Orissa High Court
Jaidurga Industries, Jeypore And Anr. vs Union Bank Of India on 17 March, 1987
Equivalent citations: AIR1988ORI104, AIR 1988 ORISSA 104, (1987) 64 CUTLT 196, (1987) 1 ORISSA LR 593, (1987) BANKJ 277
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. Being aggrieved by the order of the trial Court dt. 8-12-83 rejecting their, application to set aside the ex parte decree, the appellants have filed this appeal under Order 43, Rule 1, Civil P. C.
2. The respondent filed Title Suit No. 47 of 1982 in the Court of the Subordinate Judge, Jeypore for realisatipn of the mortgage money from the appellants. In the said suit the appellants were granted time till 10-12-82 as the last chance to file their written statement. On that day, since they failed to file the written statement, they were set ex parte and the suit was posted to 15-12-82 for ex parte hearing. The fifteenth of December having been declared a holiday the suit was taken up on 16-12-82 and it was adjourned to 3-1-83 on the application filed by the plaintiff. On3-l-83 ex parte hearing of the suit was taken up and decree was passed on 5-1-83. Thereafter the appellants filed the application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree taking the plea that they were unable to take steps in the suit due to their illness on 3-1-83. The application was resisted by the respondent. On behalf of the appellants two witnesses were examined, one G. Sankar Rao, prorietor of the firm and the doctor who treated the appellants for their ailment. It is pertinent to mention here that appellant 2 is the wife of G. Sankar Rao, proprietor of the appellant 1 firm. The trial Court refused to accept the plea of illness taken by the appellants and accordingly dismissed the application under Order 9, Rule 13, C.P.C.
3. Shri S. S, Swain, learned counsel for the appellants contended that on the facts and circumstances established from the evidence adduced in the case, the trial Court clearly erred in not accepting the plea of illness taken by the appellants. Shri K. T. Rao, the learned counsel for the respondent, on the other hand, supported the impugned order.
4. Perusal of the impugned order shows that the main ground on which the plea of illness was not accepted by the trial Court was that P.W. 1 did not specifically state in the application under Order 9, Rule 13, C.P.C. the date from which his illness commenced and the particular nature of ailment suffered by him. The discussions in the impugned order reveal that P.W. 1 stated that both he and his wife were lying ill since December, 1982 with high blood pressure. This statement was corroborated by the doctor (P.W. 2) to the extent that from 3-1-83 to 30-1-83 P.W. 1 was under his treatment for high blood pressure. It is thus clear that so far as the absence of the appellants on 3-1-83 is concerned, sufficient materials were available on record to satisfactorily explain their absence. The learned Subordinate Judge has further observed in para 2 of the order that the petitioners do not say as to why they were absent on 10-12-82 and even on 16-12-82. This consideration also appears to have weighed with the Court below while passing the impugned order. The position is beyond controversy that the defendants were entitled to succeed on their application under Order 9, Rule 13, C.P.C. and get the ex parte decree set aside on showing sufficient cause to the satisfaction of the Court, for their absence on the date when the suit was heard ex parte. The earlier order or orders by which they had been set ex parte thereby being precluded from filing written statement could not stand in the way of the Court exercising its power under Order 9, Rule 13, C.P.C. This position has been accepted in several decisions of the Supreme Court as well as of this Court, some of which may be noticed here, the cases of Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and Surendra v. Annapurna, AIR 1969 Ori 261. It is therefore manifest that the Court below erred in taking into consideration the fact that the appellants had not explained by satisfactory explanation their absence on 10-12-82 and 16-12-82 to which dates the suit had been posted for ex parte hearing though indeed hearing was not taken up on those dates. Regarding the plea of illness as discussed earlier, on the facts established from the evidence on record it has to be held that the appellants have been successful in establishing their plea of illness on 3-1-83 when the suit was heard ex parte.
5. On the aforesaid analysis, the Misc. Appeal is allowed, the impugned order is set aside, the application under Order 9, Rule 13, C.P.C. filed by the appellants is allowed and the ex parte decree passed in Title Suit No. 47 of 1982 is set aside. The trial Court will dispose of the suit in accordance with law. Both parties will bear their respective costs of this appeal.