreed ex-parte. After recovery from illness, the defendant no.5 contacted his Advocate on 5.7.1992 and came to know that the ex-parte decree was passed. Thereafter an application under Order 9 Rule 13 C.P.C. along with an application under Section 5 of the Limitation Act for condonation of delay was filed. The plaintiffs-petitioners registered the prayer of the defendants that the defendant no.5 was not ill. On the date of ex-parte hearing, he had come to Berhampur with them in the same Bus. The application has been filed to prolong the litigation. 4. To substantiate the case, the defendants had examined three witnesses and the plaintiffs had examined two witnesses. The plaintiffs-petitioners registered the prayer of the defendants that the defendant no.5 was not ill. On the date of ex-parte hearing, he had come to Berhampur with them in the same Bus. The application has been filed to prolong the litigation. 4. To substantiate the case, the defendants had examined three witnesses and the plaintiffs had examined two witnesses. On a thread back analysis of the evidence on record, the learned trial Court came to hold that the defendants were prevented by sufficient cause in attending the Court at the time of hearing and accordingly set aside the ex-parte decree subject to payment of cost of Rs.100/-. The petitioners filed a revision being C.R. No.33 of 1996 before the learned District Judge, Ganjam, Berhampur. By order dated 6.2.1998, the learned District Judge dismissed the revision petition. 5. Heard Mr. A.K. Choudhury, learned counsel for the petitioners and Mr. G.D. Kar, learned counsel for the opposite party nos.3 to 5. 6. The provisions of Order 9 Rule 13 C.P.C. is quoted hereunder. “13. Setting aside decree ex parte against defendant - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.]” 7. On a conspectus of the said order, it is evident that if the defendant satisfies the Court that the summons was not duly served or he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. But then, the Court shall not set aside a decree passed ex parte on mere irregularities in the service of summons or in a case where the defendants had notice of the date of hearing and sufficient time to appear in the Court. The second proviso is mandatory in nature. 8. The expression “sufficient cause” has not defined in the C.P.C. Sufficient cause is an elastic expression for which no rule of universal can be laid down. The same should be construed liberally. The Court has wide discretion in the matter. Whether a particular cause is sufficient cause will depend upon the facts and circumstances of the each case. 9.“Sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive” as held by the Hon’ble apex Court in the case of Parimal vs. Veena @ Bharti, (2011) 3 SCC 545 . It was further held that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. While deciding whether there is a sufficient case or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. While deciding whether there is a sufficient case or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. In order to determine the application under Order 9 Rule 13 C.P.C., the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. 10. The case of the petitioners may be examined on the anvil of the decision cited supra. Both the Courts on an appreciation of the evidence on record came to hold that the defendants were prevented by sufficient cause in appearing in the suit. Though a plea was taken by the plaintiffs/petitioners that the Doctor (P.W.1) in the habit of issuing false certificate, the plaintiffs failed to substantiate the said plea. Thus, there being no illegality or perversity in the orders passed by the Courts below, this Court is not inclined to interfere with the same in exercise of jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. 11. The trial Court has allowed the application subject to payment of cost of Rs.100/-. The same is modified to the extent of Rs.2000/-. Since the suit is of the year 1985, the learned Civil Judge (Sr. Divn.), Berhampur is directed to conclude the hearing of the suit by end of December, 2015. Petition dismissed.