Orissa High Court
Kanchanbala Rath And Others vs Sri Sri Radhamadhab Jew Bije .... Opp. ... on 19 December, 2022
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 911 OF 2018
Kanchanbala Rath and others .... Petitioners
Mr. Pravakar Behera, Advocate
-versus-
Sri Sri Radhamadhab Jew Bije .... Opp. Party
Mr.Arun Kumar Das, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 19.12.2022 8. 1. This matter is taken up through hybrid mode.
2. The Petitioners in this CMP seek to assail the order dated 11th April, 2018 (Annexure-3) passed by learned Additional District Judge, Jagatsinghpur in F.A.O. No.48 of 2011, whereby allowing the appeal, order dated 24th March, 2011 (Annexure-2) passed by learned Civil Judge (Senior Division), Jagatsinghpur in Misc. Case (C.M.A.) No.400 of 2000 (arising out of T.S. No.109 of 1995) filed under Order IX Rule 4 C.P.C. has been set aside.
3. It is submitted by Mr. Behera, learned counsel for the Petitioners that the Opposite Party-deity is a public religious institution and is managed by the Commissioner of Endowment. T.S. No.109 of 1995 was filed for permanent injunction and ancillary relief. When the suit was posted for hearing, on an application filed by the Plaintiff-Opposite Party under Order VI Rule 17 C.P.C., the matter was posted to 16th October, 2000. Since none represented on behalf of the Petitioners to pursue the petition under Order VI Rule 17 C.P.C., learned trial Court dismissing the said petition on 16th October, 2000 posted the matter to 14th November, 2000 for hearing. On the said date, the Page 1 of 4 // 2 // suit was dismissed for default. An application under Order IX Rule 4 C.P.C. was filed by the Plaintiff-Opposite Party for restoration of the suit. Learned trial Court disbelieving the plea of the Plaintiff-Opposite Party, holding that the same was a year old suit and the applicant was not the Managing trustee of the deity (Plaintiff), dismissed the petition. Assailing the same, the Opposite Party-deity preferred appeal under Order XLIII Rule 1(d) C.P.C. in F.A.O. No.48 of 2011. Learned appellate Court erroneously holding that learned trial Court ought to have considered the said application under Order IX Rule 9 C.P.C. and the Opposite Party should have been given an opportunity to establish sufficient cause for his non-appearance on the date of hearing, allowed the appeal and remitted the matter back to learned trial Court for consideration of application for restoration of the suit afresh giving opportunity of hearing to the parties.
4. It is his submission that the representative of the Plaintiff was present on the date, when the matter was taken up for hearing. Since none represented the Plaintiff at the time call, learned trial Court has committed no error in dismissing the suit for default. Further no sufficient cause has been assigned by the Plaintiff-Opposite Party for his non-appearance on the date of hearing. Hence, learned appellate Court should not have lightly reversed the said order and remitted the matter to learned trial Court for fresh adjudication. In that view of the matter, he prays for setting aside the impugned order under Annexure-3 and to uphold the order passed by learned trial Court under Annexure-2.
5. Learned counsel for the Opposite Party, however, submits that he has lost his file and prays for an adjournment.
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6. As the matter is pending before this Court since, 2018 and it relates to a suit of 1995, this Court without entertaining the prayer for adjournment made by learned counsel for the Opposite Party, proceeds with the matter on merit.
7. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, more particularly, the order passed by learned Civil Judge (Senior Division), Jagatsinghpur under Annexure-2, it reveals that learned trial Court has discussed the evidence of the parties. But, without recording a finding on oral as well as documentary evidence available on record, came to hold that since the Plaintiff-Opposite Party was absent on repeated calls on 14th November, 2000 when the suit was posted for hearing, dismissed it for default. It is further held that since the matter relates to an age old suit, it is not desirable to allow such application. Learned appellate Court, however, at Annexure-3 has discussed the materials on record and position of law. It is observed that although the application was filed under Order IX Rule 4 C.P.C., but it was an application filed under Order IX Rule 9 C.P.C., as the suit was dismissed for default on the date, it was called for hearing. As such, the appeal was held to be maintainable. Since learned trial Court did not make any endeavour to come to a conclusion as to whether there was sufficient cause for non-appearance of the Plaintiff-Opposite Party before learned trial Court when the matter called for hearing, learned appellate Court remitted the matter for fresh adjudication.
8. In view of the above, this Court is of the considered opinion that learned appellate Court has committed no error in remitting the matter to learned trial Court for fresh adjudication of Page 3 of 4 // 4 // the petition for restoration of the suit to record a findings with regard to sufficient cause, if any, for non-appearance of the Plaintiff-Opposite Party on the date when the suit was called for hearing.
9. Accordingly, the CMP being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra)
ms Judge
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