Orissa High Court
Tirtha Kumbhar vs Smt. Koili Kumbharin And Anr. on 23 September, 1997
Equivalent citations: 1997(II)OLR352
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Defendant No. 2 in Title Suit No. 19 of 1983 has filed this Civil Revision. An ex parte order had been passed against him. He filed an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. The said application was allowed by the trial Court and the ex parte decree was set aside. Against the said order, Misc. Appeal No. 7 of 1994 was filed jointly by the plaintiff and defendant No. 1/a, the legal representative of the original defendant No. 1. The appellate Court without considering the question of maintainability of such appeal (to be fair to the appellate Court - and, in fact, such question had not been raised either in the office note or by the counsel for the respondent) allowed the appeal and set aside the order of the trial Court. The net result was that the ex parte decree against the present petitioner was resurrected. The legality of the order of the appellate Court is being impugned in this Civil Revision.
2. Though several grounds have been taken in the Civil Revision, the basis question as to non-maintainability of such an appeal before the lower appellate Court has not been taken In the grounds of the Civil Revision. However, at the time of hearing, the learned counsel for the petitioner has urged that no appeal was maintainable against the order of the trial Court allowing an application under Order 9, Rule 13, Code of Civil Procedure, and, as such, the impugned order should be set aside.
The learned counsel for the opposite parties has submitted that if it is held that the appeal is not maintainable then the appellate Court being a revisional Court could have disposed of the matter as a revision and, as such, the impugned order may not be interfered with in this Civil Revision.
3. Order 43, Rule 1(d), Code of Civil Procedure, contemplates filing of an appeal against an order under Order 9, Rule 13 rejecting an application for setting aside a decree passed ex parte. The language of Order 13, Rule 1(d) leaves no room for doubt that an appeal is contemplated only when application under Order 9, Rule 13 is rejected. It does not contemplate filing of an appeal when an application under Order 9, Rule 13 is allowed. As such, there is no escape from the conclusion that the appeal filed before the lower Court was not maintainable.
4. The learned counsel appearing for the opposite parties has, however, contended that even assuming that the appeal was not maintainable, the order of the appellate Court could be taken to have been passed in its revisional jurisdiction. In support of such contention, he submits that invoking a revisional jurisdiction is nothing but invoking the appellate power of the higher Court. He has placed reliance on the decisions of the Supreme Court reported in AIR 1970 Supreme Court, 1 (Shankar Ramchandra Abhayankar v. Krishnaji Dattatraya Bapat) and AIR 1981 Supreme Court, 960(Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. The Workmen and Anr.). There is no doubt that invoking the revisional jurisdiction of a higher Court means invocation of the appellate power. However, there is a basic difference in the sense that though the appellate jurisdiction may be as wide as that of the trial Court, the revisional jurisdiction of a Court is normally hedged and circumscribed by various limitations. The revisional jurisdiction of a higher Court as contemplated in Section 115, Code of Civil Procedure, is definitely much narrower than the appellate jurisdiction as contemplated under the said Code. Therefore, it is not possible to accede to the contention of the learned counsel for the opposite parties that the impugned order may be taken to have been passed in the revisional jurisdiction of the Additional District Judge.
5. The learned counsel for the opposite parties has also submitted in the alternative that in case the impugned order is not taken to have been passed in the exercise of revisional jurisdiction, the matter may be remanded to the Court below to reconsider the matter treating the appeal to be a Civil Revision. The question is whether in the peculiar facts and circumstances of the present case, such a course should be adopted. In the present case, as ex parte decree has been set aside and the party has been given an opportunity to contest the suit. The trial Court had exercised its discretion in a particular manner by accepting the explanation furnished by the defendant relating to the circumstances under which defendant No. 2 did not participate in the suit even after filing of written statement. An application for condonation of delay had also been filed by defendant No. 2 and believing his explanation, the trial Court had condoned the delay. Even assuming that the trial Court had erroneously appreciated the facts, it cannot be said that any jurisdictional error had been committed by the trial Court which needs to be corrected in exercise of revisional power of the Court. The Additional District Judge had observed that since defendant No. 2 had appeared and filed written statement, the period of limitation for filing application under Order 9, Rule 13 was thirty days from the date of the ex parte decree. There is no dispute about the proposition of law that when notice in a case has been served on a defendant, the period of limitation for setting aside an ex parte decree is thirty days from the date of decree. However, even when an application under Order 9, Rule 13 is filed after the period of limitation, Section 5 of the Limitation Act is applicable and lack of actual knowledge may, depending upon the facts and circumstances of a particular case, constitute sufficient cause for condoning the delay. As a matter of fact, the trial Court never held that the period of limitation started from the date of knowledge of defendant No. 2, but it condoned the delay in filing the application on a finding that factually defendant No. 2 came to know about the ex parte decree subsequently. Since the finding of a Court on appreciation of evidence, however erroneous that may appear, is ordinarily not to be interfered in revisional jurisdiction, I do not consider it a fit case for remitting the matter to the Court below for the purpose of disposing of the appeal as a revision, as such course would be an exercise in futility keeping in view the well-settled principle that ordinarily a revisional Court should not disturb the findings of the Court below, more so, where substantial justice has been done.
6. For the aforesaid reasons, I allow the Civil Revision and set aside the order of the Additional District Judge in Misc. Appeal No. 7/94. The net result is that the suit has to be decided afresh by giving all parties opportunity of adducing fresh evidence. Initially defendants 1 and 2 had filed a joint written statement. After the death of defendant No. 1, his legal representative has for all practical purposes, disowned the written statement filed by her husband. In the peculiar facts and circumstances of the present case, I permit her to file a separate written statement. The trial Court should do well to dispose of the matter as expeditiously as possible, preferably within a period of six months. Needless to point out that the trial Court shall dispose of the suit on its own merit on the basis of evidence to be adduced before it.
There will be no order as to costs.